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Thursday, 12 December 2002
Page: 7948


Senator MARK BISHOP (5:57 PM) —by leave—I move opposition amendments (3), (10), (17), (27), (4), (16), (23), (5), (R6), (7), (8), (9), (11), (18), (28), (12), (19), (29), (13), (20), (30), (2), (14), (15), (21), (22), (24), (25) and (26) on sheet 2791:

(3) Schedule 1, item 12, page 9 (lines 23 to 33), omit subsection (4), substitute:

(4) In having regard to a person's capacity to comply with the terms of a participation agreement and the person's needs, the Secretary is to take into account, but is not limited to, the following matters:

(a) the person's education, experience, skills, age, disability, illness, mental and physical condition; and

(b) the state of the local labour market and the transport options available to the person in accessing that market; and

(c) the participation opportunities available to the person; and

(d) the family and caring responsibilities of the person, (including those arising from any significant adverse effect on a PP child of a person that would result from the person's compliance with the terms of the agreement); and

(e) current court proceedings in the Family Court or criminal courts or current child welfare concerns, such as drugs or school truanting; and

(f) the length of travel time required for compliance with the agreement; and

(g) the financial costs of compliance with the agreement, such as travel costs, and the capacity to pay for such compliance; and

(h) any other matters that the Secretary or the person considers relevant in the circumstances.

(10) Schedule 1, item 12, page 12 (line 28) to page 13 (line 4), omit subsection (4), substitute:

(4) In having regard to a person's capacity to comply with the terms of a participation agreement and to the person's needs, the Secretary is to take into account, but is not limited to, the following matters:

(a) the person's education, experience, skills, age, disability, illness, mental and physical condition; and

(b) the state of the local labour market and the transport options available to the person in accessing that market; and

(c) the participation opportunities available to the person; and

(d) the family and caring responsibilities of the person, (including those arising from any significant adverse effect on a PP child of a person that would result from the person's compliance with the terms of the agreement); and

(e) current court proceedings in the Family Court or criminal courts or current child welfare concerns such as drugs or school truanting; and

(f) the length of travel time required for compliance with the agreement; and

(g) the financial costs of compliance with the agreement, such as travel costs, and the capacity to pay for such compliance; and

(h) any other matters that the Secretary or the person considers relevant in the circumstances.

(17) Schedule 1, page 20 (after line 13), after item 21, insert:

21A Subsection 544B(4)

Repeal the subsection, substitute:

(4) In having regard to a person's capacity to comply with an agreement, the Secretary is to take into account, but is not limited to the following matters:

(a) the person's education, experience, skills, age, disability, illness, mental and physical condition; and

(b) the state of the local labour market and the transport options available to the person in accessing that market; and

(c) the participation opportunities available to the person; and

(d) the family and caring responsibilities of the person; and

(e) the length of travel time required for compliance with the agreement, by reference to what constitutes unreasonably difficult commuting for the purposes of paragraph 601(2A)(g); and

(f) the financial costs of compliance with the agreement, such as travel costs, and the capacity to pay for such compliance; and

(g) any other matters that the Secretary or the person considers relevant in the circumstances.

(27) Schedule 5, page 45 (after line 29), after item 11A, insert:

11B Subsection 606(4)

Repeal the subsection, substitute:

(4) In having regard to a person's capacity to comply with an agreement, the Secretary is to take into account, but is not limited to the following matters:

(a) the person's education, experience, skills, age, disability, illness, mental and physical condition; and

(b) the state of the local labour market and the transport options available to the person in accessing that market; and

(c) the participation opportunities available to the person; and

(d) the family and caring responsibilities of the person; and

(e) the length of travel time required for compliance with the agreement, by reference to what constitutes unreasonably difficult commuting for the purposes of paragraph 601(2A)(g); and

(f) the financial costs of compliance with the agreement, such as travel costs, and the capacity to pay for such compliance; and

(g) any other matters that the Secretary or the person considers relevant in the circumstances.

(4) Schedule 1, item 12, page 10 (lines 6 to 10), omit paragraphs (a) and (b), substitute:

(a) is satisfied that the terms of the agreement were intended to assist the person over time in gaining employment or undertaking study or training; and

(b) has made reasonable attempts to contact the person in relation to the requirement to comply with the terms of the agreement (and has documented each attempt to contact); and

(c) if contact was able to be made, has had regard to the reasons, if any, provided by the person for not complying with the terms of the agreement; and

(d) has confirmed the adequacy of the support that the Secretary agreed to provide under the agreement.

(16) Schedule 1, page 20 (after line 10), after item 20, insert:

20A After subsection 544(2)

Insert:

Secretary must contact person before determining failure to comply with terms

(3) The Secretary must not determine that a person has failed to take reasonable steps to comply with the terms of a youth allowance activity agreement unless the Secretary:

(a) is satisfied that the terms of the agreement were intended to assist the person over time in gaining employment or undertaking study or training; and

(b) has made reasonable attempts to contact the person in relation to the requirement to comply with the terms of the agreement (and has documented each attempt to contact); and

(c) if contact was able to be made, has had regard to the reasons, if any, provided by the person for not complying with the terms of the agreement; and

(d) has confirmed the adequacy of the support that the Secretary agreed to provide under the agreement.

(23) Schedule 1, page 20 (before line 30), before item 27, insert:

26C After subsection 593(2A)

Insert:

(2B) The Secretary must not determine that a person has failed to take reasonable steps to comply with the terms of a Newstart Activity Agreement unless the Secretary:

(a) is satisfied that the terms of the agreement were intended to assist the person over time in gaining employment or undertaking study or training; and

(b) has made reasonable attempts to contact the person in relation to the requirement to comply with the terms of the agreement (and has documented each attempt to contact); and

(c) if contact was able to be made, has had regard to the reasons, if any, provided by the person for not complying with the terms of the agreement; and

(d) has confirmed the adequacy of the support that the Secretary agreed to provide under the agreement.

(5) Schedule 1, Item 12, page 10 (line 18), after “subsection (2)”, insert “or (2A)”.

(R6) Schedule 1, item 12, page 10 (after line 34), after subsection (2), insert:

Exempt persons—periodic exemptions

(2A) For the purposes of subsection (1), a person is an exempt person for a particular period determined by the Secretary under this subsection if:

(a) the person has one or more PP children:

(i) who suffer from a physical, intellectual or psychiatric disability; and

(ii) whose care needs are such that the person could not be reasonably expected at that time to comply with the terms of a participation agreement; or

(b) a critical event occurs that was not within the person's control (eg family or personal crisis, the Secretary is satisfied the person has separated from his or her partner on a permanent or indefinite basis in the past 26 weeks, person's house burning down, evidence of domestic violence, serious illness of PP children) and, as a result, the person is temporarily unable to comply with the terms of a participation agreement.

(2B) At any one time the maximum period for which the Secretary may determine that a person is an exempt person under subsection (2A) is:

(a) if paragraph (2A)(a) applies to the person—12 months;

(b) if paragraph (2A)(b) applies to the person—26 weeks.

(2C) The Secretary may make more than one determination under subsection (2A) in respect of a person.

(7) Schedule 1, item 12, page 11 (line 29) to page 12 (line 2), omit subsection (1), substitute:

(1) A participation agreement is a written agreement between the Secretary and another person, in a form approved by the Secretary, under which the person agrees to undertake, during each period of 26 weeks that the agreement is in force, approved activities anticipated to take 150 hours or such lesser number of hours as are agreed between them. Participation agreements will set out the support that the Secretary undertakes to provide to assist the person to meet his or her participation requirements in the negotiated agreement.

(8) Schedule 1, item 12, page 12 (line 17), after “program” add “as defined in section 23 of the Social Security Act 1991”.

(9) Schedule 1, item 12, page 12 (lines 19 to 21), omit paragraph (k), substitute:

(k) another activity that the Secretary regards as suitable for the person, including voluntary work, and that is agreed to between the person and the Secretary.

(11) Schedule 1, item 12, page 13 (line 7), after “varied”, insert “(in negotiation with the person)”.

(18) Schedule 1, page 20 (after line 13), after item 21, insert:

21B Paragraph 544B(5)(a)

After “varied”, insert “(in negotiation with the person)”.

(28) Schedule 5, page 45 (after line 29), after item 11B, insert:

11C Paragraph 606(5)(a)

After “varied”, insert “(in negotiation with the person)”.

(12) Schedule 1, item 12, page 13 (after line 13), after subsection (5), insert:

Cooling-off period

(5A) Within 14 days of the terms of the participation agreement being approved, those terms may be varied by the person with the approval of the Secretary.

Requirement to notify

(5B) The Secretary must advise the person of the effect of subsection (5A).

Avoidance of doubt

(5C) To avoid doubt, subsection (5A) does not prevent the person at any time from requesting a review of an agreement under paragraph (5)(c).

(19) Schedule 1, page 20 (after line 13), after item 21A, insert:

21C After subsection 544B(5)

Insert:

Cooling off period

(5A) Within 14 days of the terms of the agreement being approved, those terms may be varied by the person with the approval of the Secretary.

Requirement to notify

(5B) The Secretary must advise the person in writing of the effect of subsection (5A).

Avoidance of doubt

(5C) To avoid doubt, subsection (5A) does not prevent the person at any time from requesting a review of an agreement under paragraph (5)(c).

(29) Schedule 5, page 45 (after line 29), after item 11C, insert:

11D After subsection 606(5)

Insert:

(5A) Within 14 days of the terms of the agreement being approved, those terms may be varied by the person with the approval of the Secretary.

(5B) The Secretary must advise the person in writing of the effect of subsection (5A).

(5C) To avoid doubt, subsection (5A) does not prevent the person at any time from requesting a review of an agreement under paragraph (5)(c).

(13) Schedule 1, item 12, page 14 (line 23), after “agree to”, insert “the reasonable”.

(20) Schedule 1, page 20 (after line 25), after item 24, insert:

24A Subparagraph 544C(1)(b)(iii)

After “agree to” insert “the reasonable”.

(30) Schedule 5, page 45 (before line 30), before item 12, insert:

11E Subparagraph 607(1)(iii)

After “agree to”, insert “the reasonable”.

(2) Schedule 1, item 11, page 7 (lines 13 to 15), omit subsection (3), substitute:

(3) Subject to subsection (4), the participation agreement breach non-payment period starts on the 14th day after the day on which the notice is given to the person.

(14) Schedule 1, item 13, page 17 (after line 25), after subsection (1), insert:

Notice to contain reasons

(1A) A notice under subsection (1) must contain reasons why the participation agreement breach rate reduction period applies to the person.

(15) Schedule 1, item 13, page 17 (lines 27 to 29), omit subsection (2), substitute:

(2) Subject to subsection (3), the participation agreement breach rate reduction period starts on the 14th day after the day on which the notice is given to the person.

(21) Schedule 1, page 20 (before line 26), before item 25, insert:

24B Subsection 550C(2)

Repeal the subsection, substitute:

General rule

(2) Subject to subsection (3) and to sections 550D and 550E, the activity test non-payment period starts on the 14th day after the day on which the notice is given to the person.

(22) Schedule 1, page 20 (after line 30), after item 26, insert:

26A Subsection 557B(2)

Repeal the subsection, substitute:

General rule

(2) Subject to subsection (3) and to section 557C, the activity test breach rate reduction period starts on the 14th day after the day on which the notice is given to the person.

26B Subsection 558B(2)

Repeal the subsection, substitute:

General rule

(2) Subject to subsection (3), the administrative breach rate reduction period starts on the 14th day after the day on which the notice is given to the person.

(24) Schedule 1, page 21 (after line 11), after item 30, insert:

30C Subsection 630B(2)

Repeal the subsection, substitute:

(2) Subject to subsection (3) and (6) and to sections 630BA and 630BB, the activity test non-payment period starts on the 14th day after the day on which the notice is given to the person.

(25) Schedule 1, page 21 (after line 28), after item 34, insert:

34B Subsection 644AB(2)

Repeal the subsection, substitute:

(2) Subject to section 644AC, the activity test breach rate reduction period starts on the 14th day after the day on which the notice is given to the person.

34C Subsection 644C(2)

Repeal the subsection, substitute:

(2) Subject to subsections (3) and (6), the administrative breach rate reduction period starts on the 14th day after the day on which the notice is given to the person.

(26) Schedule 5, page 45 (after line 29), after item 11, insert:

11A After subsection 606(1)

Insert:

(1A) If the person is at least 50 years of age but less than 60 years of age, the particular number of job vacancies shall not exceed 24 per 12 weeks in the period specified in the notice.

(1AB) If the person is at least 60 years of age, the particular number of job vacancies shall not exceed 12 per 12 weeks in the period specified in the notice.

(1AC) Subsection (1A) does not apply unless the person has been receiving an income support payment for a continuous period of at least 9 months and the person satisfies the Secretary that the person has no recent workforce experience.

Turning first to opposition amendments (3), (10), (17) and (27) on sheet 2791, which relate to factors for compliance, the opposition is of the view that these amendments will improve the formulation of activity agreements for parents and also for mature age and other income support recipients who are required to enter into activity agreements. The amendments will ensure that a person's circumstances are fully considered before determining the nature of the agreements. The government touted the introduction of the so-called `preparing for work' agreements by saying that they allowed a tailor-made plan to be formulated to help a person return to work. This sounded good in principle, but the delivery was anything but that. Insufficient time is devoted to the negotiation of these agreements that set out the requirements of the job seeker. The agreement should of course take into account the job seeker's circumstances. On balance, they are in some instances lacking.

Accordingly, these amendments seek to set out the factors that must be considered when formulating the agreements. In the case of parents, the negotiation of the terms of the agreement would be more thorough, including recognition of the needs of children, the health of a parent, transport costs and travel time, the financial costs of compliance, local employment conditions and current proceedings before a court or child welfare body. In the case of other job seekers, including the mature age Newstart recipients and Youth Allowance recipients, the negotiation of the agreements will be more thorough, including recognition of their health, transport costs, other costs of compliance, any court proceedings and any other matters that are relevant. In some instances the negotiation of agreements by Centrelink is thorough; in other instances it is not. It is our view that codifying the steps involved in negotiating agreements will improve service delivery and ensure requirements in agreements are appropriate.

So this group of amendments, as outlined before, goes to the heart of the compliance debate. It is a continuation of the debate under amendment (1). That amendment required that the minister conduct an evaluation of the measures contained in schedules 1 and 5. This group of amendments seeks to improve the formulation of activity agreements for parents and mature age people. These factors were discussed in the Senate committee report. A central feature of the amendments is to ensure that a person's circumstances are fully considered before determining the nature of agreements. The Senate committee made a number of points. In the case of parents, it said that problems and issues were identified where parents should not be forced to act against the reasonable care needs of their children, that participation requirements should not unreasonably interfere with care of a dependent child and that due recognition needed to be given to the needs of children. Hence, the details of this group of amendments go to the needs of children, the health of the parent, transport costs, the financial costs of compliance and proceedings before courts or child welfare bodies. I refer in this context to amendment (17)—and there is a mistake in subclause (4), paragraph (e) of that amendment. To make things consistent and accurate, I seek leave to amend that amendment to delete paragraph 601(2A)(g) and insert in its place paragraph 541D(1)(g).

Leave granted.


Senator MARK BISHOP —I turn next to amendments (4), (16) and (23) on sheet 2791, which deal with the factors to consider before determining the failure to comply. The opposition believe that these amendments will improve the decision-making process where there is a view that a person has failed to comply with their activity agreement. There will be improved steps before application of breach. Often this is not given sufficient thought and breaches can be wrongly imposed. With this group of amendments, before contemplation of the application of a breach and in determining whether a parent has complied with the terms of a participation agreement, the secretary will be required to: (1) review whether those terms are likely to improve the prospects of a person gaining employment; (2) make reasonable steps to contact the person; (3) have regard to reasons for not complying; and (4) review whether appropriate support has been provided to the person under the terms of the agreement. We submit that these amendments will ensure better outcomes from the decision-making process.

The heart of this group of amendments can be found in chapter 3 of the Senate report—in particular, in paragraph 3.7 on page 36. Essentially these amendments seek to codify or legislate the concept of a fair go. The opposition have expressed support in the past for activity agreements. We do not say that it is unfair to impose obligations upon recipients. But it is reasonable to expect that the system of benefit delivery will have integrity and transparency and not be subject to the whim or desire of individual case officers. The amendments seek to provide a guide on the matters that a secretary should consider before breaching a recipient. The origin of those matters may be found in the Pearce review. This is essentially a new obligation, where the amendments seek to ensure that the secretary review the terms of participation agreements under four areas—that is, whether the terms are likely to improve the prospects of persons gaining employment, that reasonable steps have been taken to contact the person, that there is regard for reasons of noncompliance and that there is a review of whether appropriate supports have been provided.

Turning next to amendments (5) and (R6) on sheet 2791, these amendments relate to temporary exemptions and specify the period in which an exemption from the parenting payment activity agreement may apply and the circumstances in which such an exemption would be granted. Section 501(2) of the bill details the exemptions from the parenting payment activity agreement. When the bill was considered by the references committee there was a great deal of concern about the narrowness of the exemption clause as it was drafted. Accordingly these two amendments in this case broaden the circumstances where an exemption may be granted to include more general provisions for children with disabilities, domestic violence and relationship breakdown.

Labor's two amendments also enable these exemptions to apply on a temporary basis, with the option for renewal of the exemption. These exemptions are important, as they enable a period of grace where a parenting payment recipient may not be subject to the activity agreement at crucial times, such as following a marriage breakdown. These two amendments relate to the following categories: disabilities, personal circumstances that restrict the capacity to participate, extreme problems of homelessness or housing instability and partner separation. The amendments seek to cover circumstances giving rise to the need for exemption of a temporary nature. We believe the appropriate analogy is emergency care. Amendments (5) and (R6) are responses to Senate recommendations 3 and 4 on pages 16 and 17.

I will turn now to amendment (7), which has to do with the form of agreement. This amendment recasts the general nature of the participation arrangements that parenting payment recipients will be required to enter into when they are not exempted from participation requirements. The amendment is different in a number of ways to that which the government originally proposed. First, the redrafted clause provides for a more general requirement in relation to the number of hours of participation that a parent is required to undertake. Whilst 150 hours over a six-month period is not onerous—around six hours per week—there should be more flexibility in relation to this requirement. Whilst a fewer number of hours may be negotiated as part of an agreement, Labor is concerned that circumstances may change in the course of the agreement that may restrict their hours of participation but not necessarily trigger a temporary exemption. Whilst we accept that a new agreement may be negotiated for a fewer number of hours, we believe there should be some buffer within an already negotiated agreement. In addition to this flexibility, the new clause will also require the secretary to provide up-front details of the support that will be given under the agreement including, for example, training and assistance with child-care arrangements.

Turning now to opposition amendments (8) and (9) relating to approved activities, these two amendments clarify the drafting of the sections in the bill that specify the range of activities that may constitute an activity agreement. Amendment (8) clarifies that the reference to a rehabilitation program is in specific reference only to a disability rehabilitation program, not any other rehabilitation program such as a drug rehabilitation program, which would be dealt with by the personal support program. Amendment (9) ensures that some type of volunteer work could occur only with agreement of the parent.

Amendments (11), (18) and (28) come under the category of variation of agreement. These amendments clear up provisions in relation to the variation of parenting payment, Newstart and Youth Allowance activity agreements. As the provisions are currently drafted and exist in the Social Security Act, the terms of an approved agreement may be varied by the secretary without negotiation with the person who the agreement applies to. This is clearly unfair, and these amendments will require that the secretary negotiate variations to the agreements that apply to them.

Turning now to amendments (12), (19) and (29) under the heading of cooling-off period, these amendments follow a recommendation of the Senate Community Affairs References Committee, which examined this bill, and also the Pearce report. They provide for a 14-day cooling-off period where a person may negotiate with the secretary a change to the terms of an activity agreement. The amendments also require that the secretary advise the person of their rights to seek a change to the agreement in accordance with the cooling-off period. Labor has decided to move these amendments on advice that many people are forced to sign activity agreements without having had time to consider the requirement they are being asked to agree to. The amendments will ensure that they are advised of their right to change the agreement with negotiation, which will allow job seekers to consider carefully the agreement terms and whether more appropriate terms may be negotiated.

The evidence to the Senate committee highlighted a range of shortcomings in this area of the cooling-off period. The Senate committee concluded that the cooling-off period should be available. It allows people to consider the nature of the agreement and to seek advice, which is considered standard practice in legal negotiations where there is a possibility of power imbalance or knowledge. The Senate committee also found that there was a two-day cooling-off period but that it is accessed by very few claimants because so few of them are aware of it. We believe this particular issue is important because it allows for full disclosure, full consideration of obligations and the making of informed decisions. In the long run, if you have full disclosure, full consideration of obligations entered into and you make an informed decision, with respect, that would probably encourage fuller compliance because of a deeper understanding of the nature of the agreement.

I will turn now to amendments (13), (20) and (30) under the heading terms of the agreement. This agreement relates to activity agreements for Youth Allowance—specifically, the provisions concerning the failure of a job seeker to agree to the terms of the agreement. Currently a job seeker may be breached for failing to agree to the terms of an agreement, even when the job seeker may disagree with the terms put forward by the secretary on the grounds that they are unreasonable. The introduction of preparing for work agreements was supposed to involve a more tailored approach to planning a pathway back to work. It was good in principle, but in practice job seekers are presented with an agreement which is pretty much a fait accompli. If they fail to agree with it, they may be breached even if they view some elements as unreasonable. These amendments simply insert the term `reasonable' into the clause that allows a job seeker to be breached for failing to enter into an agreement because of a disagreement over the terms. Following these amendments, the clause will allow a person to be breached only if they fail to agree to the reasonable terms of the agreement.

Turning now to amendments (2), (14), (15), (21), (22), (24) and (25) under the heading of requirement for notice, these amendments will require 14-days notice to be given to all income support recipients prior to the application of a breach penalty. It is a recommendation of the Pearce report into breach penalties. Currently, the breach penalty applies from the date of the notice. This leaves many with no capacity to rearrange their budgets to take into account the reduction in their benefits. (Extension of time granted) Often it leaves job seekers without money for things like rent, food, bills and other financial commitments. These amendments will bring the breach regime closer into line with most other statutory penalties, which often allow a person 28 days or more to pay fines. The charities in particular have raised this issue as one of concern, as they deal with people suddenly left without financial means. The amendments will also allow sufficient time for a person to take steps to contest a penalty if it has been imposed unfairly. Currently, many lose payments and suffer financial hardship, only then to have the penalties overturned on appeal. Providing some notice is, by community standards, the fair thing to do.

This group of amendments is relatively straightforward. Essentially, it seeks to provide that the participation agreement breach non-payment period will start 14 days after the date on which the notice is given to the person. This particular issue was examined in detail by the Senate committee. The opposition makes a number of points. Generally, welfare and advocacy groups are opposed to the provision as it currently is in the bill. They argue that the current system is harsh, counterproductive and diminishes a person's capacity to seek work. In particular, the penalty is felt most harshly by those people who are sole parents with dependent children. Removing income support for these groups would lead to a serious risk of financial harm for their families. The imposition of immediate breaches is really counterintuitive. We ask why a single parent with parental responsibilities would deliberately flout the system and open themselves up to financial harm. We suspect that very few deliberately engage in breaching activities. We note that there was no evidence given to the Senate committee on the number of prosecutions initiated and successful in this area. The opposition believes that the emphasis in these particular clauses is incorrect. It should be to encourage compliance and not act as a form of amendment.

That takes me to opposition amendment (26) under the heading of number of job vacancies. This amendment will ensure that the dignity of mature age job seekers is kept intact by ensuring that unreasonable demands to look for work are not required for those over the age of 50. For those aged 50 to 60, the maximum requirement for applications for work would be no greater than two per week or 24 over each three-month reporting period—that is, half the maximum requirement for young job seekers. For those aged 60 to age pension age, the maximum requirement would be no more than one per week or 12 over each three-month reporting period. It should be pointed out that the amendment in no way prohibits the job seeker from applying for more vacancies. It does, however, place a cap on the number of applications that the person would be forced to undertake under the activity test and activity agreement. That concludes my discussion of all amendments on sheet 2791.