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Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021

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2019 - 2020 - 2021

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

SOCIAL SECURITY LEGISLATION AMENDMENT (STREAMLINED PARTICIPATION REQUIREMENTS AND OTHER MEASURES) BILL 2021

 

EXPLANATORY MEMORANDUM

 

 

 

Circulated by authority of the Minister for Employment, Workforce, Skills, Small and Family Business the Hon Stuart Robert MP

 

 

 

 



 

TABLE OF CONTENTS

 

Abbreviations                                                                                                            2

Outline                                                                                                                       3

Financial Impact Statement                                                                                                 14

Consultation                                                                                                              14

Statement of Compatibility with Human Rights                                                    15

Notes on clauses                                                                                                        39

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021

 

Abbreviations used in this Explanatory Memorandum

Social Security Act means the Social Security Act 1991

Administration Act means the Social Security (Administration) Act 1999

Social security law means the above Acts and legislative instruments made under either of them

Farm Household Support Act means the Farm Household Support Act 2014

Legislation Act means the Legislation Act 2003

Participation payments means Parenting Payment, Youth Allowance other than for apprentices or full-time students, Jobseeker Payment and, for nominated visa holders, Special Benefit

The department means the Department of Education, Skills and Employment

The new model means the New Employment Services Model

The Bill means the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021

 

 

 

 

 

 

 

 

 

 

Outline of the Bill

The Bill modernises and streamlines social security law to support the New Employment Services Model which will operate from July 2022, clarifies provisions supporting current policy, reduces duplicated and redundant provisions, and ensures that the law is fit for purpose. The Bill also includes amendments supporting the 2021-22 Budget measure to align payment commencement for those job seekers who are referred to online employment services with those who are referred to a provider.

Modernise social security law to support the New Employment Services Model

Much of the social security law relating to mutual obligation requirements was written several decades ago and has not kept pace with changes to employment services, mutual obligation requirements or technology. Many provisions were also originally drafted to support payments that have ceased or substantially changed in nature.

The social security law cannot remain frozen in time. It needs to support current policies and planned innovation, not policies that may have been relevant years or decades ago.

The changes in this Bill are timely as the innovative New Employment Services Model (new model), will change the way that employment services are delivered. The new model will improve digital servicing capabilities through a sophisticated digital platform, while still providing tailored support for those who need it. This will lead to a more effective and efficient employment services system for job seekers, employment service providers and employers.

Schedule 1 of the Bill amends the social security law to better support the new model and its objectives while still maintaining the protections for job seekers that currently exist in social security law.

Job seekers must comply with mutual obligation requirements to remain eligible for their payments. These consist of requirements in employment pathway plans, also known as Job Plans, and the activity test, i.e. the requirement to actively seek and be willing to undertake suitable paid work in Australia.

However, the social security law concerning mutual obligations dates back 30 years to changes introducing Newstart Allowance in 1991 and even earlier. As of 1991, payment arrangements were very different - job seekers received Job Search Allowance for 12 months, and needed to comply with the activity test. After 12 months unemployment, job seekers needed to separately apply for Newstart Allowance and agree a Newstart Activity Agreement with the Commonwealth Employment Service.

Since then, Job Search Allowance has been abolished, Newstart Allowance has been replaced with Jobseeker Payment, and Newstart Activity Agreements have ceased, replaced with Employment Pathway Plans. The Commonwealth Employment Service has also ceased, and has been replaced with employment services delivered by non-Government organisations.

Despite the changes in payments and employment services that have occurred since then, the provisions relating to mutual obligation requirements and the circumstances when a person will be exempt from them remain very similar to what was introduced in 1991 or before. 

Similarly, when employment pathway plans were introduced, job seekers always directly entered a plan with another person - usually a person engaged by an employment services provider who was a delegate of the Employment Secretary. However, from July 2018 the Government began trialling online employment services, which allowed job-ready job seekers to enter into an employment pathway plan and report their job search activity online. In response to COVID-19, online employment services were significantly expanded. In addition, as mentioned above, the Government announced that the new model will be commencing in July 2022, building on evidence from the New Employment Services Trial (NEST) and the Online Employment Services Trial. As part of the new model, the most job-ready job seekers will self-manage their requirements using digital servicing.

Departmental evidence shows that digital servicing is effective. As at 31 January 2021, over 400,000 referrals to Online Employment Services since 20 March 2020 have exited and not returned to employment services. In addition, departmental post-program monitoring surveys have shown that:

·          73 per cent of participants were employed three months after exiting Online Employment Services;

·          80 per cent of participants were in work and/or study three months after exiting Online Employment Services; and

·          for participants who exited the NEST Digital Services, 86.4 per cent were employed and 89.3 per cent had a positive outcome three months later.

 

These results demonstrate that job-ready job seekers are willing and able to self-manage their search for employment and can effectively achieve their pathway back to employment using online services.

However, current social security law does not adequately enable the best use of technology. The amendments in Schedule 1 of the Bill will better allow job seekers to use technology to access more flexibility and have greater control over how they meet their requirements.

Importantly, these changes do not mean that computers will be delivering employment services to job seekers. Nor will they enable computers to approve the content of employment pathway plans - far from it. 

Instead, human oversight and assistance remains an integral part of all employment services and will continue to do so. At any time, job seekers can contact a person in the Digital Services Contact Centre in the department who is trained to answer their questions and assist them with any difficulties, and the Bill requires that all job seekers will be able to enter an employment pathway plan with a human delegate if they choose.

The Bill also requires that before approving a plan the delegate must take into account the job seeker’s circumstances to the same extent as must be done under the current law. The Bill makes clear that a delegate cannot approve a plan if it would contain requirements which are unsuitable for the job seeker.      

Safeguards and more support for vulnerable job seekers under the new model

For those job seekers who opt to self-manage and decide for themselves what requirements are most beneficial for them (within guidelines set by the department, not a computer) the new arrangements will enable them to do so. If a job seeker is not satisfied with the choices about requirements which are presented to them by the online system, they will be able to discuss their plan with a human delegate. If they later become dissatisfied with their online plan, they will be able to vary it themselves online, or vary it with the assistance of a human delegate.

If the job seeker remains dissatisfied with their online plan, they will be able to have it reviewed, initially by the Digital Services Contact Centre, then if necessary by an authorised review officer, the Administrative Appeals Tribunal or a court. 

The Bill requires that when conducting a review about the content of a plan, the decision-maker must consider whether the online plan is suitable for the job seeker having regard to their circumstances. Entering a plan online will not prevent a job seeker from subsequently entering a plan with a human delegate if they choose (for example by calling the Digital Services Contact Centre, or requesting referral to a provider).  

Before a job seeker is offered the opportunity of entering a plan via the new online arrangements, they will have their circumstances assessed. Job seekers who are assessed as job-ready and able to use and access Digital Services will be able to choose to manage their requirements online, without being serviced by a provider. Similar to job seekers in provider servicing, job seekers in Digital Services will still need to meet requirements that match their capabilities, but how they report and manage those requirements will change and improve.

Safeguards built into the Digital Employment Services Platform will ensure people do not get left behind, including a Digital Services Contact Centre to provide advice and extra support via phone or email. In addition, existing safeguards built into compliance arrangements will ensure that before anybody faces any financial penalty for not meeting their requirements they will have the appropriateness of their requirements for their individual circumstances assessed twice by human delegates (Capability Interview and Capability Assessment). Further, job seekers are able to move to a provider of their choice at any time if they feel the online service is not meeting their needs.

Providing the ability for job-ready job seekers to manage their requirements through Digital Services will also allow resources to be redirected away from administration and into proactive support and tailored assistance for the most disadvantaged job seekers - who will be serviced by providers in face-to-face servicing.

This reflects a key recommendation of the Employment Services Expert Advisory Panel report, I Want to Work, which was to leverage the benefits of digital servicing for the most job ready to increase investment in those job seekers who are long-term unemployed or at risk of becoming so. Retaining and improving face-to-face servicing, in Enhanced Services, will deliver the personalised support needed to decrease the proportion of the caseload that are long-term unemployed or at risk of becoming long-term unemployed.

Making the law more understandable, removing redundant or repetitive provisions, and better supporting current policy

The social security law needs to address a wide range of factual circumstances which are relevant to an increasingly complex society. Due to outdated historical reasons and iterative amendments over the years, the social security law contains many provisions which are unnecessarily complicated, ambiguous or confusing. It is second in size only to the tax law and consists of primary legislation of over 3,000 pages in length plus well over 100 legislative instruments.  

This has sometimes led stakeholders to criticise the social security law as being too complex and lengthy, or “over-engineered”. In the 2004 Federal Court case of Secretary of the Department of Family and Community Services v Geeves [2004] 136 FCR 134 Weinberg J stated: “Regrettably, as each year goes by, the Social Security Act becomes still more complex, and less accessible to those who most need to understand it”. 

Earlier, the full Federal Court in Blunn v Cleaver [1993] 47 FCR 11 had commented that “Regrettably, the [Social Security Act] consists of a maze of provisions made the more complex by prolix definitions, provisos and exceptions. Both those who claim entitlements under it and those responsible for its administration will not always find it easy to discover whether or not a benefit is payable”.

Accordingly, from time to time, consolidation and streamlining of provisions is desirable, as recognised for example by the Senate Standing Committee on Legal and Constitutional Affairs in 1993 in its report titled The Cost of Justice: Foundations for Reform , which emphasised the need for the social security law to be comprehensible to members of the public who rely on it and to those who administer it (paragraphs 52, 53 and 119).  

In fact, the Social Security Act, when it commenced on 1 July 1991, was a consolidation of numerous other Acts. After 20 March 2000, the Administration Act consolidated the administration provisions of the Social Security Act, reducing the size and repetitive nature of the Social Security Act. 

The social security law has substantially increased in size since then, despite further consolidation or repeal of provisions from time to time. The Social Services Legislation Amendment (Welfare Reform) Act 2018 is a recent example of consolidation of parts of the social security law. As a result of that Act, Jobseeker Payment became the main working age payment, consolidating seven working age payments which existed at the time, into a single working age payment for those with capacity to work in the present or in the near future. 

There is now a need to consolidate and streamline the social security law provisions relating to mutual obligation requirements. These provisions are unnecessarily complex, repetitive and lengthy, as are the provisions about when a person will be exempt from these requirements. 

Mere complexity or volume of legislative provisions does not safeguard the rights of job seekers. Rather, it impedes job seekers from knowing their rights and causes inconvenience and inefficiency to stakeholders such as the general public, courts, the Administrative Appeals Tribunal, the Commonwealth Ombudsman, employment services providers, and legal and other practitioners.   

The amendments made by the Bill will reduce the size and repetitive nature of provisions in the Social Security Act which relate to mutual obligation requirements and the circumstances in which job seekers will be exempt from them - resulting in a net reduction of approximately 130 pages from the social security law. 

The changes will enable job seekers to better understand their obligations and therefore comply with them. It will also help them to understand their rights. 

The changes include discarding the unnecessary phrase “activity test”, which causes excessive complication in current provisions, and combining the requirement to seek and accept suitable paid work with the provisions dealing with employment pathway plan requirements. This is consistent with the longstanding practice that the requirement to seek and accept suitable paid work is included in employment pathway plans.

There are currently four sets of employment pathway plan provisions - one for each of the four participation payments which job seekers may receive. These are Parenting Payment, Youth Allowance other than for full-time students or apprentices, Jobseeker Payment and, for nominated visa holders, Special Benefit. These provisions will be consolidated into a single set of provisions relating to employment pathway plan requirements. 

The four sets of provisions relating to when paid work is unsuitable for a person will also be consolidated into a single set of provisions about unsuitable work in the employment pathway plan provisions. The consolidated provisions are nearly identical to the current provisions. 

One difference is that the new provisions make clear that work is not unsuitable for a person merely because they consider that they are too highly qualified to do it or would prefer a higher rate of pay. This is not a substantive change to the law as it reflects the manner in which courts and tribunals have interpreted the provisions but will send a clearer message that job seekers cannot expect to be supported by the tax payer if they turn down work which they are capable of safely doing merely because it is not their preferred type of work or preferred rate of pay.   

In relation to the circumstances in which job seekers will be exempt from mutual obligation requirements, these will also be consolidated into a single set of provisions, instead of having four separate but similar sets of provisions. 

In addition, rather than having separate and different provisions for activity test exemptions compared with employment pathway plan exemptions, the consolidated exemption provisions will treat those requirements in the same way, reflecting that if a person has an exemption from the requirement to look for work it is reasonable for them to also be exempt from other requirements such as to undertake training or participate in an employment program.

This is the way the provisions are administered in practice. To make clear this intention, in addition to the insertion of new consolidated provisions, a current provision which specifically permits some job seekers who are exempt from the requirement to look for work on medical grounds to be required to undertake other activities, disused in practice, is being repealed. 

The new single set of exemption provisions includes a general provision which enables the Employment Secretary or delegate to determine that a person is not required to satisfy employment pathway plan requirements if satisfied that circumstances exist that are beyond the person’s control and that in those circumstances it would be unreasonable to expect the person to comply with those requirements. It is intended that these arrangements would support existing policy and procedure with exemptions, and not in practice alter when exemptions would be granted.

The Employment Secretary or delegate may also determine that a person is not required to satisfy employment pathway plan requirements if satisfied in all the circumstances that the person should not be required to satisfy the employment pathway plan requirements - whether or not the circumstance was in the person’s control. For example, a decision to end a relationship may be within a person’s control but their circumstances may warrant an exemption in some cases, consistent with current policy. 

The new general exemption provisions are a more rational legislative approach because they are concise, applicable to all four payments without duplication, apply in relation to all mutual obligation requirements, and because they deal with the same subject matter in the same way while being flexible enough to properly take account of different circumstances according to the underlying principle that where circumstances exist that make it unreasonable to expect a person to comply with requirements they should not be expected to do so.   

While the general exemption provisions would adequately protect job seekers on their own, numerous specific exemption provisions have been retained. These include, for example, the specific exemptions relating to domestic violence, pregnancy, childbirth and caring responsibilities. Exemptions that result in higher payment rates for principal carers have also been retained. They have been retained in consolidated form, not duplicated four times. 

The Bill includes a provision to make clear that the specific exemptions which have been retained do not limit the scope of the general exemption provisions. Therefore, for example, even if the specific exemptions about domestic violence, pregnancy or childbirth or caring responsibilities do not apply to a person, they could still be granted an exemption under the new general provisions due to those circumstances. 

Consistent with current practice, the Bill also makes clear that exemptions can be retrospective, so if a domestic violence victim, or anyone whose circumstances warrant an exemption, does not immediately request an exemption after the domestic violence or other circumstances commenced, they will be able to have the exemption back-dated so that it will be clear that compliance action must not be taken for not meeting their usual mutual obligations in that period. Conversely, the Bill makes clear that when a delegate decides to end an exemption period, that cannot be done retrospectively. 

Many of the current exemption provisions contain time limits, such as 13, 14 or 16 weeks, on the period for which an exemption applies unless a decision to extend the exemption is made, even if there is no particular reason for the maximum legislated limit. 

The new general exemption provisions therefore do not require that time limits be placed on exemption periods, but will permit the delegate to do so where that may be appropriate. For example, it is envisaged that most medical incapacity exemptions will continue to be granted for up to 13-week periods. This will ensure that job seekers do not become disconnected from employment services, and ensures that job seekers may be referred to further assessment if warranted, for example assessment of their work capacity or for potential eligibility for other payments such as Disability Support Pension.  

In cases of more severe medical incapacity, longer exemption periods will continue to be appropriate, such as up to 52 weeks without reconsideration of medical evidence. This currently occurs in circumstances of serious illness, such as cancer, acquired brain injury, severe stroke, serious burns or serious physical injuries. In these cases, there is little prospect of significant improvement in the person’s medical condition within 13 weeks. Requiring the person to obtain an additional medical certificate every 13 weeks would be unreasonable, and so in practice is not done.

The Bill will also better support agile responses to exceptional circumstances, such as pandemics and bushfires. During both the 2019-20 bushfires and the COVID-19 health emergency it was appropriate to pause mutual obligation requirements. The changes better support the pausing of requirements for a broad class of persons, or throughout Australia, in exceptional circumstances like these.

The changes to exemptions provisions are not designed to increase or decrease the circumstances in which exemptions will in practice be granted, and nor is any change to policy or practice envisaged because of these amendments.

The amendments will, however, make the social security law easier to understand for those who rely on and administer it. They will provide additional reassurance to job seekers that they may be able to obtain exemptions if experiencing commonplace adverse events, even if their circumstances are not “ special”. 

They will also reassure job seekers that they may be able to obtain exemptions in relation to domestic violence, pregnancy, childbirth and caring responsibilities even if their circumstances do not fit within the unnecessarily complex or narrow current provisions about those matters. 

The amendments further make clear that if a domestic violence victim or other job seeker has an exemption this will apply not just to the requirement to look for and accept paid work but also to other employment pathway plan requirements, as noted above. 

In summary , the amendments made by Schedule 1 ensure shorter, better, simpler, clearer and more up-to-date provisions in the social security law. These will support better use of technology, more effective and efficient employment services, and maintain protections for job seekers. 

Job seekers will be more able to understand their obligations. Those who opt-in to the new online arrangements will be able to decide for themselves what requirements are most beneficial for them. This will mean job seekers are more likely to comply with their obligations and therefore more likely to obtain and maintain suitable paid work and less likely to be subject to compliance action for not meeting their requirements. 

Schedule 2 amends the social security law to provide legislative authority for spending for employment programs. Currently, the Australian Government delivers numerous employment programs designed to assist unemployed people, under-employed people and people who are at risk of losing their jobs, to find and keep paid work, or more paid work. These include for example jobactive, Relocation Assistance to Take Up a Job, Career Transition Assistance and the longstanding New Enterprise Incentive Scheme. 

The various programs help job seekers including those who are parents returning to the workforce, Indigenous people, people with a disability, young or mature-aged people, or those who are about to lose their jobs or who have recently been made redundant. Job seekers share the characteristic of being working age people with capacity to work in the present or the near future. Whatever their exact circumstances they share the need to find and keep paid work or more paid work either as an employee or via their own business. 

Delivery of the programs typically revolves around employment services providers, peak employer groups or contractors engaged for programs which then work with employment services providers. 

The benefits or services delivered generally involve training or mentoring to improve the skills and confidence of job seekers, connecting job seekers with businesses or vice versa, provision of information about job opportunities, assistance with resumes and interview preparation, and / or wage subsidies. 

In common with many but not all Commonwealth programs the legislative authority for these programs is currently contained in the Financial Framework (Supplementary Powers) Regulations 1997 , which are the responsibility of the Minister for Finance.

However, it is more appropriate for legislative authority for Commonwealth expenditure on employment programs to be contained in portfolio legislation administered by the Minister and department responsible for employment policy and programs. This will enhance transparency and accountability for that expenditure. Schedule 2 amends the social security law accordingly. 

Funding for employment programs will not be supported by the standing appropriation in the social security law. Instead, it will need to come from annual appropriations in the usual way. Government decisions in relation to these programs will therefore be subject to Budget processes, and will be published in the Employment Department’s portfolio budget papers. Parliament will continue to be able to scrutinise expenditure on, and the operation of, these employment-related programs through all of the usual mechanisms available to it, including the Senate Estimates process.

The amendments require the Employment Department (currently the Department of Education, Skills and Employment) to publish information about the programs in its annual report. The department will also continue to widely publicise the nature and extent of the assistance available under the programs to job seekers, employers and other stakeholders. 

Schedule 3 amends the targeted compliance framework (TCF) which was inserted into the Administration Act in 2018 and has been effective in its objectives of increasing compliance with requirements while targeting penalties only to those who are deliberately or persistently non-compliant or who deliberately refuse work. 

Currently the TCF provisions mean that there are a number of different types of failures to comply with mutual obligation requirements which if committed must result in a suspension or in some cases cancellation of a person’s payment. 

For example, where a person misses an appointment with their employment services provider, with or without a reasonable excuse, but makes contact with their provider soon after, before being issued with a requirement to reconnect with their provider, the current provisions require their payment to be suspended. However, in practice their payment would be immediately reinstated as they have already reconnected, so the suspension would serve no purpose.  

The amendments more clearly support the current practice of appropriate compliance response to failures by recipients of participation payments to meet requirements, by ensuring that sanctions need not be imposed where doing so would not further the objectives of the TCF. 

Schedule 4 means that the Employment Secretary will be able to ensure that payments and benefits from Commonwealth and State and Territory employment programs, which may otherwise be income for social security law purposes, will not be considered income for those purposes.

Payments and benefits from these programs can therefore be used as intended by job seekers, thereby improving the effectiveness of employment programs while providing certainty to job seekers that their income support payments will not be affected.

Schedule 5 relates to a provision which empowers the Employment Secretary to declare that particular programs of work are approved programs of work for income support payment. Work for the Dole and the National Work Experience Programme are the only current approved programs of work. 

A consequence of a declaration of a program of work for income support payment is that participants in the declared program of work are entitled to an approved program of work supplement as part of their income support payment. The supplement is currently $20.80 per fortnight.

This schedule makes an amendment to provide that a declaration of an approved program of work is a legislative instrument. This will remove uncertainty by clarifying the status of the instrument, bring the provision into line with modern drafting practices, and provide Parliamentary oversight of such declarations by requiring the instrument to be registered on the Federal Register of Legislation and tabled. Job seekers have not been disadvantaged by the non-registration of the instrument as this does not prevent payment of the supplement. 

Schedule 6 replicates in a consolidated fashion four current provisions which have for many years provided that a person will not be treated as a worker for or employee of the Commonwealth for a variety of Commonwealth laws merely because a person has participated in an employment program under a term of the employment pathway plan or as an approved program of work.

Schedule 6 adds that if a person participates in an employment program established by the Commonwealth and which is determined by the Employment Secretary by notifiable instrument to be a program for the purpose of this provision, then this provision will apply in connection with that participation, whether or not the program is an approved program of work or the participation is in accordance with a term of an employment pathway plan. 

This amendment will frequently be of no practical relevance because job seekers usually participate in Commonwealth employment programs in accordance with a term of an employment pathway plan and the relevant Commonwealth laws would usually not apply anyway. However, the amendment will clarify that existing arrangements continue to apply to cases where an activity is not explicitly in an employment pathway plan - for example where a job seeker is undertaking an activity as part of their points requirement in the new Points Based Activation System- or choosing to go beyond their points requirement in a period.

Where the amendment is of any practical relevance, it will have the same effect as the current provisions which are being consolidated in that the same set of Commonwealth laws will not apply in connection with participation in a Commonwealth employment program.    

Also, irrespective of the legal position, the Commonwealth makes extensive efforts to promote the health, safety and interests of job seekers who participate in Commonwealth employment programs. 

The provisions do not apply when the person is engaged in paid work. Further, even in the absence of these provisions it would generally be unlikely that a person engaged in unpaid activities as part of an employment program would be a worker or employee for the purposes of those laws, although that would depend on the circumstances.

Schedule 7 makes clear the current and longstanding practice that job seekers studying as part of their mutual obligation requirements remain job seekers for Youth Allowance purposes and so the income free area provisions which apply to them are those which apply to job seekers and not those which apply to full-time students on Youth Allowance. These amendments do not limit job seekers’ ability to study as part of their requirements or preclude job seekers who wish to access policies designed for students from being able to claim Youth Allowance as a student instead of as a job seeker.

Schedule 8 addresses an inequity and encourages fast connection to employment services. Due to a quirk in current provisions, unless exempt from these requirements under existing exemption arrangements, the start date for job seekers’ income support payments depends on whether they are referred to online employment services or referred to an employment services provider. Job seekers who are referred to online employment services are paid income support starting from an earlier date than job seekers who are referred to an employment services provider, meaning that job seekers using online employment services receive more payment and provider-managed job seekers receive less. This is inequitable.

This measure will align payment commencement arrangements for online-serviced job seekers with provider-managed job seekers from 1 July 2022. Unless exempt from these requirements, job seekers will be paid income support starting either from the date they agree to their employment pathway plan or the date they attend an initial appointment with their provider. As well as addressing an inequity, this will encourage online-serviced job seekers to connect quickly to employment services, maximising their likelihood of finding work.

Only new job seekers in digital employment services in the New Employment Services Model from 1 July 2022 would be affected. This measure will not affect job seekers who are serviced by providers. Job seekers in the Community Development Program will continue to have their payment back-dated to claim after connecting to a provider, consistent with current arrangements for this group.

All existing protections for job seekers would be maintained, which means that job seekers who are unable to agree to their employment pathway plan within a reasonable timeframe for reasons outside their control will not have their payment impacted. This could be the case for example when a job seeker experiences illness, accident, or inability to access IT. Job seekers will also be able to contact the Digital Services Contact Centre if they want or need support.

Some job seekers may also be exempt from the measure, consistent with existing arrangements. This means they will receive their payment immediately after their claim has been processed, and their payment will be back-dated to their date of claim. These exemptions cover, for example, job seekers who are transferring from another payment, have an exemption from mutual obligations, are in Disability Employment Services or are referred for further assessment at claim.

The measure is expected to reduce by two days the average time that job seekers take to agree to an employment pathway plan.

This measure is expected to save $191.6 million over the forward estimates. Savings will be used to offset the New Employment Services Model. This will ensure that employment services are properly resourced to provide appropriately targeted support to job seekers.

Schedule 9 removes spent references to programs and supplements that ceased some years ago. 

Schedule 10 contains minor contingent amendments.  



 

FINANCIAL IMPACT STATEMENT

The measure in Schedule 8, which aligns payment commencement arrangements for online-serviced and provider-serviced job seekers, is expected to save $191.6 million over the forward estimates. Other amendments in the Bill will have no financial impact.

 

CONSULTATION

The following agencies have been consulted in relation to the Bill: the Department of Finance, Office of Parliamentary Counsel, Department of Social Services, Department of Agriculture, Water and the Environment, Services Australia, National Indigenous Australians Agency, Australian Government Solicitor and Attorney-General’s Department

 

Schedule 1 contains amendments which will enable job-ready job seekers to manage their requirements through Digital Services will also allow resources to be redirected away from administration and into proactive support and tailored assistance for the most disadvantaged job seekers - who will be serviced by providers in face-to-face servicing.

 

This reflects a key recommendation of the Employment Services Expert Advisory Panel report, I Want to Work, which was to leverage the benefits of digital servicing for the most job ready to increase investment in those job seekers who are long-term unemployed or at risk of becoming so. Retaining and improving face-to-face servicing, in Enhanced Services, will deliver the personalised support needed to decrease the proportion of the caseload that are long-term unemployed or at risk of becoming long-term unemployed.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021

The Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

Schedule 1 - Streamlined participation requirements

Overview of the Schedule

The schedule has three main components:

·          creating a single set of emp loyment pathway plan requirement provisions, which will allow better use of technology, allowing job seekers more choice about how they enter into an employment pathway plan and meet the requirements of that plan;

·          repealing the redundant and outdated “activity test” provisions so that it is clear that job seekers receiving participation payments may meet their requirements through complying with the terms of their employment pathway plan; and

·          creating a single set of criteria for exemptions from mutual obligation requirements, which better supports existing policy and practice and helps job seekers understand their rights.

 

These changes are necessary as much of social security law was written at a time when mutual obligation requirements and employment services were very different to how they are now. In addition, due to outdated historical reasons and iterative amendments over the years the social security law contains many provisions which are unnecessarily complicated, ambiguous or confusing. This is compounded by the fact that many provisions are effectively duplicated for each of the four participation payments - jobseeker payment, youth allowance (for job seekers), parenting payment (for those with requirements) and special benefit for nominated visa holders.

 

Human Rights Implications

Schedule 1 engages the following human rights:

·          the right to social security - Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

·          the right to an adequate standard of living - Article 11 of ICESCR

·          the right to work - Articles 2 and 6 of ICESCR

 

Rights to social security, to an adequate standard of living and to work

Article 9 of the ICESCR recognises the right of everyone to social security. The right to social security requires States to establish a social security system and, to the maximum of their available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

Article 11 of the ICESCR recognises the right of everyone to an adequate standard of living including adequate food, water and housing, and to the continuous improvement of living conditions.

Article 2 of ICESCR requires that each State Party undertakes to take steps to the maximum of its available resources, especially economic and technical, to realise the rights recognised in the Covenant, particularly through legislative measures.

Article 6 of ICESCR recognises the right of every person to the opportunity to gain a living by work which they freely choose or accept.

The amendments in schedule 1 promote the right to social security and through that the right to an adequate standard of living in a number of ways, by:

·          allowing job seekers more choice and control over how they manage their requirements

·          providing more clarity on how provisions affecting job seekers’ payments operate, allowing greater understanding and transparency of job seekers’ rights and responsibilities

·          better supporting current practice regarding exemptions from mutual obligation requirements, particularly exemptions for longer term serious illnesses.

 

More job seeker choice

The amendments in Schedule 1 of the Bill would create a new Division 2A of the Administration Act which will better allow the use of technology in the development of employment pathway plans.

This will allow job seekers to access more flexibility in how they enter into an employment pathway plan, and also allow greater control over how they meet their requirements. This will be achieved by the amendments allowing job seekers to enter into employment pathway plans that have been presented to them through technological processes, if they choose. This will better enable job seekers to enter into employment pathway plans and manage their requirements while participating in online and digital employment services.

Delivery of employment services are increasingly being supported by technology. From July 2018 the Government began trialling online employment services, which allowed job-ready job seekers to enter into an employment pathway plan and report job search activity online. In response to COVID-19, online employment services were significantly expanded.

In addition, the Government has announced that a New Employment Services Model (new model) will be commencing in July 2022, building on evidence from the New Employment Services Trial (NEST) and Online Employment Services Trial. As part of the new model, the most job-ready job seekers will self-manage their job search using digital services, unless they choose to be referred to a provider.

The new model will make better use of digital technology to support job seekers to find work. Policy settings of the new model align with recommendations made by the Employment Services Expert Advisory Panel’s report, I Want to Work: Employment Services 2020 . Stakeholders have acknowledged and supported the proposed model due to its alignment with the advice of the Panel. Testing of the new model through the NEST has also enabled a collaborative approach to testing, learning and refinement.

A key feature of the new model will be job-ready job seekers being able to self-manage their requirements through Digital Services and having access to the Points Based Activation System (PBAS), which the amendments in Schedule 1 will support. PBAS is a new approach to activation, recommended by the Employment Services Expert Advisory Panel, to improve the way job seekers manage and meet their mutual obligation requirements - for job seekers participating in online services and job seekers receiving the services of a provider. While job search remains a core element, job seekers have greater agency to determine and access the activities they undertake on their pathway to employment and are rewarded for their active effort and engagement.

Job seekers with mutual obligation requirements will need to meet a certain number of points per reporting period as a requirement in their employment pathway plan. They will be able to do this by undertaking tasks and activities that support their connection to the labour market, and will meet their points target through undertaking approved tasks such as job search, attending interviews, study and training, voluntary work or other activities. PBAS is currently being trialled in the NEST and has been strongly supported in user-testing with job seekers and providers.

Job seekers who are assessed as job-ready and able to use and access Digital Services will be able to choose to manage their requirements online, without being serviced by a provider. Job seekers will still need to meet requirements commensurate with their capacity, similar to those in provider servicing, but how they report and manage those requirements will change.

Safeguards built into the Digital Employment Services Platform (digital platform) will ensure people do not get left behind, including a Digital Services Contact Centre in the department to provide advice and extra support via phone or email. In addition, existing safeguards built into compliance arrangements will ensure that before anybody faces any financial penalty for not meeting their requirements they will have the appropriateness of their requirements for their individual circumstances assessed twice by human delegates (Capability Interview and Capability Assessment).

Further, if job seekers enter a plan online but later consider that their requirements are not appropriate for their circumstances, they will be able to receive assistance to alter their plan, for instance by contacting the Digital Services Contact Centre in the department. This will allow job seekers to adjust their requirements, if appropriate, or report a change in circumstance. This will be able to occur at any time - there will be no rules or time limits on when an employment pathway plan can be varied. PBAS will also allow job seekers to easily and quickly adjust the specific method through which they meet their requirements - for instance one period a job seeker may choose to meet their requirements solely through job search, another period they may choose to meet requirements through a mixture of activity participation and job search.

Departmental evidence shows that digital servicing is effective. As at 31 January 2021, over 400,000 referrals to Online Employment Services since 20 March 2020 have exited and not returned to employment services. In addition, departmental post-program monitoring surveys have shown that:

·          73 per cent of participants were employed three months after exiting Online Employment Services;

·          80 per cent of participants were in work and/or study three months after exiting Online Employment Services;

·          for participants who exited the NEST Digital Services, 86.4 per cent were employed and 89.3 per cent had a positive outcome three months later.

 

These results demonstrate job-ready job seekers are willing and able to self-manage their search for employment and can effectively achieve their pathway back to employment using online services. Supporting effective evidence-based mutual obligation requirements, which maximise the likelihood that job seekers will find work as quickly as they are able, therefore supports and promotes the right to work.

As mentioned above, the amendments in Schedule 1 of the Bill will better allow the use of technology in the development of employment pathway plans, allowing job seekers to access more flexibility and have greater control over how they meet their requirements. Importantly, these changes will not enable computers to make decisions about the content of employment pathway plans - and nor will computers be delivering employment services to job seekers.

Instead, all job seekers will be able to enter an employment pathway plan with a human delegate if they choose, for example by contacting the Digital Services Contact Centre. Indeed, the amendments in the Bill require that job seekers be presented with options available to them on how to enter their employment pathway plan. For those job seekers who opt to self-manage - to decide for themselves what requirements are most beneficial for them (within guidelines set by the department, not a computer) - the new arrangements will enable them to do so.

Those who are assessed as suitable to self-manage and later change their mind will be able to enter a plan with a human delegate - the Bill makes clear that entering a plan under the new arrangements does not prevent a person from having a plan approved by a human delegate.

Human oversight and assistance also remain an integral part of all employment services and will continue to do so. At any time, job seekers can contact a person in the Digital Services Contact Centre who is trained to answer their questions and assist them with any difficulties. The amendments require that all job seekers will have the option of entering an employment pathway plan in the traditional method, i.e. with a human delegate. Job seekers are also able to move to a provider of their choice at any time if they feel the online service is not meeting their needs.

Less compliance action

Job seekers who do not meet their mutual obligation requirements may face pause, reduction or cancellation of their participation payment under the compliance frameworks (in Divisions 3A and 3AA of Part 3 of the Administration Act). These amendments, which provide more choice and control for how job seekers meet and manage their requirements, will reduce the likelihood of compliance action because job seekers will be more likely to comply with requirements they have selected for themselves.

Greater support for vulnerable job seekers

In addition to the considerable benefits that the digital platform will generate for users, moving functions into digital channels will allow resources to be redirected away from administration and into proactive support and tailored assistance for the most disadvantaged job seekers who will be serviced by providers in face to face servicing. A key recommendation of the Employment Services Expert Advisory Panel was to leverage the benefits of digital servicing for the most job ready to increase investment in those job seekers who are long-term unemployed or at risk of becoming so. Retaining and improving face-to-face servicing, in Enhanced Services, will deliver the personalised support needed to decrease the proportion of the caseload that are long-term unemployed or at risk of becoming long-term unemployed.

Long-term unemployment has been elevated since the Global Financial Crisis and will likely continue to be a concern for vulnerable cohorts in a more competitive, post-COVID labour market. An increasing level of long-term unemployment can impede the economic recovery through a loss in human capital and flow on costs to income support, with the potential for greater intergenerational welfare dependency in the future. To reduce the rate of long-term unemployment in employment services, increased investment is needed.

Under the new model, reduced provider caseloads and new provider payments to increase investment in job seekers will support more effective individual case management for the hardest to place job seekers. Providers will have demonstrated expertise in working with job seekers with complex needs. Despite the COVID-19 pandemic, Enhanced Services providers in the NEST are assisting long-term unemployed job seekers into sustainable employment. As at 31 January 2021, 7587 long-term unemployed Enhanced Services job seekers in the NEST were placed into a job. Of these, 43 per cent remained in this job for at least four weeks and 28 per cent remained in this job for at least 12 weeks.

If a job seeker is not satisfied with the choices about requirements which are presented to them by the online system they will be able to discuss their plan with a human delegate. If they later become dissatisfied with their online plan they will be able to vary it themselves online, or vary it with the assistance of a human delegate.

If the job seeker remains dissatisfied with their online plan they will be able to have it reviewed, initially by the Digital Services Contact Centre, then if necessary by an authorised review officer, the Administrative Appeals Tribunal or a court.

As for offline plans, the Bill requires that when conducting a review about the content of a plan the decision-maker must consider whether the online plan is suitable for the job seeker having regard to their circumstances. 

Accordingly, these provisions do not limit job seekers’ rights to social security or the right to an adequate standard of living, rather they enhance them by providing job seekers greater choice and flexibility in how they meet and manage their requirements, by reducing compliance action and by providing more support for vulnerable job seekers.

Making the law shorter, simpler and clearer

Many provisions in social security law regarding mutual obligation requirements are extremely complicated, and have been iteratively changed over a number of years further increasing their complexity and the difficulty in understanding them. In addition, the four participation payments each have largely duplicative provisions regarding employment pathway plans and the requirements which may be contained in them, and circumstances in which a person does not need to meet requirements.

Unnecessary complexity and volume of legislative provisions impedes job seekers from knowing their rights and causes inconvenience and inefficiency to stakeholders such as the general public, courts, the Administrative Appeals Tribunal, the Commonwealth Ombudsman, employment services providers, and legal and other practitioners. This has been recognised by courts, for example, in the 2004 Federal Court case of Secretary of the Department of Family and Community Services v Geeves [2004] 136 FCR 134 Weinberg J stated: “Regrettably, as each year goes by, the Social Security Act becomes still more complex, and less accessible to those who most need to understand it”.

The amendments made by Schedule 1 will reduce the size and repetitive nature of provisions in social security law which relate to mutual obligation requirements and the circumstances in which job seekers will be exempt from them. This will enable job seekers to better understand their obligations and therefore comply with them. It will also help them to understand their rights, promoting the right to social security and through that the right to an adequate standard of living.

The changes include discarding the unnecessary phrase “activity test”, which causes excessive complication in current provisions, and combining the requirement to seek and accept paid work, except unsuitable paid work with the provisions dealing with employment pathway plan requirements. This is consistent with the longstanding practice that the requirement to seek and accept paid work (except unsuitable work) is included in employment pathway plans.

There are currently four sets of employment pathway plan provisions - one for each of the four participation payments which job seekers may receive. These are parenting payment, youth allowance other than for full-time students or apprentices, jobseeker payment and, for nominated visa holders, special benefit. These provisions will be consolidated into a single set of provisions relating to employment pathway plan requirements.

The four sets of provisions relating to when paid work is unsuitable for a person will also be consolidated into a single set of provisions about unsuitable work in the employment pathway plan provisions. The consolidated provisions are nearly identical to the current provisions.

One difference is that the new provisions make clear that work is not unsuitable for a person merely because they consider that they are too highly qualified to do it or that they are entitled to a higher rate of pay. This is not a change to the law as it reflects the manner in which courts and tribunals have interpreted the provisions but make the obligations of job seekers clearer to them. 

A more rational legislative approach to exemptions from mutual obligation which better supports current practice

The Bill will create a new single set of exemption criteria for all four participation payments (in subdivision C of the new Division 2A). As well as reducing duplication and improving clarity, this will better support existing policy and practice. Currently, some exemption criteria whereby job seekers may be exempted from mutual obligation requirements are not as clearly supported by current legislation as they could be.

The general exemption provisions in new section 40L provide that the Employment Secretary may determine that a person is not required to satisfy employment pathway plan requirements if satisfied that circumstances exist that are beyond the person’s control and that in those circumstances it would be unreasonable to expect the person to comply with those requirements. The intention of this subitem is to largely sum up the underlying rationale for exempting a person from their requirements, which is that whatever their exact circumstances may be, if the circumstances are beyond their control and it would be unreasonable to expect them to comply in those circumstances, then they should not be expected to comply.

New section 40L provides safeguards for job seekers to a greater extent than many of the current specific exemption provisions because it may apply when many of those specific provisions would clearly not apply. For example, it may apply whether or not the circumstances in question are “special”. A range of commonplace circumstances of life 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 the circumstances be special. It thus provides greater protection to job seekers than current sections 502F(1A), 542H(1AA), 603A(1A) and 731E(1A) which provide that a person will be exempt from participation requirements (in the case of parenting payment) or activity test requirements due to special circumstances beyond their control if in those circumstances it would be unreasonable to expect them to comply with their requirements.

In addition to the proliferation of exemption provisions in the primary social security law, there are provisions in legislative instruments. The Social Security (Special Circumstances Exemption to Youth Allowance Activity Test Guidelines) Instrument 2019, for example, sets out guidelines for the exercise of the Secretary’s power to determine whether special circumstances warranting an activity test exemption exist. There is no equivalent instrument for the other participation payments as there is no equivalent instrument making power.

There is no real reason why there should be such an instrument in relation to youth allowance but not the other participation payments. There is also no strong reason why there should be such an instrument in relation to any of the payments given that the instrument lists circumstances which would likely be considered special circumstances anyway, such as death of a family member, domestic violence, an earthquake or other disaster, or a major personal crisis. The instrument does not stipulate that those circumstances must result in an exemption, only that they may result in an exemption, which would be the case even if the instrument did not exist.  

Other current provisions also do not apply unless the circumstances are special. For example, section 502C in relation to parenting payment provides for the possibility of an exemption if there are special circumstances relating to the person’s family that make an exemption appropriate. Similarly, in relation to the other participation payments, sections 542F and 602B and 731DA allow for the possibility of an exemption where a person is the principal carer of one or more children and there are special circumstances relating to the person’s family.

Sections 502C, 542F, 602B, 731DA overlap in some respects with other provisions which also relate to exemptions for caring-related reasons. These include sections 502D, 542FA, 602C and 731DB which are each over three pages in length in more or less identical terms, but which are duplicated four times. These latter four provisions relate to an array of circumstances such as where a person is a carer for a disabled child, a foster carer, a home or distance educator, a carer for numerous children, or a carer of a child of whom they are not the parent.

These provisions illustrate many of the problems with the current array of provisions relating to exemptions. These include: 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 (and which in practice do); 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.

Section 40L provides a more rational approach to exemptions because it is a short provision, applicable to all four payments without duplication, in relation to all mutual obligation requirements, and because it deals with the same subject matter in the same way while being flexible enough to properly take account of different circumstances according to the underlying principle that where circumstances exist that make it unreasonable to expect to expect a person to comply with requirements they should not be expected to do so. 

Rather than having separate and different provisions for activity test exemptions compared with employment pathway plan exemptions, the consolidated exemption provisions will treat those requirements in the same way, reflecting that if a person has an exemption from the requirement to look for work it is reasonable for them to also be exempt from other requirements such as to undertake training or participate in an employment program.

This is the way the provisions are administered in practice. To make clear this intention, in addition to the insertion of new consolidated provisions, current section 603D which specifically permits some job seekers who are exempt from the requirement to look for work on medical grounds to be required to undertake other activities, disused in practice, is being repealed.

This is not a case of consolidation and simplification at all costs. Even though section 40L would adequately safeguard job seekers on its own, it will not be the only provision providing scope for exemptions. To provide greater reassurance to job seekers who are genuinely unable to comply with their usual mutual obligation requirements, a number of the specific exemptions have been retained, including, exemptions related to higher payment rates. They have been retained in consolidated form and not duplicated four times - see new sections 40M, 40N, 40P, 40Q, 40R and 40S. In the consolidation of those provisions the degree of protection for job seekers has been fully retained.

A subitem in the new exemption provision indicates that the Employment Secretary may also determine that a person is not required to satisfy employment pathway plan requirements if satisfied in all the circumstances that the person should not be required to satisfy the employment pathway plan requirements.

This subitem is consistent with the underlying rationale for exemptions from requirements noted above. It recognises that sometimes circumstances may be within a person’s control, but it will still be appropriate to exempt them from employment pathway plan requirements. For example, a decision to end a relationship may be within a person’s control but their circumstances may warrant an exemption.

New section 40T is a new exemption provision for which there is no current equivalent and relates to exceptional circumstances in which classes of people will not be required to satisfy the employment pathway plan requirements if a determination to that effect is made. This provision will enable more agile, flexible and tailored responses to exceptional circumstances that would make it unnecessary or inappropriate to require a class or classes of people affected by those circumstances to satisfy the employment pathway plan requirements.    

No change in exemption policy or practice

It is envisaged that no change in policy or practice regarding granting of exemptions will result from these amendments. As currently, exemptions that are granted are envisaged to be much broader than those explicitly included in legislation.

For example, current guidelines regarding circumstances in which exemptions should be granted include the below, which are not currently explicitly included in legislation, but would generally fall under the category of a ‘special circumstances’ exemption where the job seeker:

·          has major disruption to their home, such as damage to the home/contents caused by storm, flood, fire, earthquake, accident, explosion or electrical fault or serious burglary or vandalism;

·          has a major personal crisis, such as becoming homeless, a death of a member of the person's immediate family, the breakdown of marriage or equivalent relationship, Indigenous sorry business;

·          is affected by declared natural disaster, e.g. bushfire, flooding or cyclone

·          has temporary caring responsibilities for an adult or child

·          is receiving dad and partner leave

·          is undertaking jury duty

·          is a newly protected witness

·          is a newly arrived refugee

·          is volunteering during a state or national emergency

·          is undertaking Indigenous cultural business

 

The new exemption provisions also better support existing policy around the timing of the granting of exemptions. For example, currently exemptions due to temporary incapacity are legislatively limited to 13 weeks. But, in practice, a job seeker who is seriously ill and undergoing treatment may be exempted without additional medical certificates for up to 52 weeks from the date that the first exemption was granted. Current guidelines specify that these exemptions may be granted for job seekers with the following serious illnesses:

·          cancer/leukaemia

·          severe stroke

·          acquired brain injuries

·          serious burns

·          serious physical injuries requiring long recovery periods

·          severe mental health conditions for which the person is receiving treatment in an institutional setting.

 

The Bill therefore promotes the ability of these job seekers to be exempted from requirements without needing to re-apply every 13 weeks - promoting the right to social security and through that the right to an adequate standard of living.

The amendments therefore will not limit the ability for job seekers to access exemptions, and will better legislatively support current policies and practice regarding exemptions. These provisions therefore support and promote the right to social security and through that the right to an adequate standard of living.

 

 

Conclusion

Schedule 1 is consistent with human rights and promotes the right to social security, the right to an adequate standard of living and the right to work by providing job seekers greater choice and flexibility in how they meet and manage their requirements and reducing compliance action and by providing more support for vulnerable job seekers. The schedule also makes the social security law shorter, simpler, and clearer which will help job seekers under their obligations and therefore be more likely to comply with them and find and keep paid work and less likely to be subject to compliance action. The schedule also introduces a more rational legislative approach to exemptions from mutual obligation which better supports current practice and access to exemptions.

 

Schedule 2 - Arrangements and grants relating to paid work activities

Overview of the Schedule

The Australian Government delivers numerous employment-related programs designed to assist people to find and keep paid work. Currently the legislative authority for expenditure on these programs is provided by a general expenditure authority under the Financial Framework (Supplementary Powers) Act 1997 , in the Financial Framework (Supplementary Powers) Regulations 1997 (FFSP Regulations). This Act and the FFSP Regulations are the responsibility of the Minister for Finance.

It is more appropriate for authority for this expenditure to be in social security legislation, as this legislation is the responsibility of the Minister and department responsible for employment policy and programs

Schedule 2 inserts a new Chapter 2D into the Social Security Act 1991 (the SS Act) that will provide authority for the Employment Secretary to enter into, vary or administer arrangements for the making of payments, or make grants of financial assistance for the purposes of employment-related programs set out in the new subsection 1062A(1). The Schedule will also set out the Constitutional basis for payments and grants under arrangements entered to by the Secretary and provide for the inclusion of information about the number of arrangements and grants made, and the total amounts paid under those arrangements, in the Employment Department’s annual report.

Expenditure on employment-related programs will remain subject to the usual processes and requirements for the establishment and oversight of such programs, for example, procurement, grants and appropriations. Government decisions will be subject to Budget processes and will be published in the Employment Department’s portfolio budget papers. Parliament will continue to be able to scrutinise expenditure on, and the operation of, these employment-related programs through all of the usual mechanisms available to it.

 

 

Human Rights Implications

This Schedule engages the following human rights:

·          the right to social security - Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

·          the right to an adequate standard of living - Article 11 of ICESCR;

·          the right to work - Articles 2 and 6 of ICESCR;

·          the right to education - 13 of ICESCR.

 

Government employment programs provide a wide range of assistance to job seekers and workers, including helping unemployed people find jobs and targeted assistance for vulnerable and disadvantaged job seekers and workers, or those in particular locations or industries.

The various programs help job seekers including those who are parents returning to the workforce, Indigenous people, people with a disability, young or mature-aged people, or those who are about to lose their jobs or who have recently been made redundant.

These cohorts share the characteristic of being working age people with capacity to work in the present or the near future, and share the need to find and keep paid work or more paid work either as an employee or via their own business.

Delivery of the programs typically revolves around employment services providers, peak employer groups or contractors engaged for programs which then work with employment services providers.

The benefits or services delivered generally involve training or mentoring to improve the skills and confidence of job seekers, connecting job seekers with businesses or vice versa, provision of information about job opportunities, assistance with resumes and interview preparation, and / or wage subsidies.

This Schedule places authority and accountability for expenditure on employment programs with the Minister and department responsible for administering them, while maintaining existing processes and requirements for establishment and oversight. This ensures employment programs continue to be adequately supported with appropriate Parliamentary oversight, promoting the right to social security law, and through that the right to an adequate standard of living, as well as the right to work and where relevant the right to education.

Also, the technical and administrative processes which are necessary to put FFSP Regulation items in place may cause delay in the implementation of employment programs. Schedule 2 will prevent delay and therefore promote the above human rights because job seekers will not have to wait for assistance while regulation items are made. 

 

 

Conclusion

This Schedule is consistent with human rights and promotes the right to social security, the right to an adequate standard of living and the right to work.

 

Schedule 3 - Compliance with participation payment obligations

Overview of the Schedule

Schedule 3 amends the targeted compliance framework (TCF) set out in Division 3AA of Part 3 of the Administration Act to enable the Secretary not to impose sanctions such as suspending, reducing or cancelling a person’s participation payment in response to a failure to meet requirements, where it is not appropriate or consistent with policy to do so.

The intent of the TCF is to encourage job seekers to comply with their mutual obligation requirements and, where they have missed a requirement, to re-engage with their requirements.

The TCF was introduced in 2018 and has been effective in its objectives of increasing compliance with requirements while targeting penalties only to those who are deliberately or persistently non-compliant or who deliberately refuse work. In the first year of operation the TCF reduced penalties by 90 per cent compared to the previous year, and increased compliance with requirements.

However, since introduction, further improvements have been made. From September 2020, the Government changed TCF administrative arrangements so that suspensions could be ended when a person satisfies their provider that they had a valid reason for not meeting a requirement. Previously, job seekers’ payment remained suspended until they complied with whatever the requirement they missed was - including if the circumstance that meant they were unable to meet their requirement was ongoing. In addition, from 7 December 2020, the Government introduced ‘resolution time’ which allows job seekers two days to re-engage with their requirements before their payments are suspended.

While these arrangements are supported by legislation, the provisions enabling the TCF do not currently reflect this policy intent as clearly as they could. For example, currently, when a person commits a mutual obligation failure, subsection 42AF(1) requires the Secretary to suspend a person’s participation payment for a particular period - typically from the time the person committed the failure until they reconnect with their employment services provider (see section 42AL). The various types of mutual obligation failures are listed in section 42AC of the Administration Act and include failures to comply with an employment pathway plan, inadequate job search efforts, failure to attend a job interview and failure to act on a job opportunity when requested to do so by an employment services provider.

Once the person reconnects with their provider, they are usually back-paid for the period of the suspension. However, the Secretary is obliged to suspend a person’s participation payment even if the person has a valid reason for the mutual obligation failure, and even if the person has already reconnected with their provider when the mutual obligation failure comes to the Secretary’s attention. In these cases, the Secretary suspends the person’s participation payment, but the period of suspension immediately ends, with no practical consequence observed by the job seeker.

As the concepts of ‘demerits’ under the TCF are administrative and not legislated, in circumstances that the secretary does not suspend a job seeker’s payment because they have already re-engaged with their requirements (for example), this will not preclude application of a demerit.

Similarly, when a person commits a work refusal failure, defined in section 42AD of the Administration Act as a failure to accept an offer of suitable employment, the Secretary is obliged under section 42AG to either suspend the person’s participation payment for the period set out in section 42AL (if the person has a reasonable excuse for the failure) or cancel the person’s participation payment (if the person has no reasonable excuse).

In the former case, the Secretary is still obliged to suspend the person’s participation payment even if they have reconnected with their employment services provider. Again, in those cases, there is no practical consequence to the suspension, as the period of suspension ends immediately. And when a person commits an unemployment failure (as defined in section 42AE of the Administration Act), the Secretary is obliged under section 42AH to cancel the person’s participation payment.

Currently, the requirement to cancel payment if a person does not have a reasonable excuse for refusing work or for leaving work voluntarily depends purely on the fact of whether a person has refused work or become voluntarily unemployed. However, in practice, in some cases sufficient evidence is not available of a person’s work refusal or voluntary unemployment, or there is an administrative failure which means that the failure is not correctly reported. In these cases, reports of failures are rejected by Services Australia - even though it may have actually been the case that a person refused work or became voluntarily unemployed.

This Schedule gives the Secretary greater flexibility concerning compliance action, by providing that the Secretary may , instead of must take compliance action following a failure. This means the Employment Secretary will have greater discretion concerning when compliance action should be taken in response to failure in order to better support policy.

With regard to suspensions, in practice, it is not expected that from job seekers’ perspective there will be any change from existing arrangements, since in these instances the job seeker’s suspension currently ends the moment it begins. Similarly, for failures relating to refusing work or becoming voluntarily unemployed, consistent with current practice where there is evidence that a person has become voluntarily unemployed or refused suitable work without a reasonable excuse, compliance action will still be taken.

However, additional flexibility provided by these schedules will mean that legislative arrangements more clearly reflect policy intent and practice.

 

 

Human Rights Implications

Schedule 3 engages the following human rights:

·          the right to social security - Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

·          the right to an adequate standard of living - Article 11 of ICESCR

·          the right to work - Articles 2 and 6 of ICESCR.

 

The rights to social security, to an adequate standard of living and to work

Article 9 of the ICESCR recognises the right of every person to social security. The right to social security requires State Parties to establish a social security system and, within their maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

Article 11 of the ICESCR recognises the right of every person to an adequate standard of living including adequate food, water and housing, and to the continuous improvement of living conditions.

Providing additional flexibility for the Secretary not to suspend, reduce or cancel job seekers’ participation payment following a failure better supports the ability for these consequences to only apply to those who are disengaging from their requirements and need an incentive to re-engage. This promotes the right to social security and through that the right to an adequate standard of living.

Conclusion

Schedule 3 is consistent with human rights and promotes the right to social security and the right to an adequate standard of living.

 

Schedule 4 - Amounts not counted as income

Overview of the Schedule

This Schedule amends the Social Security Act to allow payments and benefits from Commonwealth and State and Territory employment and similar programs to not be considered income for social security law purposes. Payments under some employment programs are currently covered under subsection 8(8) of the Social Security Act , which provides that certain payments or benefits are not income for the purposes of the SS Act, and subsection 8(11), which enables the Secretary to determine by legislative instrument amounts that are exempt lumps sums. The changes in this Schedule creates an instrument making power to clarify that payments and benefits from other Commonwealth and State and Territory employment programs are not be considered income for the purposes of the Social Security Act , ensuring these amounts will not affect income support payments for job seeker.

Human Rights Implications

These schedules engages the following human rights:

·          the right to social security - Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

·          the right to an adequate standard of living - Article 11 of ICESCR

 

This Schedule ensures that payments and benefits from Commonwealth and State and Territory employment-related programs are not considered income for social security law purposes. This means that payments and benefits from these programs can be used as intended by job seekers, while providing certainty that their income support payments will not be affected. This improves the effectiveness of employment-related programs and promotes the right to social security law and through that the right to an adequate standard of living.

Conclusion

This Schedule is consistent with human rights and promotes the right to social security and the right to an adequate standard of living.

 

Schedule 5 - Approved programs of work for income support payment

Overview of the Schedule

Schedule 5 amends the Social Security Act to clarify that the Secretary’s declaration of an approved program of work for income support payment is by legislative instrument. Job seekers who are participating in an approved program of work, such as Work for the Dole and the National Work Experience Programme, are eligible for an approved program of work supplement of $20.80 per fortnight in addition to their regular income support payment. Job seekers in certain circumstances (such as receiving a part rate of income support) also cannot be compelled to participate in an approved program of work.

This amendment brings the provision in line with modern drafting practices and provides Parliamentary oversight of such declarations by requiring the instrument to be registered on the Federal Register of Legislation, and tabled. The non-registration of the instrument to date has not disadvantaged job seekers because it did not prevent the payment of the supplement, however registration will provide greater clarity and certainty for job seekers.

 

Human Rights Implications

This Schedule engages the following human rights:

·          the right to social security - Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

·          the right to an adequate standard of living - Article 11 of ICESCR

 

This Schedule improves parliamentary oversight of existing arrangements and the clarity and accessibility of social security law, promoting the right to social security law and through that the right to an adequate standard of living.

Conclusion

This Schedule is consistent with human rights and promotes the right to social security and the right to an adequate standard of living.

 

Schedule 6 - Activities that do not give rise to employment under certain industrial relations legislation

Overview of the Schedule

Provisions currently exist in social security law that set out that a person will not be treated as an employee of, or worker for, the Commonwealth for a variety of Commonwealth laws, because they have been required to participate in an approved program of work (specified in the instrument referred to in schedule 5) or other activity as part of their employment pathway plan. Consistent with the consolidation of participation requirements made by Schedule 1 to this Bill, Schedule 6 will consolidate the relevant existing provisions under a new section 40 of the Social Security Act.

Schedule 6 also specifies that a person participating in an employment program (determined by the instrument referred to in Schedule 4) is not an employee of, or worker for, the Commonwealth for the purposes of the W ork Health and Safety Act 2011 , the Safety, Rehabilitation and Compensation Act 1988 , the Superannuation Guarantee (Administration) Act 1992 or the Fair Work Act 2009. This provides further clarity for job seekers participating in these programs but does not remove any protections, as participation in these programs would be included in a job seeker’s employment pathway plan currently anyway.

As with existing provisions, the changes do not remove any protections for job seekers participating in employment programs. For example, job seekers are covered by accident and indemnity insurance equivalent to workers’ compensation and program providers are required to provide participants with a safe workplace.

 

Human Rights Implications

This Schedule engages the following human rights:

·          the right to social security - Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

·          the right to an adequate standard of living - Article 11 of ICESCR

 

This Schedule improves the clarity and accessibility of social security law, promoting the right to social security law and through that the right to an adequate standard of living.

Conclusion

This Schedule is consistent with human rights and promotes the right to social security and the right to an adequate standard of living.

 

Schedule 7 - Youth allowance ordinary income free area

Overview of the schedule

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. This means that legislative changes aimed at enacting policies specifically designed for job seekers or students must be enacted by defining which cohorts will be addressed. Historically in social security law, this has been done by referring to ‘full-time students’ or ‘new apprentices’, and referring to job seekers as those not undertaking full-time study or new apprentices.

One such policy is the ordinary income free area for youth allowance. A different ordinary income free area applies to youth allowance recipients “undertaking full-time study”.

However, those receiving youth allowance as job seekers may also study short courses as part of their requirements, recognising that addressing a skills gap or quickly upskilling may improve job seekers’ employment prospects and aid them in securing sustainable work. 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.

These provisions therefore make clear in legislation and reflect existing long-standing policy that those receiving youth allowance as a job seeker continue to be treated as such when undertaking study as part of their requirements. For clarity, these amendments do not limit support to those wishing to study. Nothing in these amendments would preclude job seekers who wish to access policies designed for students from being able to claim youth allowance as a student instead of as a job seeker. For example, if a youth allowance recipient was looking for work and found or was referred to a course that they considered improved their employment prospects, they could choose to enrol in it as a full-time time student. They could then contact Centrelink and ask to be transferred to youth allowance (student) and therefore have access to the different income free area that applies for that payment.

The rights to social security and to an adequate standard of living



Article 9 of the ICESCR recognises the right of every person to social security. The right to social security requires State Parties to establish a social security system and, within their maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

These amendments improve clarity of social security law by more clearly reflecting current policy and practice, without limiting access to social security. The schedule therefore promotes the right to social security.

Conclusion

Schedule 7 is consistent with human rights and promotes the right to social security.

 

Schedule 8 - Start day for jobseeker payment and youth allowance

Overview of the Schedule

Schedule 8 of the Bill amends the Social Security Act, the Administration Act and the Farm Household Support Act to align the start day provisions for certain job seekers claiming jobseeker payment or youth allowance.

Currently, clause 4A of Schedule 2 of the Administration Act sets out that payment of jobseeker payment or youth allowance for these job-ready job seekers commences from either the day the day they attend an interview with their employment services provider (if that occurs within 2 business days of them being given notice of the requirement to attend) or from the day that they are given notice of the requirement to attend.

Since COVID-19, use of online employment services has greatly expanded. As online-serviced job seekers do not have a requirement to attend an interview with an employment services provider, clause 4A does not apply to these job seekers. These job seekers are instead paid from their date of claim once they have agreed to their employment pathway plan online. This creates a discrepancy between job seekers, as their start day depends on whether they are referred to online employment services online or referred to a provider.

This Schedule inserts a new clause 4B of Schedule 2 of the Administration Act that will provide that payment will not commence for job seekers referred to online employment services until they have entered into an employment pathway plan online, aligning start day provisions with those who are referred to a provider and subject to clause 4A. Online-serviced job seekers are able to enter into an employment pathway plan online when they lodge their claim for payment and the new subclause 4B(3) will ensure that a person is not disadvantaged by being unable to complete an online pathway plan through no fault of their own.

Job seekers affected by the amendments

This Schedule would affect job seekers claiming jobseeker payment or youth allowance, who are considered job-ready, and who are referred to online employment services in the New Employment Services Model from 1 July 2022. This Schedule would not affect job seekers who are referred to a provider. Consistent with existing arrangements, this Schedule would also not affect job seekers who are exempt from this requirement, for example, job seekers who are transferring from another payment, have an exemption from mutual obligations, are in Disability Employment Services or are referred for further assessment at claim.

Human Rights Implications

Schedule 8 engages the following human rights:

·          the right to social security - Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

·          the right to an adequate standard of living - Article 11 of ICESCR

·          the right to work - Articles 2 and 6 of ICESCR.

 

Rights to social security, to an adequate standard of living and to work

Article 9 of the ICESCR recognises the right of everyone to social security. The right to social security requires States to establish a social security system and, to the maximum of their available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

Article 11 of the ICESCR recognises the right of everyone to an adequate standard of living including adequate food, water and housing, and to the continuous improvement of living conditions.

Article 2 of ICESCR requires that each State Party undertakes to take steps to the maximum of its available resources, especially economic and technical, to realise the rights recognised in the Covenant, particularly through legislative measures. Article 6 of ICESCR recognises the right of every person to the opportunity to gain a living by work which they freely choose or accept.

Article 4 of the ICESCR provides that countries may only subject economic, social and cultural rights to such limitations ‘as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’. The Committee on Economic, Social and Cultural Rights has stated that such limitations must be proportionate and the least restrictive alternative where several types of limitations are available, and even where such limitations are permitted, they should be of limited duration and subject to review.

The intention of the amendments, consistent with current arrangements, is to encourage job-ready job seekers to connect more quickly with employment services and maximise their likelihood of finding work. The longer a job seeker takes to connect with employment services, the later their income support start date. It is appropriate that job seekers who are job-ready (and are not exempt) and who have claimed income support should connect quickly with the employment services that are available to help them find a job. Ensuring that job seekers are not paid until they connect with employment services reinforces the original policy intent of these provisions as introduced in 2018. When this policy was introduced in 2018 for provider-managed job seekers, it reduced by two days the average time taken for job seekers to connect to employment services. It is expected the effect of these amendments will encourage a similar reduction in the time taken to connect to employment services.

The right to social security is not impermissibly limited by requiring job seekers to connect with employment services before their income support becomes payable. This is already a requirement for job seekers who are referred to a provider. Those who are referred to online employment services are more likely to be job-ready. The Schedule encourages a job seeker who has no significant barriers to obtaining employment to connect quickly with employment services and begin to undertake activities that will assist them to obtain employment as soon as they can.

The Schedule does not limit a job seeker’s right to social security if they connect with employment services as required, because income support would be payable to them once they agree to their online employment pathway plan. Importantly, if a job seeker referred to online employment services complies with the requirement on the day they claim income support, there would be no delay in the income support payment being payable. If there is a reason beyond their control that meant they were unable to, then their payment would also not be delayed.

If a job seeker fails to comply with a requirement to enter into an employment pathway plan, their income support payment would be delayed until they comply.

All existing protections for job seekers would be maintained, which means that job seekers who are unable to agree to their employment pathway plan online within a reasonable timeframe for reasons outside their control will not have their payment delayed. This includes for example, when a job seeker experiences illness, accident, or inability to access online services. Job seekers can also contact the Digital Services Contact Centre for assistance with their employment pathway plan and requirements.

Some job seekers may also be exempt from the measure, consistent with existing arrangements, and will receive their payment immediately after their claim has been processed, backdated to their date of claim. These exemptions include, for example, job seekers who are transferring from another payment, have an exemption from mutual obligations, are in Disability Employment Services or are referred for further assessment at claim.

To the extent that this Schedule may limit the right to social security, the impact is reasonable and proportionate to the policy objective of having job seekers who have no significant barriers to employment connect quickly with employment services that will increase their employment prospects.

Connecting more quickly with employment services improves the job seeker’s employability and their chances of finding and obtaining employment. Assisting a job seeker into the workforce improves the job seeker’s standard of living and helps maintain both the integrity and sustainability of the social security system by ensuring that finite resources are allocated to those in most need.

To the extent that the amendments would have an impact on the right to an adequate standard of living, that impact is limited. As noted above, if a job seeker complies with the requirement to enter into an employment pathway plan online on the day they claim income support, there would be no delay with income support payment being payable. The Schedule would also ensure protections for job seekers who are unable to comply for reasons outside their control and maintain existing provisions exempting a job seeker from these arrangements.

The impact on job seekers who choose not to connect quickly with their employment services provider is reasonable and proportionate because, although these job seekers have no significant barriers to obtaining employment, they have chosen not to engage with the employment services that are available to them as quickly as they could have.

For the reasons set out above, to the extent that the amendments may limit the right to social security or the right to an adequate standard of living, the impact is necessary and proportionate to the legitimate policy objective of encouraging greater workforce participation and self-support for job seekers who have no significant barriers to employment.

The Schedule promotes the right to work by encouraging unemployed Australians subject to these arrangements to engage with their right to work by connecting quickly with employment services that are there to help them obtain gainful employment. Compliance by a job seeker with their requirements places them in an optimum position to seek and obtain gainful employment more quickly. As such, this Schedule seeks to ensure that more job seekers engage with their right to work and experience the benefits of employment sooner than might otherwise be the case.

Conclusion

This Schedule is compatible with human rights. To the extent that it limits rights, the limitation is reasonable, proportionate to the policy objective and for legitimate reasons.



 

Schedule 9 - Repeals of spent provisions

Overview of the Schedule

Schedule 9 repeals redundant provisions in the Social Security Act and the Administration Act that relate to programs and supplements that have ceased, or amend provisions that refer to or relate to repealed provisions.

Human Rights Implications

These schedules engages the following human rights:

·          the right to social security - Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

·          the right to an adequate standard of living - Article 11 of ICESCR

 

This Schedule removes provisions relating to ceased programs and payments which improves the clarity and accessibility of social security law, promoting the right to social security law and through that the right to an adequate standard of living, although as the number of spent provisions being repealed is not great the impact of Schedule 9 on these rights is modest.

Conclusion

This Schedule is consistent with human rights and promotes the right to social security and the right to an adequate standard of living.

Schedule 10 - Contingent amendments

Overview of the Schedule

This Schedule amends the Social Security Act and the Administration Act contingent on the commencement of Schedule 7 to the Social Services Legislation Amendment (Welfare Reform) Act 2018 (the Welfare Reform Act).

Items 1 and 2

The commencement of items 1 and 2 of this Schedule are contingent on the commencement of Schedule 7 to the Welfare Reform Act on 1 January 2022.

Schedule 7 to the Welfare Reform Act makes changes to paragraph 38B(6)(c) of the Social Security Act which relates to a person who is considered to be in continuous receipt of payment in respect of a period if subsection 547AA(1), 615(1) or 771HF(1) applied to the person. Subsection 547AA(1) and 615(1) relate to youth allowance or jobseeker payment, respectively, not being payable if a person fails to attend an interview and subsection 771HF(1) relates to partner allowance not being payable if a person’s assets exceed the allowable limit.

Schedule 7 to the Welfare Reform Act removes 771HF(1) following the closure of partner allowance on 1 January 2022 and Schedule 1 to this Bill repeals 547AA(1) and 615(1), making this paragraph redundant. Items 1 and 2 of this Schedule repeal paragraph 38B(6)(c) of the Social Security Act from the later of the commencement of Schedule 1 to this Bill or Schedule 7 to the Welfare Reform Act.

Human Rights Implications

Schedule 10 engages the following human rights:

·          the right to social security - Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

·          the right to an adequate standard of living - Article 11 of ICESCR

 

The provisions in these schedules are consequential in nature and remove items that will become redundant, and so do not have practical impact on job seekers’ right to social security or adequate standard of living.

Conclusion

Schedule 10 is consistent with the right to social security and adequate standard of living.

Conclusion

The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

Minister for Employment, Workforce, Skills, Small and Family Business



 

Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021

NOTES ON CLAUSES

 

Schedule 1—Streamlined participation requirements

Farm Household Support Act 2014

Part 5 of the Farm Household Support Act applies the social security law, in a modified way, to the provision of payments and benefits under that Act. Farm household allowance under that Act is generally treated in the same way as Jobseeker Payment and Youth Allowance under the social security law. The rate of farm household allowance for a person who is 22 years or older is generally calculated in the same way as Jobseeker Payment, and the rate of farm household allowance for a person under 22 years old is calculated in the same way as Youth Allowance.

The amendments to the Farm Household Support Act at items 1 to 5 of Schedule 1 to the Bill are consequential to the amendments to the Social Security Act and Administration Act made by other items in Schedule 1.

Items 1 and 2 amend section 59 of the Farm Household Support Act, which has the effect of making pharmaceutical allowance payable for persons in receipt of farm household allowance who have turned 22 years of age and either:

·          have been granted an incapacity exemption from the Jobseeker Payment activity test or an incapacity exemption under Subdivision C of Division 5 of Part 2 of the Farm Household Support Act; or

·          are single parents who are principal carers of a dependent child.

Due to the repeal of the Jobseeker Payment activity test and amendments to point 1068-D2 of Module 2 of Benefit Rate Calculator (made by item 108 in Schedule 1), item 2 will insert subsection 59(2) to the Farm Household Support Act which will continue to provide for pharmaceutical allowance to be payable for persons in receipt of farm household allowance who have turned 22 years of age and have been granted an incapacity exemption under Subdivision C of Division 5 of Part 2 of the Farm Household Support Act.

Item 3 repeals table items 18, 19, 20 and 30 from the table in subsection 93(1) of the Farm Household Support Act. The table in subsection 93(1) of the Farm Household Support Act sets out how certain provisions of the social security law apply, in modified form, to the provision of payments and benefits under that Act. Table items 18, 19, 20 and 30 refer to provisions of the social security law that are repealed by this Bill, and hence they are no longer necessary.

Item 4 inserts a new table item 13A into the table in section 95 of the Farm Household Support Act, which specifies how specific provisions in the social security law are modified in their application to payments and benefits under that Act. The new item 13A provides that subparagraph 1161(1)(a)(i) of the Social Security Act (which is repealed and replaced by item 116 of Schedule 1) applies to payments and benefits under the Farm Household Support Act as if it continued to refer to the activity test.

Item 5 inserts a new paragraph (ba) into section 98 of the Farm Household Support Act, which sets out which provisions of the Administration Act do not apply to provision of payments and benefits under the Farm Household Support Act. New paragraph 98(ba) will provide that Divisions 2A and 2B of Part 3 of the Administration Act, which relate to employment pathway plans and circumstances in which paid work is unsuitable, will not apply to payments and benefits under the Farm Household Support Act.

Also, item 1 of Schedule 8 of this Bill makes a technical amendment to section 98 of the Farm Household Support Act by adding a new paragraph which refers to the new clause 4B of Schedule 2 of the Administration Act, which relates to start day rules - see further the explanation of Schedule 8 below about clause 4B. 

Social Security Act 1991

Repeal of the activity test provisions for payments to job seekers

The activity test, i.e. the requirement to actively seek and be willing to undertake paid work in Australia, except unsuitable paid work, dates back 30 years to changes introducing Newstart Allowance in 1991. The policy that a person should genuinely try to find work if in receipt of unemployment benefits dates back decades before then. 

The activity test was inserted into the Social Security Act by the Social Security (Job Search and Newstart) Amendment Act 1991 to cover both Job Search and Newstart Allowance participants. The activity test effectively replaced the former “work test” which meant that unemployment benefits were payable where an applicant satisfied the Secretary that they were unemployed, capable and willing to undertake suitable paid work and had taken during the relevant period “reasonable steps to obtain such work”.

The Explanatory Memorandum for that Bill explained that:

An “activity test” would be introduced, incorporating the current separate work/activity test arrangements. The activity test would encourage active and effective job search while providing job seekers with vocational training, labour market programs and other courses (including courses suggested by the client and approved by the Commonwealth Employment Service) which would improve the client’s prospects of obtaining work .

The joint judgement of Heerey, Madgwick and Merkel JJ in Spencer v Secretary, Department of Social Security (1998) 50 ALD 353 at 358 described the policy behind the introduction of the activity test:

The policy that persons should not receive unemployment benefits (however described) unless they are genuinely making an attempt to find work is understandable. The policy, in substance, remained unchanged since the 1947 [Social Security] Act.

As of 1991, payment arrangements were very different - job seekers received Job Search Allowance for 12 months, and needed to comply with the activity test. After 12 months unemployment, job seekers needed to separately apply for Newstart Allowance and enter an agreement known as a Newstart Activity Agreement.

Since that time mutual obligation requirements have moved on, and in practice job seekers’ qualification for JobSeeker Payment and other unemployment payments are generally met in practice by complying with the terms of an agreement known as an employment pathway plan, or less formally as a job plan (or in some cases a participation plan). In accordance with longstanding practice, employment pathway plan requirements include requirements to actively seek and be willing to undertake paid work, except unsuitable paid work, as well as other requirements in many cases.

Use of the phrase “activity test” and splitting mutual obligation requirements into two - a requirement to look for work and a requirement to enter employment pathway plans, complicates the provisions of the social security law and their administration, without adding any benefit.

The lengthy and complex activity test provisions serve no purpose which cannot be served by shorter and simpler provisions. If not removed, these provisions will continue to cause needless confusion and complication to the detriment of job seekers and the social security system.  

Therefore, provisions that impose an activity test as a qualification criterion for a participation payment are largely redundant, and will be repealed. The provisions that impose requirements to enter into employment pathway plans for the participation payments; to comply with those plans; and to be willing to enter into new plans when required to do so will be consolidated. In the process of consolidation there will be some minor amendments but the provisions will remain very similar to current provisions for plans entered under the new section 40D as outlined below in this explanatory memorandum. 

However, it will remain a requirement for qualification for all participation payments that a person is willing to accept and undertake paid work in Australia, except work that is unsuitable to be done by the person, even where they are complying with the terms of their employment pathway plan. This reflects that on rare occasions a person may have no desire to accept work.

Where the Secretary is satisfied that a person is not genuinely willing to accept and undertake suitable work, or not genuinely unemployed, current policy, practice and law may result in cancellation of their payment, and this will continue in accordance with provisions in the Bill.

The provisions about what makes particular paid work unsuitable for a person will also be retained. The provisions about when a person must or may be exempted from mutual obligation requirements will also be retained; in some cases, in consolidated form. 

Consolidation of employment pathway plan requirements

Under the Social Security Act, in order for a person to qualify for a participation payment, the person must:

·          enter into an (and be willing to enter into another) employment pathway plan when required by the Secretary to do so; and

·          comply with their employment pathway plan.

These general requirements are essentially the same for all participation payments, albeit appearing in different provisions in the social security law:

·          section 500A in relation to Parenting Payment;

·          subsection 544(1) in relation to Youth Allowance (other);

·          subsections 605(1) and (2) and subsection 606(1) in relation to Jobseeker Payment;

·          subsections 731L(1) and (2) and subsection 731M(1) in relation to Special Benefit.

The requirements are being consolidated under the term “employment pathway plan requirements” - which will become a new defined term in subsection 23(1) of the Act (see item 12).

The existing exceptions to the requirement to meet the employment pathway plan requirements will remain, although again, the relevant provisions will be consolidated and simplified.

Amendments to definitions

References to Employment Department and Employment Secretary

Under successive Administrative Arrangements Orders (AAO), various aspects of the social security law have been administered by different portfolio Ministers. In many of the amendments to the social security law made by the Bill, the term “Employment Secretary” is being used instead of the general term “Secretary”, to clarify which portfolio Secretary is empowered to makes decisions or exercise powers under those provisions. 

Item 6 will insert a new section 3AB in the Social Security Act to clarify that a provision in the social security law that uses the generic “Secretary” can still be administered by the Secretary of the Employment Department (i.e. the “Employment Secretary”), if that provision falls within the scope of that Secretary’s responsibilities in accordance with the current AAO.

Item 9 amends the definition of “Employment Department” in subsection 23(1) of the Social Security Act, to provide that the Employment Department is the Department administered by the Minister who administers Division 3AA of Part 3 of the Administration Act. Currently, the Employment Department is defined to be the Department administered by the Minister who administers the Fair Entitlements Guarantee Act 2012 . Under the current AAO, that Minister is the Attorney-General - which would make the “Employment Department” for the purposes of the social security law the Attorney-General’s Department (and the “Employment Secretary” the Secretary of the Attorney-General’s Department). The amendment makes the relevant department clear on the face of the social security law, not just in a substituted reference order. [1]

The “Employment Department” is supposed to be the Department with portfolio responsibility for employment policy and employment services - which is currently the Department of Education, Skills and Employment. Division 3AA of Part 3 of the Administration Act contains the compliance provisions for social security payments to job seekers, which in accordance with the current AAO are administered by Ministers for the Education, Skills and Employment portfolio. The amendment to the definition of “Employment Department” will ensure that references in the social security law to the Employment Department and Employment Secretary will be to the correct portfolio.

Activity test and employment pathway plan definitions

As a consequence of the replacement of the activity test with employment pathway plan requirements and an acceptance of paid work requirement, various definitions in subsection 23(1) of the Social Security Act are repealed or amended by item 8 and by items 10 - 14.

Importantly, item 12 sets out when a person satisfies the employment pathway plan requirements This term encapsulates both employment pathway plan requirements (or participation requirements for Parenting Payment) for the participation payments, as well as the requirement to actively seek and be willing to accept and undertake paid work in Australia, except work which is unsuitable, which will continue but no longer be known as the activity test. 

In addition, the concept of unsuitable paid work (being paid work which a person need not seek, accept or undertake in order to remain qualified for a participation payment), is being consolidated in the new section 40X of the Administration Act, inserted by item 123 of Schedule 1 to the Bill. Both suitable and unsuitable work concepts appear in many places in the social security law. They occur most particularly in connection with activity tests, requirements that can be included or not included in employment pathway plans and compliance consequences for refusing work. The concepts are the same, but slightly different language is sometimes used in different provisions.

With the replacement of the activity test, the opportunity is being taken to utilise a single concept of unsuitable work, and to use the same language, across all participation payments.

Technical amendments to disability support pension (items 15 and 16)

Although disability support pension is not a participation payment and does not have an activity test, in order to qualify for disability support pension, a person must not have brought about their permanent inability to work or blindness with a view to obtaining an exemption from an activity test for Jobseeker Payment or Youth Allowance (subsections 94(6) and 95(2) of the Social Security Act).

The provisions relating to activity tests for Jobseeker Payment and Youth Allowance are being repealed and replaced with employment pathway plan requirements and, in the case of Youth Allowance (student), a requirement to undertake full-time study.

Hence, items 15 and 16 amend the provisions relating to disqualification for disability support pension that refer to the activity test for Jobseeker Payment and Youth Allowance so that they refer to the new qualification criteria for those payments.

Amendments to Parenting Payment (items 17 to 21)

Parenting Payment does not have an activity test per se , but generally speaking, in order to qualify for Parenting Payment, a person must meet “participation requirements” - see paragraphs 500(1)(c) and (ca) of the Social Security Act. Also, under subsection 502(1) of that Act if the Secretary is of the opinion that a person should undertake paid work, other than unsuitable paid work, the Secretary may notify the person that they are required to act in accordance with that opinion.  

The only people who do not need to meet these requirements are single people with a child of less than 6 years of age, who are not specified in a legislative instrument made by the Minister under subsection 500(2) of the Social Security Act. The current instrument made by the Minister under that provisions is the Social Security (Parenting payment participation requirements - classes of persons) Instrument 2021 - which relates to ParentsNext participants.

The participation requirements for Parenting Payment are set out in section 500A of the Social Security Act. They generally replicate the requirements for persons on other participation payments to enter into and comply with employment pathway plans - in this case, a Parenting Payment Employment Pathway Plan. However, unlike plans for those in receipt of other participation payments, Parenting Payment Employment Pathway Plans may also include requirements about the health or education of a child in relation to whom the person receives Parenting Payment - see subsection 501A(1A). 

Item 18 makes technical amendments consequent upon item 19. 

Item 19 inserts updated criteria for a person to qualify for Parenting Payment, however as there is no change of policy involved in these amendments, single people with children under 6 years old will still not be required to meet employment pathway plan requirements, unless they are in a class of persons specified by the above legislative instrument under subsection 500(2) of the Act. This is the cohort to which paragraph 500(1)(ca) applies. 

Item 19 inserts a new subsection 500(2A) which means that for a person to whom paragraph 500(1)(c) applies to be qualified for Parenting Payment they will, apart from meeting other qualification criteria, need to either:

·          satisfy the employment pathway plan requirements and satisfy the Employment Secretary that they are willing to actively seek and to accept and undertake suitable paid work in Australia; or

·          have an exemption from the employment pathway plan requirements and satisfy the Employment Secretary that were it not for the circumstances resulting in the exemption they would be willing to actively seek and to accept and undertake suitable paid work in Australia. 

Item 19 also inserts a new subsection 500(2B) which means that for a person to whom paragraph 500(1)(ca) applies to be qualified for Parenting Payment they will, apart from meeting other existing qualification criteria in section 500, need to either:

·          satisfy the employment pathway plan requirements and, if required, satisfy the Employment Secretary that they are willing to actively seek and to accept and undertake suitable paid work in Australia; or

·          have an exemption from the employment pathway plan requirements and, if required, satisfy the Employment Secretary that were it not for the circumstances resulting in the exemption they would be willing to actively seek and to accept and undertake suitable paid work in Australia. 

Item 19 also adds or amends relevant notes. 

As noted above, Parenting Payment recipients subject to employment pathway plan requirements and not covered by an exemption may currently be given requirements in respect of paid work due to subsection 502(1). 

The references in subsections 500(2A) and 500(2B) above to satisfying the Employment Secretary of a willingness to actively seek and to accept and undertake suitable paid work reflect that in rare cases a person may not be genuinely willing to do so even if they are going through the motions of complying with their employment pathway plan. In those circumstances, they cannot expect to remain qualified for their payment - unless they have an exemption from employment pathway plan requirements, and they would otherwise be genuine in their efforts to obtain and maintain paid work. See further the explanation of equivalent provisions for Youth Allowance below.   

A delegate could not impose employment pathway plan requirements on a Parenting Payment recipient without considering their parenting responsibilities and other circumstances. Similarly, such persons could not be expected to be willing to obtain or maintain paid work if it would not be suitable for them including in light of their parenting responsibilities. 

Item 20 repeals section 500A, which is now redundant because its contents are embodied by other items in the Bill.  

Item 21 similarly repeals Divisions 2, 3 and 3A of Part 2.10, which relate to Parenting Payment Employment Pathway Plans, additional participation requirements for parenting payment, and exemptions from participation requirements, respectively. These provisions are being replaced. 

Provisions relating to employment pathway plans for people claiming or receiving Parenting Payment will now be set out in Division 2A of Part 3 of the Administration Act (see item 123); any “additional participation requirements” on Parenting Payment recipients will be imposed through their employment pathway plans; and exemptions from “participation requirements” are now exemptions from the employment pathway plan requirements (set out in Subdivision C of Division 2A of Part 3 of the Administration Act).

Item 17 repeals note 3 to subsection 237(1) as a consequence of the repeal of subsection 501(4) by item 21.

Amendments to Youth Allowance (items 22 to 67)

Youth Allowance is payable to three kinds of young people - full-time students, Australian Apprentices (referred to in the social security law as “new apprentices”), and job seekers. Youth Allowance paid to full-time students is known as “Youth Allowance (student)” and Youth Allowance paid to job seekers is known as “Youth Allowance (other)”.

Because Youth Allowance is a single kind of payment in the social security law, but is payable to young people in quite different situations, the qualification criteria, mutual obligation requirements, compliance regime and calculation of rates of payment are complex.

The amendments to Part 2.11 of the Social Security Act made by Schedule 1 to the Bill are designed to simplify those provisions that relate to Youth Allowance (other), but to leave the operation of provisions that relate to Youth Allowance payable to full-time students and new apprentices unchanged, apart from minor technical amendments consequential to amending the Youth Allowance (other) provisions. 

Qualification for Youth Allowance (other)

Items 22 to 28 amend section 540 of the Social Security Act, which sets out the general rule for qualification for Youth Allowance. In particular, item 24 replaces subparagraph 540(a)(i), which currently states that a person is qualified for Youth Allowance if the person satisfies (or is not required to satisfy) the activity test. 

The phrase “activity test” in relation to Youth Allowance is being replaced by reference to a full-time study test, which will only apply to persons in receipt of Youth Allowance as students (see items 30 and 31). This is not a substantive change - currently full-time students satisfy the activity test by virtue of their full-time study - the change simply discards the unnecessary terminology of “activity test”.

Thus, a person will be qualified for Youth Allowance under section 540 if they undertake full-time study or are exempt from full-time study but would otherwise be undertaking that study (subparagraphs (i) and (ia)); or the person either satisfies the requirements in subsections 540(2) (subparagraph (ib)).

Item 22 renumbers the existing section 540 as subsection 540(1), as a consequence of the addition of new subsections 540(2) and 540(3) inserted by item 28. (Item 7 amends subsection 7(7) as a consequence of this renumbering.)

Item 23 amends the chapeau or in other words the introductory part of paragraph 540(a), due to other amendments being made to section 540.

Item 24 inserts a new paragraph 540(a), which relates to when a person will be qualified for Youth Allowance. It provides that the circumstances in which a person may be qualified for Youth Allowance are if:

·          the person is undertaking full-time study as defined in section 541B;

·          the person is exempt from undertaking full-time study because of an exemption in Subdivision C, (such exemptions are being retained in essentially unaltered form for those who would otherwise need to undertake full-time study to be qualified for Youth Allowance) but the person satisfies the Secretary that the person would otherwise be undertaking full-time study;

·          the person satisfies the new subsection 540(2) being inserted by item 28. 

Item 25 makes a technical amendment to subparagraph 540(a)(ii) consequent to other amendments to section 540.  

Item 26 corrects an error by inserting a missing “and” at the end of what is currently subparagraph 540(a)(ii) (which becomes subparagraph 540(1)(a)(ii) due to item 22).

Item 27 makes a technical amendment by repealing a superseded paragraph.

Item 28 inserts new subsection 540(2) reflecting that the terminology of the activity test is not being used. Subsection 540(2) means that for a person to be qualified for Youth Allowance other than as an apprentice or full-time student they will, apart from meeting other qualification criteria, need to either:

·          satisfy the employment pathway plan requirements, satisfy the Employment Secretary that they are willing to actively seek and to accept and undertake suitable paid work in Australia, and not undertake full-time paid work for at least 35 hours per week; or

·          have an exemption from the employment pathway plan requirements, satisfy the Employment Secretary that were it not for the circumstances resulting in the exemption they would be willing to actively seek and to accept and undertake suitable paid work in Australia, and not undertake full-time paid work for at least 35 hours per week. 

The references to not undertaking full-time paid work for at least 35 hours per week do not involve a change to the law as current subparagraph 541(3)(b)(i) contains this qualification criterion.    

This item also inserts some notes referring to new provisions inserted by the Bill. 

Subsection 540(2) means that a person will not be qualified for Youth Allowance merely because they are of Youth Allowance age and their circumstances are such that an exemption would apply them - the person would also need to satisfy the Secretary or Employment Secretary that were it not for the circumstances the exemption relates to they would otherwise be undertaking full-time study or be willing to actively seek and to accept and undertake paid work in Australia, except paid work that is unsuitable to be done by them. 

In relation to the condition of satisfying employment pathway plan requirements including also being required to satisfy the Employment Secretary about willingness to actively seek, accept and undertake suitable paid work, it is envisaged that it would be rare for this to make a practical difference because generally where a person is complying with an employment pathway plan they are also satisfying the Employment Secretary about their willingness to work. However, in rare cases a person may be going through the motions of complying with their plan but not actually willing to seek or accept work. For instance, they may be focussed on a business which is not generating much income, volunteer work or some other project. Such activities may be highly commendable. Typically, where a person undertakes them, they would still be genuinely looking for paid work, for example a person may be pursuing a small business activity only because their ongoing genuine efforts to find other work have not succeeded. 

But there are rare cases where other activities are pursued at the expense of making genuine attempts to find paid work and in those cases a person cannot expect the taxpayer to support them. If a person’s circumstances are such that an exemption applies to them it is envisaged that it would also only be in rare cases that they would fail to satisfy the Secretary or Employment Secretary that were it not for those circumstances they would be doing full-time study or pursing suitable paid work in Australia. 

This also is reflective of current policy and legislation that requires a person to be unemployed in order to qualify for payment.    

Item 29 amends paragraph 540AB(1)(e) as a result of repeal of the activity test for Youth Allowance (other). Section 540AB provides for a person who has a permanent medical condition preventing them from undertaking full-time work to qualify for Youth Allowance temporarily while their work capacity is being assessed. During that time, they are currently not required to satisfy the activity test. This is being amended to provide that, during that time, the person is not required to enter into an employment pathway plan.

Full-time study and exemptions from full-time study

Subdivisions B and C of Division 1 of Part 2.11 of the Social Security Act set out the activity test for Youth Allowance and exemptions from that activity test, respectively. Reference to the activity test for Youth Allowance (other) is redundant, as mutual obligation activities for persons in receipt of Youth Allowance (other) will be those set out in their employment pathway plans, while the activity test for full-time students is, essentially, to undertake full-time study (see paragraph 541(1)(a)). (New apprentices in receipt of Youth Allowance do not have to satisfy the activity test).

Consequently, the current provisions about the “activity test” for Youth Allowance, and exemptions from that test, are being amended to relate only to full-time study.

Item 30 repeals a heading of a subdivision and substitutes a new heading which refers to full-time study.

Item 31 repeals sections 541, 541A and 541D. This results in Subdivision B of Division 1 of Part 2.11 consisting only of sections 541B and 541C, which set out when a person is undertaking full-time study for the purposes of the social security law. This will remain a criterion for a person to qualify for Youth Allowance (student) under section 540.

As a consequence, the heading to the Subdivision is amended by item 30.

Items 32 to 57 amend provisions in Subdivision C of Division 1 of Part 2.11, which relate to exemptions from the activity test for Youth Allowance. Insofar as these exemptions would relate to the activity test for Youth Allowance (other), they are being remade as exemptions to the employment pathway plan requirements in Subdivision C of Division 2A of Part 3 of the Administration Act. 

The amendments made by items 32 to 57 are technical changes which simply ensure that the provisions cease to apply to recipients of Youth Allowance (other) and apply properly to recipients of Youth Allowance (student).   

Items 32, 33 and 54 replace Subdivision and section headings so that they refer to full-time study.

Items 34, 38, 42, 55 and 57 change references to satisfying or not satisfying the activity test with references to undertaking or being exempt from undertaking full-time study.

Items 36 to 39 repeal and replace paragraph 542A(1)(a) and subsection 542A(1A) respectively, which currently relate to recipients of both Youth Allowance (student) and Youth Allowance (other), so that they only relate to recipients of Youth Allowance (student). 

Item 40 repeals subsection 542A(3) as a consequence of the amendment of paragraph 542A(1)(a), and the repeal of subsection 542C(9) by item 52 is a consequence of that repeal.

Items 37 and 34 to 51 make further changes to the provisions amended by items 36 and 42 to omit redundant words.

Items 41, 53 and 56 repeal sections that apply only to recipients of Youth Allowance (other). The amendment at item 35 and the repeal of subsection 542C(8) by item 52 are consequent on these repeals.

Repeal of Youth Allowance Employment Pathway Plan provisions

Item 60 repeals Subdivision E of Division 1 of Part 2.11. As noted above, the employment pathway plan provisions for participation payments are being consolidated in Division 2A of Part 3 of the Administration Act. Those provisions will apply to claimants for and recipients of Youth Allowance (other). Hence, item 60 repeals the equivalent provisions for Youth Allowance Employment Pathway Plans.

Other amendments

Items 58 to 67 amend other provisions in Part 2.11 of the Social Security Act as a consequence of other amendments to the Act, to change references to the activity test or Youth Allowance Employment Pathway Plans, and change or repeal references to provisions amended or repealed by other items.

In relation to item 67, currently, section 556A provides the rate of Youth Allowance for a person who is participating in an approved program of work for income support payment be increased by $20.80 per fortnight, unless during the fortnight the person “ceases to participate in the program in circumstances that constitute: (c) a failure of the activity test…; or (d) a failure to comply with a requirement in a Youth Allowance Employment Pathway Plan…”.

The new section 556A will not include in paragraphs (c) and (d). These are redundant because of the operation of the compliance framework for Jobseeker Payment in Divisions 3AA and 3A of Part 3 of the Administration Act, which, among other things, provide for suspension and reduction of Jobseeker Payment for failures in substance the same as those mentioned in paragraphs (c) and (d).

The amendments to section 556A also make clear that if a person participates in an approved program of work in a fortnight, they will not lose the $20.80 approved program of work supplement in respect of that fortnight even if they cease to participate in the approved program of work in that fortnight. If their ceased participation amounted to a failure to comply with their employment pathway plan it is possible that their payment would be suspended due to the compliance framework - but the change to section 556A does not impact on whether or not their payment would be suspended. 

Other items in the Bill makes equivalent changes to sections 644AAA and 747 in respect of Jobseeker Payment and Special Benefit. This also means that sections 556A, 644AAA and 747 will become equivalent to the current section 503A for Parenting Payment. 

Amendments to Jobseeker Payment (items 68 to 82)

Jobseeker Payment, provided for in Part 2.12 of the Social Security Act, is the principal social security payment for job seekers aged 22 up to age pension age. Currently, in order to qualify for Jobseeker Payment, a person needs to satisfy the activity test or be exempt from the activity test (paragraph 593(1)(b)), as well as enter into (or enter into another), and comply with, a Jobseeker Employment Pathway Plan, unless not required to (paragraphs 593(1)(c) to (f)).

As noted above, the unnecessary phrase “activity test” is being replaced by reference to employment pathway plan requirements. However, the substance of what is currently known as the activity test will be retained in qualification criteria in relation to being willing to accept and undertake paid work, except unsuitable paid work, consistent with longstanding practice. Also, the employment pathway plan provisions are being removed from each of the participation payment Parts of the Social Security Act and consolidated in a new Division 2A of Part 3 of the Administration Act.

Therefore, the amendments to Part 2.12 of the Act in items 68 to 81 of Schedule 1 will have the effect of repealing provisions relating to the activity test and its exemptions, or replacing references to the activity test and its exemptions with reference to the employment pathway plan requirements and exemptions from those requirements, as appropriate. The items also make other textual amendments as a consequence of those substantive amendments.

Item 68 makes a technical amendment consequent to item 69.    

Item 69 amends note 13 to subsection 593(1) to remove reference to Subdivision C, which is being repealed by item 77.

Item 70 includes new qualification criteria for Jobseeker Payment to reflect that the terminology of the activity test is not being used. A person will be qualified for Jobseeker Payment if they meet other qualification criteria and either:

·          satisfy the employment pathway plan requirements and satisfy the Employment Secretary that they are willing to actively seek and to accept and undertake suitable paid work in Australia; or

·          have an exemption from the employment pathway plan requirements and satisfy the Employment Secretary that were it not for the circumstances resulting in the exemption they would be willing to actively seek and to accept and undertake suitable paid work in Australia. 

As noted in relation to Youth Allowance above, in rare cases a person may not be genuinely seeking or willing to accept or undertake paid work and in those circumstances they cannot expect to remain qualified for their payment - unless they have an exemption from employment pathway plan requirements and they would otherwise be genuine in their efforts to obtain and maintain paid work.  

This item also includes notes which refer to new provisions relating to employment pathway plan requirements and unsuitable paid work.

Item 71 amends paragraph 593(1D)(f) as a result of repeal of the activity test for Jobseeker Payment. Subsection 593(1D) provides for a person who has a permanent medical condition preventing them from undertaking full-time work to qualify for Jobseeker Payment temporarily while their work capacity is being assessed. During that time, they are currently not required to satisfy the activity test. This is being amended to provide that, during that time, the person is not required to enter into an employment pathway plan.

Section 595 of the Social Security Act sets out when a person may be treated as unemployed for the purposes of qualification for Jobseeker Payment. Among other things, subsection 595(2) provides that a person complying with a requirement in a Jobseeker Employment Pathway Plan or a requirement under subsection 601(1A) to undertake paid work can be treated by the Secretary as being unemployed. Subsection 595(3) provides for the Secretary to take into account those same requirements in deciding whether or not a person should be treated as unemployed.

Item 72 repeals the note to subsection 595(1) as a result of the repeal of the activity test for Jobseeker Payment by item 77.

Items 73 and 74 amend subsection 595(2) and paragraph 595(3)(a) to replace this terminology with the new terminology relating to complying with a requirement in an employment pathway plan (subsection 601(1A) being repealed by item 77).

Section 598 of the Social Security Act provides for when a person is not qualified for Jobseeker Payment for a period due to their “liquid assets test waiting period”. Paragraphs 598(3AA)(b) and (3B)(b) contain references to people who are “under Subdivision BA, not required to satisfy the activity test”. 

Subdivision BA of Division 1 sets out when a claimant or recipient of Jobseeker Payment is exempt from the activity test due to temporary incapacity for work. This Subdivision is being repealed (see item 77) and replaced with a temporary incapacity exemption from the employment pathway plan requirements (see new section 40L, in particular paragraph 40L(5)(a), inserted into the Administration Act by item 123).

Items 75 and 76 consequently replace the references in paragraphs 598(3AA)(b) and (3B)(b) to the temporary incapacity for work exemption from the activity test in Subdivision BA of Division 1 with reference to the temporary incapacity for work exemption from the employment pathway plan requirements in section 40L of the Administration Act.

Item 77 repeals Subdivisions B, BA and C of Division 1 of Part 2.12, which relate to the activity test for Jobseeker Payment, exemptions from the activity test, and Jobseeker Employment Pathway Plans, respectively. Provisions relating to employment pathway plans for people claiming or receiving Jobseeker Payment will now be set out in Division 2A of Part 3 of the Administration Act (see item 123), and the substance of exemptions from activity test will become exemptions from the employment pathway plan requirements (set out in Subdivision C of Division 2A of Part 3 of the Administration Act).

Item 78 replaces a reference in subsection 613(2) to “a Jobseeker Employment Pathway Plan” with “an employment pathway plan”.

Item 79 repeals the note to subsection 613(2) that refers to sections repealed by item 77.

Item 80 repeals section 615, which provides among other things that a Jobseeker Payment is not payable to a person if the person fails to attend an interview or fails to enter into a Jobseeker Employment Pathway Plan when required by the Department to do so. This section is no longer needed - see Schedule 8 of this Bill. 

Item 81 repeals and replaces section 644AAA for the same reason as section 556A is being repealed and replaced by item 67, as noted above. 

Item 82 amends the qualification criteria for an education entry payment payable to a recipient of Jobseeker Payment, to replace reference to the activity test and a requirement under a Jobseeker Employment Pathway Plan with reference to compliance with a requirement in an employment pathway plan.

Amendments to Special Benefit (items 83 and 88)

Special Benefit is a discretionary social security payment that is typically only payable to people who are not qualified for another kind of social security payment, and who are in severe financial hardship. Non-residents who are holders of certain nominated visas [2] have similar qualification requirements for Special Benefit as claimants for other participation payments; that is, they have to satisfy the activity test for Special Benefit (or be exempt from it), as well as entering into (or entering into another) Special Benefit Employment Pathway Plan when required to do so, and to comply with their plan.

In line with the amendments to provisions relating to other participation payments, items 83 to 88 of Schedule 1 make amendments to Part 2.15 of the Social Security Act that will have the effect of repealing provisions relating to the activity test and its exemptions, or replacing references to the activity test and its exemptions with reference to the employment pathway plan requirements and exemptions from those requirements, as appropriate. The items also make other textual amendments as a consequence of those substantive amendments.

Item 83 repeals and replaces paragraph 729(2)(da) with a new paragraph utilising the new terminology of failing to satisfy the employment pathway plan requirements for Youth Allowance, in place of reference to the Youth Allowance activity test and Youth Allowance Employment Pathway Plans.

Item 84 corrects a typographical error in paragraph 729(2)(g).

Item 85 repeals and replaces subsection 729(2B), which sets out when a person referred to in paragraph 729(2)(g) (i.e. a holder of a nominated visa) is qualified for Special Benefit. The new subsection (2B) replaces reference to the activity test and requirements relating to Special Benefit Employment Pathway Plans with the new terminology. This is that the person is meeting the employment pathway plan requirements and is willing to actively seek and to accept and undertake paid work, except unsuitable paid work; or that the person is exempt from employment pathway plan requirements but would have been willing to actively seek and to accept and undertake suitable paid work were it not for the circumstances relating to the exemption.

As noted in relation to the other participation payments above, in rare cases a person may not be genuinely seeking or willing to accept or undertake paid work and in those circumstances they cannot expect to remain qualified for their payment - unless they have an exemption from employment pathway plan requirements and they would otherwise be genuine in their efforts to obtain and maintain paid work.  

Item 86 repeals Subdivisions AA and AB of Division 1 of Part 2.15, which provide for the activity test for Special Benefit and its exemptions, and for Special Benefit Employment Pathway Plans, respectively.

Item 87 replaces a reference in paragraph 737(3)(b) to “a Special Benefit Employment Pathway Plan” with “an employment pathway plan”.

Item 88 repeals and replaces section 747 for the same reason that sections 556A and 644AAA are being repealed and replaced, noted above - see item 67. 

Other amendments (items 89 to 118)

Items 89 to 118 make minor technical amendments to Social Security Act provisions to:

·          replace references to the activity test for one or more participation payments with references to the employment pathway plan requirements;

·          replace references to exemptions from the activity test for one or more participation payments with references to exemptions from the employment pathway plan requirements;

·          replace references to an employment pathway plan for recipients of a specific participation payment (e.g. “Youth Allowance Employment Pathway Plan”, “Jobseeker Employment Pathway Plan”) with reference to the generic term “employment pathway plan”; and

·          amend or repeal references in provisions to other provisions that are amended or repealed.

Social Security (Administration) Act 1999

Items 119 to 122 make minor technical amendments as explained below in this memorandum.

Item 123 inserts a new Division 2A of Part 3 of the Administration Act. Division 2A contains consolidated provisions about employment pathway plans, new provisions relating to entering into employment pathway plans through the use of technological processes, provisions about what plans may contain and cannot contain, consolidated provisions about what makes particular paid work unsuitable for a person, consolidated provisions about the variation, cancellation and review of employment pathway plans, and consolidated provisions concerning when a person may or must be exempted from employment pathway plan requirements.   

New section 40A relates to the requirement to enter employment pathway plans. It consolidates current provisions from four sections into one section.  

New subsection 40A(1) provides that if an employment pathway plan is not in force in relation to a person then the Employment Secretary may require the person to enter into an employment pathway plan in certain circumstances.

For Jobseeker Payment, Youth Allowance and Special Benefit these circumstances are when:

·          the person is receiving or has made a claim for the payment; or

·          the Department is contacted by or on behalf of the person in relation to a claim for Jobseeker Payment or Youth Allowance.

This is equivalent to current subsections 544A(1), 605(1) and similar to subsection 731L(1) in relation to each of those payments respectively.  

For Parenting Payment, these circumstances are when the person is someone to whom current paragraph 500(1)(c) or (ca) applies and either:

·          the person is receiving, or has made a claim for, Parenting Payment; or

·          the Department is contacted by or on behalf of the person in relation to a claim for Parenting Payment.

 

New subsection 40A(2) provides that if an employment pathway plan is in force in relation to a person, the Employment Secretary may require the person to enter into another plan instead of the existing one. 

This provision is equivalent to the current subsection 501(2), 544A(3), 605(2) and 731L(2) except for a minor technical change, namely that the reference in subsection 605(2) to the “Secretary” has been replaced with a reference to the “Employment Secretary”. This is to enable easier identification of which Secretary is responsible for this provision. 

New subsection 40A(3) provides that the Employment Secretary must notify a person who is required to enter into an employment pathway plan of the requirement. The notification must give the person the option of entering into the plan under section 40D and, taking account of the person’s circumstances, may also give the person the option of entering into the plan under the streamlined processes provided for by section 40E. 

This means that all job seekers who want to enter a plan via the traditional method of having their plan approved by a delegate of the Employment Secretary will be able to do so. The notification must take account of the person’s circumstances for the purpose of whether the person is given the option of using the streamlined processes for entering into a plan. This means that the most disadvantaged job seekers will receive tailored assistance, face-to-face, from their employment services provider.

New section 40B relates to the use of technological processes for entry into employment pathway plans. Subsection 40B(1) provides that the Employment Secretary may arrange for the use of technological processes in relation to persons entering into employment pathway plans under section 40D or 40E, or in relation to the variation of such plans.  

New section 40D relates to “traditional” plans approved by human delegates. Such delegates could include staff of employment services providers or in a contact centre in the department.

As noted below, even if technological processes are used in relation to plans entered into under section 40D, those processes cannot approve the content, and there will always be a need for a human delegate to approve the content of a plan under that provision, taking into account all matters that must currently be taken into account by delegates when approving a plan. 

The technological processes which might be used in relation to entering into plans under section include the use of telephones or email by delegates and job seekers to communicate in traditional ways about the content of a plan. It is also possible, for example, that a job seeker might partially develop a plan using the streamlined process and then telephone the contact centre for assistance in which case a human delegate might not only assist them but also, if the job seeker wished, approve the content of the plan for them. 

New section 40E relates to streamlined processes for entering into employment pathway plans as outlined below. As made clear by a note to subsection 40B(1), in the case of either traditional or streamlined plans a person does not enter into an employment pathway plan unless the person accepts the plan. This is due to paragraphs 40D(1)(a) and 40E(1)(c).

New subsection 40B(2) provides that if such an arrangement is made in writing, the arrangement is not a legislative instrument. This provision is merely declaratory of the law and does not prescribe a substantive exemption from the requirements of the Legislation Act. It is intended to assist the reader to understand that such an arrangement is administrative in nature and is not a legislative instrument within the meaning of subsection 8(4) of the Legislation Act.

New section 40C relates to the use of questionnaires. New subsection 40C(1) provides that the Employment Secretary may arrange for persons to complete a questionnaire in relation persons entering into employment pathway plans under section 40D or 40E, or in relation to the variation of such plans. 

New subsection 40C(2) provides that a questionnaire may relate to, but is not limited to, one or more of the employment pathway plan matters in relation to the person. A note to subsection 40C(2) draws the reader’s attention to section 40F, which contains the employment pathway plan matters.

New subsection 40C(3) provides that a purpose of the questionnaire is to obtain information for the purpose of working out under which section the person is able to enter into an employment pathway plan. 

Use of a questionnaire in connection with the social security law is not new. For example, the Job Seeker Classification Instrument is a questionnaire which job seekers have completed for many years, consistently with subparagraph 63(4)(a) of the Administration Act, which relates to questionnaires. Referring to the use of questionnaires in the provisions which specifically relate to employment pathway plans may assist job seekers to understand the law which is relevant to them.

Job seekers who are assessed as job-ready and able to use and access digital services will be able to choose to manage their requirements online, without being serviced by a provider. Job seekers will still need to meet similar requirements to those in provider servicing, but there will be difference in how they report and manage their requirements.

New subsection 40C(4) provides that if an arrangement under this section is made in writing, the arrangement is not a legislative instrument. This provision is merely declaratory of the law and does not prescribe a substantive exemption from the requirements of the Legislation Act. It is intended to assist the reader to understand that such an arrangement is administrative in nature and is not a legislative instrument within the meaning of subsection 8(4) of the Legislation Act.

New section 40D relates to plans developed by the Employment Secretary. New subsection 40D(1) makes clear that a person enters an employment pathway plan by notifying the Employment Secretary of their acceptance of it, if the acceptance occurs after one or more communications between the person and the Employment Secretary, or in practice a delegate, in relation to that plan. This is consistent with longstanding practice. A note indicates that section 40V relates to the variation of employment pathway plans. 

Unlike current subsections 501(5), 544A(4), 605(3) and 731L(4) which relate to the process of entering plans for each of the participation payments, this new provision does not refer to a plan being “negotiated”. The reference to negotiation has sometimes caused job seekers to misunderstand the degree of latitude they have in determining their employment pathway plan requirements. In Kronen v Secretary of the Department of Education, Employment and Workplace Relations [2009] FCA 1268 the Federal Court stated that the level of compromise and required mutual agreement that the reference to “negotiation” might otherwise suggest: 

 

is radically curtailed in this statutory setting … In this scheme, the ‘right to negotiate’ could be illusory in quite some degree for some purposes and especially when the Secretary (or a delegate) takes decisions in effectuation of the purposes of the Act itself. This is not to say that there was no room for discussion, accommodation and compromise. Rather, it is to recognise that the actual terms of the negotiation itself were something in which the Secretary, acting reasonably and in good faith, could ultimately dictate, approve or disapprove, if there was to be an agreement

 

This interpretation of the meaning of “negotiation” in this context has been maintained in subsequent Federal Court cases. This new provision therefore better reflects, on its face, judicial statements about the nature of the communications between job seekers and delegates in relation to the content of employment pathway plans. Job seekers will continue to be able to have discussions with delegates about the content of their plans - face-to-face or by telephone or email.     

New subsection 40D(2) provides that the employment pathway plan developed by the Employment Secretary must contain one or more requirements that the person is required to comply with. This is equivalent to the current requirement in subsections 501A(1), 544B(1), 606(1) and 731M(1) that plans have one or more requirements that the person is required to comply with.  

A note to new subsection 40D(2) directs the reader’s attention to Subdivision B, which contains limitations on the kinds of requirements that can be contained in employment pathway plans.

New subsection 40D(3) relates to optional terms and provides that a person’s employment pathway plan may contain, in addition to one or more requirements the person must comply with, one or more terms that the person may, but is not required to, comply with. This provision is equivalent to current subsections 501A(4B), 544B(1D), 606(1D) and 731M(2A) which relate to optional terms for plans for each of the participation payments. 

New subsection 40D(4) provides that the requirements in a person’s employment pathway plan are to be approved by the Employment Secretary. This provision is equivalent to subsections 501A(5), 544B(2), 606(2), and 731M(3) which require plans for each of the payments to be approved by the Secretary. It also makes clear that the requirements in a person’s plan under this section must not be approved by technological processes. Even if technological processes are used in relation to the plan, those processes cannot approve the content of the plan, and so there will always be a need for a human delegate to approve the content of a plan under this provision (that is plans developed by the Employment Secretary), taking into account all the matters that must currently be taken into account by delegates when approving a plan. 

New subsection 40D(5) provides that the Employment Secretary must not approve requirements that are not suitable for the person. This provision is very similar to current subsections 501A(1), 544B(1), 606(1), 731M(1), which requires plans to contain one or more requirements that the Secretary regards as suitable for a person. However, this new provision makes it clearer that plans cannot contain requirements which are unsuitable for a person, which is the basis on which the law has been administered in practice. 

 

New subsection 40D(5) provides that for the purpose of determining whether a requirement would not be suitable for a person the Employment Secretary must take into account the following matters:

·          employment pathway plan matters;

·          the person’s capacity to comply with the requirements;

·          the person’s needs;

·          any other matters that the Employment Secretary or the person considers relevant in the circumstances.

 

This provision is similar to current subsections 501A(6), 544B(3), 606(3) and 731M(4) which require consideration of a person’s needs and capacity to comply with requirements for the purpose of considering whether to approve requirements in a plan. This provision means that every matter which the Secretary, i.e. the Employment Secretary, must currently consider when determining employment pathway plan requirements will still need to be considered by the Employment Secretary, or in practice a delegate, when considering whether to approve requirements in a plan.   

A note to subsection 40D(5) directs the reader’s attention to section 40F, which contains the employment pathway plan matters.

Neither plans under section 40D nor plans under section 40E will need to be “in a form approved by the Secretary” which is currently a requirement under subsections 501(6), 544A(5), 605(4) and 731L(5). For many years the “form” has been a template, or a series of very similar templates for the use of job seekers in different employment programs, consisting in large part of empty spaces to be populated with information about the required or optional activities for a person.

The precise “form” of a plan is of no particular significance and does not contribute to the protection of the rights of job seekers. These provisions are therefore unnecessary and are being repealed. The department will continue to ensure that plans contain appropriate information about a person’s required and optional activities, and are accompanied by other information which may be useful to job seekers.  

New section 40E relates to streamlined processes for entering employment pathway plans. New subsection 40E(1) provides that a person enters into an employment pathway plan under this section if they have been given information as part of the technological processes referred to in subsection 40B(1) informing them of the matters they should consider in deciding whether to accept the plan, and if after deciding that they are satisfied with that plan the person accepts the plan as part of the technological processes, and if the plan produced by those processes contains one or more requirements that the person is required to comply with. 

The technological processes will provide job seekers with appropriate on-screen guidance about the matters they should consider in deciding whether to accept a plan. Such guidance could also include links to sites with further information or the telephone number of the contact centre.  

The range or type of requirements from which job seekers will be able to choose when they enter into their plan will be set by reference to guidelines developed by the department, not a computer. Those will be the same type of requirements which are currently included in job seekers’ plans.

These include, for example, requirements about seeking, accepting and undertaking paid work in Australia, except unsuitable paid work; training or study; voluntary work; participating in an approved program of work; attending an interview with an employment services provider; and developing, updating or improving resumes. These examples of requirements are referred to in new section 40G. 

The plan may also contain one or more optional terms that the person may, but is not required to, comply with, in common with plans entered into under new section 40D, and under current provisions.   

Note 1 to subsection 40E(1) makes clear that if a person does not want to accept an employment pathway plan that is produced by the technological processes referred to in section 40B, the person can enter an employment pathway plan in accordance with section 40D. 

Note 2 to section 40E directs the reader’s attention to Subdivision B, which contains limitations on the kind of requirements that can be contained in employment pathway plans. Whether plans are entered by streamlined processes or not, these limitations will apply. As is currently the case, plans will not be able to contain requirements about seeking or undertaking paid work which is unsuitable for the person. 

Nor will plans be able to include requirements of a kind which the Employment Secretary determines by legislative instrument that plans cannot contain - see the Social Security (Employment Pathway Plan Requirements) Determination 2015 (No.1)

This instrument currently precludes plans from containing requirements which would infringe discrimination or occupational health and safety laws; requirements involving crime, involuntary medical or psychological treatment, activities outside Australia, or work in the sex or adult entertainment industry; or requirements to do an activity where medical evidence indicates that it would aggravate an illness, disability or injury of the person, or in circumstances where “the Secretary considers that appropriate support or facilities to manage or take account of the illness, disability or injury would not be available.” 

Also, there will continue to be limitations on the circumstances in which a requirement to participate in an approved program of work can be included in a plan. 

Note 3 to section 40E indicates that section 40V relates to the variation of employment pathway plans. 

New subsection 40E(2) makes clear that this section does not prevent the person from entering into an employment pathway plan under section 40D after the person has entered into an employment pathway plan under this section.

New section 40F provides that the employment pathway plan matters in relation to a person are:

·          the person’s education, experience, skills and age;

·          the impact of any disability, illness, mental condition or physical condition of the person on the person’s ability to work, to look for work or to participate in training activities;

·          the state of the labour market and the transport or other options available to the person in accessing that market;

·          the participation opportunities available to the person;

·          the family and caring responsibilities of the person;

·          the length of travel time required to comply with requirements in an employment pathway plan;

·          the financial costs (such as travel costs) of complying with requirements in an employment pathway plan, and the person’s capacity to pay for such costs.

 

With one exception, these matters are the same as the matters mentioned in current subsections 501A(7), 544B(4), 606(4) and 731M(5) which list, for each participation payment, the matters which must be considered when having regard to a person’s capacity to comply with a plan. 

The exception is that this new provision does not refer to “any other matters” that the Employment Secretary or the person considers relevant in the circumstances. That is because such other matters must be considered as part of determining whether a requirement would not be suitable for a person due to section 40D(5). This is a technical change - any other matters considered relevant by either the person or the Employment Secretary will still need to be considered. 

New section 40G relates to examples of the kinds of requirements which could be included in an employment pathway plan. It applies to both traditional plans developed by the Employment Secretary, and to plans entered into via the streamlined processes. 

New subsection 40G(1) makes clear that an employment pathway plan may contain requirements relating to the person seeking, accepting offers of, and / or undertaking paid work in Australia, except particular paid work that is unsuitable to be done by the person.

This maintains the status quo in that such requirements are currently included in plans, and in that currently job seekers cannot be required to seek, accept or undertake paid work which is unsuitable for them - see current sections 502, 541D, 601 and 731B which contain provisions about what makes particular paid work unsuitable for a person in relation to each of the participation payments.

A note to subsection 40G(1) draws the reader’s attention to Division 2B, which relates to circumstances in which paid work is unsuitable to be done by a person.

New subsection 40G(2) provides that employment pathway plans may contain requirements relating to a person undertaking, participating in, attending or completing one or more of the following:

·          training or study;

·          voluntary work;

·          an approved program of work for income support payment or an employment program;

·          an interview with a person engaged by an organisation that performs services for the Commonwealth;

·          their resume, or making updates or improvements to their resume.

 

This provision therefore provides job seekers with clear information about the kinds of requirements which the law permits a plan to contain which may be of assistance to them compared to having to rely on other sources of information. 

 

Requirements about any of the above matters could only be included if consistent with other provisions relevant to the content of employment pathway plans. For example, requirements about participating in an approved program of work could only be included if that would be consistent with new section 40J. 

New subsection 40G(3) makes clear that an employment pathway plan may contain requirements relating to the person’s reporting of compliance with the plan. The social security law currently provides that job seekers may be required to provide information which is relevant to whether they are qualified for a payment or whether the payment is payable to them - see for example section 192 of the Administration Act. Information about a person’s compliance with an employment pathway plan is relevant for these purposes. The new provision makes the law about this requirement more accessible to job seekers because it is included with other provisions about plans. 

New subsection 40G(4) relates to Parenting Payment and provides that an employment pathway plan for a person to whom current paragraph 500(1)(ca) applies may contain requirements relating to the person’s education, the health of a PP child of the person, and / or to the education of a PP child of the person. This maintains the current law - see current subsection 500(1). 

New subsection 40G(5) makes clear that this section does not limit the requirements that the employment pathway plan may contain.

The note to subsection 40G(5) directs the reader’s attention to Subdivision B which contains limitations on the kinds of requirements which can be included in employment pathway plans.

 

Subdivision B - what employment pathway plans must not contain

 

New section 40H provides that an employment pathway plan in relation to a person cannot contain requirements about the person seeking, accepting offers of, and / or undertaking paid work in Australia if the requirement relates to particular paid work that is unsuitable to be done by the person. This is equivalent to current provisions - the current requirement to seek, accept and undertake paid work only relates to paid work that is not unsuitable, as noted above.  

The note to section 40H directs the reader’s attention to Division 2B which relates to the circumstances in which paid work is unsuitable to be done by a person.

New section 40J provides that, in certain circumstances, an employment pathway plan cannot contain a requirement to participate in an approved program of work. An approved program of work is a program which has been declared as such by the Employment Secretary under section 28 of the Social Security Act - for example Work for the Dole and the National Work Experience Program.      

For Parenting Payment, a plan cannot contain such a requirement if the person is receiving their payment at a reduced rate because they are in receipt of income, such as income from paid work, or is at least 50 and not a person to whom subsection 28(4) of the Social Security Act applies.

For Youth Allowance, a plan cannot contain such a requirement if the person is under 18, is undertaking full-time study, if the person is receiving their payment at a reduced rate because of one or more modules in the rate calculator in 1067G, or if the program of work requires the person to move home. 

For Jobseeker Payment, a plan cannot contain such a requirement if the person is receiving their payment at a reduced rate because of they are in receipt of income, such as income from paid work, or is at least 50 and not a person to whom subsection 28(4) of the Social Security Act applies.

For Special Benefit, a plan cannot contain such a requirement if the person is under 18, the person or their partner has income, or if the person is at least 50 and is not a person to whom subsection 28(4) of the Social Security Act applies. 

New section 40J is similar to current sections 501D, 544B(7), 607B and 731Q, except that it does not contain a paragraph to the effect that a person cannot be required to participate in an approved program of work if the Secretary considered that the work would aggravate a medical condition of the person or if the work would be unsafe, which is unnecessary. 

The paragraph is unnecessary because job seekers typically participate in an approved programs of work in accordance with a requirement in their employment pathway plan. Plans cannot contain requirements which are unsuitable for a person. Nor can they contain requirements of a kind that the Employment Secretary has determined by legislative instrument that plans cannot contain - see the Social Security (Employment Pathway Plan Requirements) Determination 2015 (No.1) . A program of work which aggravated a medical condition of the person or which was unsafe would be both unsuitable and of a kind that the instrument indicates plans cannot contain.

In any event, regardless of the above provisions and of whether job seekers participate in approved programs of work in accordance with a term of an employment pathway plan or not, it is a priority of the Commonwealth to ensure that they do not participate in such programs unless it is safe to do so.

New section 40K provides that an employment pathway plan must not contain a requirement of a kind that the Employment Secretary determines, by legislative instrument, that employment pathway plans must not contain. This provision is equivalent to current subsections 501A(4), 544B(1B), 606(1B) and 731M(1B) for each participation payment. 

 

Subdivision C Exemptions from employment pathway plan requirements

 

New section 40L is a new provision which relates to general circumstances where a person will not be required to satisfy employment pathway plan requirements. 

New subsection 40L(1) provides that a person is not required to satisfy the employment pathway plan requirements if a determination under this section is in effect in relation to the person.

New subsection 40L(2) provides that the Employment Secretary may determine that a person is not required to satisfy employment pathway plan requirements if satisfied that circumstances exist that are beyond the person’s control and that in those circumstances it would be unreasonable to expect the person to comply with those requirements. 

The intention of this subsection is to largely sum up the underlying rationale for exempting a person from their requirements, which is that whatever their exact circumstances may be, if the circumstances are beyond their control and it would be unreasonable to expect them to comply in those circumstances, then they should not be expected to comply. 

New section 40L safeguards job seekers’ rights to a greater extent than many of the current specific exemption provisions because it may apply when many of those specific provisions would clearly not apply. For example, it may apply whether or not the circumstances in question are “special”. 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 the circumstances be special. It thus provides greater protection to job seekers than current subsections 502F(1A), 542H(1AA), 603A(1A) and 731E(1A) which provide that a person will be exempt from participation requirements (in the case of Parenting Payment) or activity test requirements due to special circumstances beyond their control if in those circumstances it would be unreasonable to expect them to comply with their requirements. 

In addition to the proliferation of exemption provisions in the primary social security law, there are provisions in legislative instruments. The Social Security (Special Circumstances Exemption to Youth Allowance Activity Test Guidelines) Instrument 2019 , for example, sets out guidelines for the exercise of the Secretary’s power to determine whether special circumstances warranting an activity test exemption exist. There is no equivalent instrument for the other participation payments as there is no equivalent instrument making power. 

There is no real reason why there should be such an instrument in relation to Youth Allowance but not the other participation payments. There is also no strong reason why there should be such an instrument in relation to any of the payments given that the instrument lists circumstances which would likely be considered special circumstances anyway, such as death of a family member, domestic violence, an earthquake or other disaster, or a major personal crisis. The instrument does not stipulate that those circumstances must result in an exemption, only that they may result in an exemption, which would be the case even if the instrument did not exist.    

Other current provisions also do not apply unless the circumstances are special. For example, section 502C in relation to Parenting Payment provides for the possibility of an exemption if there are special circumstances relating to the persons family that make an exemption appropriate. Similarly, in relation to the other participation payments, sections 542F and 602B and 731DA allow for the possibility of an exemption where a person is the principal carer of one or more children and there are special circumstances relating to the person’s family.

Sections 502C, 542F, 602B, 731DA overlap in some respects with other provisions which also relate to exemptions for caring-related reasons. These include sections 502D, 542FA, 602C and 731DB which are each over three pages in length in more or less identical terms, but which are duplicated four times. These latter four provisions relate to an array of circumstances such as where a person is a carer for a disabled child, a foster carer, a home or distance educator, a carer for numerous children, or a carer of a child of whom they are not the parent. 

There are further provisions regarding exemptions for those who are carers of a child including, for Youth Allowance, Jobseeker Payment and Special Benefit, sections 541(1B), 603AB and 731GA respectively which provide that job seekers will be exempt from (or taken to be complying with) the activity test if they are principal carers of at least one child or have a partial capacity to work and engage in at least 30 hours per fortnight of paid work that the Secretary regards as suitable.

These provisions illustrate many of the problems with the current array of provisions relating to exemptions. These include: 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. 

New section 40L provides a more rational approach to exemptions because it is a short provision, applicable to all four payments without duplication, in relation to all mutual obligation requirements, and because it deals with the same subject matter in the same way while being flexible enough to properly take account of different circumstances according to the underlying principle that where circumstances exist that make it unreasonable to expect a person to comply with requirements they should not be expected to do so.   

Rather than having separate and different provisions for activity test exemptions compared with employment pathway plan exemptions, the consolidated exemption provisions will treat those requirements in the same way, reflecting that if a person has an exemption from the requirement to look for work it is reasonable for them to also be exempt from other requirements such as to undertake training or participate in an employment program.

This is the way the provisions are administered in practice. To make clear this intention, in addition to the insertion of new consolidated provisions, current section 603D which specifically permits some job seekers who are exempt from the requirement to look for work on medical grounds to be required to undertake other activities, disused in practice, is being repealed. 

This is not a case of consolidation and simplification at all costs. Even though section 40L would adequately safeguard job seekers’ rights on its own, it will not be the only provision providing scope for exemptions. To provide greater reassurance to job seekers who are genuinely unable to comply with their usual mutual obligation requirements, a number of the specific exemptions have been retained. They have been retained in consolidated form and not duplicated four times. In the consolidation of those provisions the degree of protection for job seekers has been fully retained.  

New subsection 40L(3) provides that the Employment Secretary may also determine that a person is not required to satisfy employment pathway plan requirements if satisfied in all the circumstances that the person should not be required to satisfy the employment pathway plan requirements.

This subsection is consistent with the underlying rationale for exemptions from requirements noted above. It recognises that sometimes circumstances may be within a person’s control, but it will still be appropriate to exempt them from employment pathway plan requirements. For example, a decision to end a relationship may be within a person’s control but the circumstance that their relationship has ended may warrant an exemption. 

New subsection 40L(4) provides that subsections 40L(2) and (3) do not apply to circumstances wholly or predominantly attributable to the person’s misuse of alcohol or another drug, unless the person is a declared program participant. 

Currently, declared program participants are participants in the Community Development Program. Subsection 28C(1) of the Social Security Act provides that the Secretary may make a determination by legislative instrument to specify an employment services program the participants in which are declared program participants. The Employment Secretary has made such an instrument in relation to the Community Development Program. 

New subsection 40L(4) is consistent with current provisions for job seekers which provide that a person is not exempt from the activity test due to misuse of alcohol or another drug unless the person is a declared program participant - see subsections 502F(1A), 542H(1AA), 603A(1A) and 731E(1A) regarding the special circumstances exemption, and sections 502H, 542A, 603C and 731K regarding the temporary incapacity exemption.

New subsection 40L(5) contains examples of circumstances in which the Employment Secretary would be able to determine that a person is not required to satisfy the employment pathway plan requirements. These relate to determinations under both subsection 40L(2) and 40L(3) as depending on the circumstances of an individual case the circumstances may or may not be within a person’s control. The examples are:

·          the person having a temporary incapacity resulting in the person being unable to undertake work for at least 8 hours per week, where medical evidence supports the incapacity being caused by a medical condition arising from sickness or an accident;

·          the person experiencing a marriage or relationship breakdown;

·          the death of an immediate family member of the person;

·          the person having suffered a significant personal crisis;

·          the person having been affected by an emergency or disaster or public health crisis.

 

The circumstances in which such a determination could be made are not limited to these examples. Other circumstances where a determination under this provision could be made include where a person is subject to domestic violence, is pregnant, or has recently given birth - whether or not the specific sections relating to domestic violence, pregnancy or childbirth mentioned below relate to the person. 

Further examples for this purpose include vandalism or burglary to the person’s home, homelessness, needing to arrange a funeral for a deceased family member, needing to care for an incapacitated family member, being required to serve on a jury, attending a training camp as a member of the Army, Navy or Air Force Reserves, being a refugee within the meaning of subsection 7(6B) of the Social Security Act and / or having a temporary protection, humanitarian or safe haven visa, or being subject to a community corrections order which requires the person to perform a substantial amount of community service each week, for example more than 20 hours each week. 

Circumstances which make it unreasonable to expect a person to comply with requirements may consist of a combination of circumstances. It is not the mere existence of a circumstance that will make this unreasonable, but the nature and extent of the effect of the circumstance(s), and the effect on the person that is relevant, although in many cases it would be obvious from the existence of a circumstances that an exemption would be warranted.

In relation to an emergency, disaster or public health crisis, such circumstances may be exceptional for the purpose of section 40T below. They are also mentioned here to recognise that where there are circumstances affecting a broad class or region some people will be more impacted than others. For example, a person whose home is destroyed by a disaster may experience a more significant impact than others in the same area whose homes were not destroyed. 

New subsection 40L(6) provides that the Employment Secretary may revoke a determination that a person is not required to satisfy the employment pathway plan requirements if satisfied in all the circumstances that is no longer appropriate for the determination to remain in effect.

New subsection 40L(7) provides that subsequent provisions relating to specific exemptions do not limit section 40L. 

New section 40M relates to a person being exempt from the employment pathway plan requirements in connection with the death of their partner. 

Currently, job seekers can receive an exemption from the activity test, or in the case of Parenting Payment from their participation requirements, following the death of their partner due to sections 502BA, 542EA, 602AA and 731DAA. When not required to satisfy the activity test due to these provisions, recipients of youth allowance, Jobseeker Payment and Special Benefit do not need to meet employment pathway plan requirements - see sections 544E, 607C and 731R. 

New section 40M provides for equivalent exemptions as contained in these current provisions. 

New subsection 40M(1) provides that a person is not required to satisfy the employment pathway plan requirements in respect of a period if the person makes a claim for a participation payment after the death of their partner and:

·          if the person was not pregnant when the person’s partner died—the person makes the claim in the period of 14 weeks starting on the day of the death of the partner; and

·          if the person was pregnant when the person’s partner died—the person makes the claim in the period of 14 weeks starting on the day of the death of the partner, or in the period starting on the day of the death of the partner and ending when the child is born or the person otherwise stops being pregnant, whichever ends later. 

 

New subsection 40M(2) provides that a person is not required to satisfy the employment pathway plan requirements in respect of a period if, while the person is receiving a participation payment their partner dies and:

·          if the person was not pregnant when the person’s partner died—the person notifies the Employment Secretary of the person’s partner’s death in the period of 14 weeks starting on the day of the death of the partner; and

·          if the person was pregnant when the person’s partner died—the person notifies the Employment Secretary of the person’s partner’s death in the period of 14 weeks from the day of the death of the partner or in the period from the day of death until the child is born or the person otherwise stops being pregnant, whichever ends later; and

·          the person is receiving the payment, allowance or benefit on the day of the notification.

 

New section 40N relates to an exemption from employment pathway plan requirements in connection with domestic violence. 

New subsection 40N(1) provides that a person is not required to satisfy the employment pathway plan requirements if a determination under section 40N is in effect in relation to the person.

New subsection 40N(2) provides that the Employment Secretary must make a determination that a person is not required to satisfy the employment pathway plan requirements if satisfied that the person was subjected to domestic violence in the 26 weeks before the making of the determination.

New subsection 40N(3) provides that the Employment Secretary may revoke a determination under this section in relation to a person if satisfied in all the circumstances that it is no longer appropriate for the determination to remain in effect.

Whether or not this section applies to a person, the person might receive an exemption in connection with domestic violence under section 40L. That means, for example, that a person could receive a domestic violence-related exemption even if the violence occurred more than 26 weeks before the determination is made, or is yet to occur but there is a risk of it occurring. 

Also, this specific provision is of broader application than current provisions which specifically relate to domestic violence. Those provisions are outlined below, but in contrast to those provisions, section 40N means that an exemption must be granted if there was domestic violence occurred in the past 26 weeks, whereas the current provisions provide that an exemption may be granted in that circumstance.  

Also, current domestic violence provisions require a person to not only have experienced domestic violence but also to be the principal carer of one or more children in order to obtain an exemption under those provisions, which is inappropriate. Section 40N rectifies that situation. In practice, a person suffering domestic violence could obtain an exemption under other current provisions, such as special circumstances provisions, but sections 40N and 40L provide clearer scope for exemptions in relation to domestic violence on the face of the law.  

                                               

Current exemption provisions specifically related to domestic violence

 

For Parenting Payment, current section 502C means that a person will be exempt from participation requirements for a period the Secretary determines if the Secretary is satisfied that in the 26 weeks before the making of the determination the person was subject to domestic violence. 

For Youth Allowance, Jobseeker Payment and Special Benefit, current sections 542F and 602B and 731DA mean that a person will be exempt from participation requirements for a period the Secretary determines if the Secretary is satisfied that the person is the principal carer of one or more children, and that in the 26 weeks before the making of the determination the person was subject to domestic violence.

For each payment, the period that the Secretary determines may be up to 16 weeks, which may be followed by one or more additional periods of up to 16 weeks, except that the first period must be 16 weeks if it relates to domestic violence. 

Due to current sections 544E, 607C, and 731R, if a person has an exemption under section 542F, 602B and 731DA respectively then they will not need to comply with employment pathway plan requirements during the period of that exemption. 

New section 40P relates to exemptions from employment pathway plan requirements where a person has caring responsibilities. 

Currently, job seekers in receipt of Parenting Payment can receive exemptions from their participation requirements due to caring responsibilities under section 502D. Job seekers on other participation payments can be exempted from the activity test due to caring responsibilities due to sections 542FA, 602C and 731DB. When they are exempt from the activity test on that basis, they do not need to comply with employment pathway plan requirements, due to sections 544E, 607C, and 731R.

This section requires or enables the Employment Secretary to grant exemptions from employment pathway plan requirements, including in respect of seeking or accepting paid work, in the same circumstances as current sections 502D, 542FA, 602C and 731DB.

New subsection 40P(1) provides a person is not required to satisfy the employment pathway plan requirements if there is a determination in effect under this section.

New paragraph 40P(2)(a) means that the Employment Secretary must make a determination under this section if satisfied that the person is a principal carer of one or more children and one or more of the following applies:

·          the person is a registered and active foster carer;

·          the person is a home educator of one or more of those children;

·          the person is a distance educator of one or more of those children;

·          under a family law order that the person is comply with, a child, of whom the person is a relative (other than a parent) is to live with the person.

 

New paragraph 40P(2)(b) means that the Employment Secretary must make a determination under this section if satisfied that the following apply:

·          the person is the principal carer of a child;

·          the person is the principal carer of one or more other children or the main supported of one or more secondary pupil children or both;

·          there are 4 or more of the children of whom the person is the principal carer or main supporter.

 

New paragraph 40P(2)(c) means that the Employment Secretary must make a determination under this section if satisfied that the following apply:

·          the person is not the principal carer of one or more a child;

·          the person is a registered and active foster carer; 

·          the person is providing foster care to a child temporarily in an emergency or to give respite to another person from caring for the child.

 

New paragraph 40P(2)(d) means that the Employment Secretary must make a determination under this section if satisfied that the following apply:

·          the person is the main supporter of one or more secondary pupil children; 

·          the person is a home educator or distance educator of one or more of those children.

New paragraph 40P(2)(e) means that the Employment Secretary must make a determination under this section if satisfied that the following apply:

·          the person is the principal carer of one or more children;

·          the person is a relative (other than a parent) of a child;

·          there is a document that provides for that child to live with the person for the care and wellbeing of that child and the document is prepared or accepted by an authority of a State or Territory that has responsibility for the wellbeing of children;

·          the person is acting in accordance with the document.

 

A series of notes accompany this subsection to draw the reader’s attention to relevant definitions in the Social Security Act. 

New subsection 40P(3) provides that the Employment Secretary may make a determination under this section in relation to the person if satisfied that the person is the principal carer of one or more children who suffer from a physical, intellectual or psychiatric disability or illness and whose care needs are such that the person should, for the period specified in the determination, not be required to satisfy the employment pathway plan requirements. A note to this subsection refers to the definition of principal carer in the Social Security Act. 

New subsection 40P(4) provides that the Employment Secretary may revoke a determination under this section in relation to a person if satisfied in all the circumstances that is no longer appropriate for the determination to remain in effect.

New section 40Q provides pre-natal and post-natal relief from the employment pathway plan requirements, including the requirement to actively seek, accept and undertake paid work except unsuitable paid work. Currently, sections 502G, 542D, 603AAA, and 731F provide pre-natal and post-natal relief from the activity test, but there is no current provision which specifically extends that relief to other employment pathway plan requirements. This section does so. 

The pre-natal relief starts 6 weeks before the expected date of confinement and ends on the day the child is born, whether or not the child is born alive.

The post-natal relief starts on the day the child is born, whether or not the child is born alive, and ends 6 weeks after that day. 

If the child is born alive, the parent may also not be required to satisfy the employment pathway plan requirements unless section 501(1)(c) or (ca) of the Social Security Act applies to the person.

New section 40R concerns exemptions from employment pathway plan requirements for job seekers who are over 55 years of age or who are principal carers of at least one child or who have a partial capacity to work.

Currently, a person in a receipt of Parenting Payment and who is at least 55 must be exempted from participation requirements if they are engaged in a certain amount of paid and / or voluntary work, due to section 502A. For Jobseeker Payment and Special Benefit, those who are at least 55 are exempt from the activity test on the same basis - see sections 603AA and 731G.

Also, currently, for Parenting Payment a person does not have participation requirements if they are engaged in paid work for at least 30 hours per fortnight that the Secretary regards as suitable - see section 502B. For Jobseeker Payment and Special Benefit, job seekers will be exempt from, or taken to be complying with, the activity test if they are principal carers of at least one child or have a partial capacity to work and engage in at least 30 hours per fortnight of paid work that the Secretary regards as suitable - see sections 541(1B), 603AB and 731GA  

This section provides an equivalent exemption as provided in sections 502A, 541(1B), 603AA and 731G which are applicable to each participation payment respectively.   

New subsection 40R(1) provides that someone who is 55 years or older is exempt from employment pathway plan requirements in respect of a 2 week period if, in that period, they do at least 30 hours of paid work or at least 30 hours of approved unpaid voluntary work for an approved organisation, or a combination of paid work and such voluntary work for at least 30 hours - unless they are under 60 and that 2 week period begins less than 12 months from when they started to receive Jobseeker Payment or Special Benefit and in that 2 week period the person either:

·          does for at least 30 hours a combination of approved unpaid voluntary work for an approved organisation and of paid work that is at least 15 hours in that period; or

·          does at least 30 hours of paid work. 

 

New subsection 40R(2) provides that an approved organisation, and approved unpaid voluntary work, is an organisation or work that has been approved by the Employment Secretary for the purposes of this section.

New subsection 40R(3) provides that those who are principal carers of at least one child or who have a partial capacity to work, and who are engaged in paid work for at least 30 hours in a 2 week period are exempt from employment pathway plan requirements for that period. 

Notes to this section draw the reader’s attention to the definitions of principal carer and partial capacity to work in the Social Security Act. 

New section 40S relates to Jobseeker Payment only. Subsection 40S(1) relates to persons who are undertaking a rehabilitation program to enhance their ability to work. Currently, section 602D of the Social Security Act provides that a person who is undertaking such a program is exempt from the activity test in certain circumstances for a certain period.  

New subsection 40S(1) means that in those circumstances a person would not only be exempt from the requirement to seek, accept and undertake paid work other than unsuitable paid work, but would also be exempt from employment pathway plan requirements. 

New subsection 40S(1) provides that a person is not required to satisfy the employment pathway plan requirements in respect of a period, referred to as the applicable period, if:

·          subparagraph 593(1)(a)(iii) applies in relation to the person; and

·          the person is undertaking a rehabilitation program; and

·          the program is intended to enhance the person’s ability to work; and

·          the length of the person’s participation in the program is, or is likely to be, at least 6 weeks; and

·          the person’s participation in the program is, or is likely to, end within the period of 208 weeks after the Jobseeker Payment commenced to be payable to the person.

 

The applicable period is the period the person is undertaking the rehabilitation program or for such shorter or longer period determined by the Employment Secretary.

New subsection 40S(2) relates to the ABSTUDY Scheme. Currently, section 602A of the Social Security Act provides that if Jobseeker Payment is payable to a person because of current subsection 614(6) and the person has commenced the full-time course of education referred to in paragraph 614(6)(a) then the person is taken to satisfy the activity test in respect of the period during which the payment is payable to the person because of subsection 614(6). 

New subsection 40S(2) provides that in those circumstances a person would not be required to satisfy the employment pathway plan requirements in respect of that period. Subsection 40S(2) would therefore be equivalent to current section 602A, except that it broadens the exemption which would apply to the person, in that the exemption would apply in respect of all employment pathway plan requirements, not merely a requirement to seek, accept and undertake paid work other than unsuitable paid work.  

New section 40T is a new exemption provision for which there is no current equivalent and relates to exceptional circumstances in which classes of people will not be required to satisfy the employment pathway plan requirements if a determination to that effect is made. This provision will enable more agile, flexible and tailored responses to exceptional circumstances that would make it unnecessary or inappropriate to require a class or classes of people affected by those circumstances to satisfy the employment pathway plan requirements.   

New subsection 40T(1) provides that a person is not required to satisfy the employment pathway plan requirements if the person is included in a class of persons specified in a determination under this section that is in effect.

New subsection 40T(2) provides that the Employment Secretary may make a determination under this section specifying a class of persons for the purposes of subsection (1).

New subsection 40T(3) provides that the Employment Secretary may make the determination only if the Employment Secretary is satisfied that exceptional circumstances exist to justify making the determination.

New subsection 40T(4) provides that without limiting subsection (3), the exceptional circumstances may be that there is an emergency, disaster or public health crisis affecting Australia or one or more parts of Australia. For this purpose, examples of emergencies, disasters or public health crises include, without limitation, bushfires, floods, cyclones, pandemics and epidemics. 

Other exceptional circumstances might include, for example and without limitation, the staging of an Olympic Games in an area. To be exceptional the circumstances do not need to be unique, unprecedented or extreme, but rather out of the ordinary - not out of the ordinary to the utmost degree. 

New subsection 40T(5) provides that the Employment Secretary must cause details of the class of persons and of the exceptional circumstances to be published on the Employment Department’s website. In practice this would be done anyway so that job seekers can know whether or not they need to meet requirements. 

New subsection 40T(6) provides that the Employment Secretary may revoke a determination under this section if the Employment Secretary is satisfied in all the circumstances that is no longer appropriate for the determination to remain in effect.

New subsection 40T(7) provides that the Employment Secretary must cause details of the revocation to be published on the Employment Department’s website.

New section 40U contains general rules in relation to determinations under Subdivision C.

New subsection 40U(1) provides that a determination under this Subdivision may specify the period during which the determination has effect. 

New subsection 40U(2) provides that a determination under this Subdivision may be expressed to take effect on a day that is earlier than the day on which the determination is made.

New subsection 40U(3) provides that a revocation of a determination under this Subdivision takes effect on the day specified in the revocation, which must not be earlier than the day the revocation is made.

More than one determination relating to the same circumstance may be made. For example, if a determination specifies the period during which it has effect and that period has expired or is about to expire but the circumstance warranting the determination is ongoing, then another determination could be made. 

New subsection 40T(4) provides that a determination under this Subdivision, or a revocation of such a determination, is not a legislative instrument . Generally, this provision is merely declaratory of the law and does not prescribe a substantive exemption from the requirements of the Legislation Act. It is intended to assist the reader to understand that generally the determinations are administrative in nature and is not a legislative instrument within the meaning of subsection 8(4) of the Legislation Act.

Insofar as subsection 40T(4) may amount to a substantive exemption from the requirements of the Legislation Act in relation to a determination under section 40T, the following information is relevant. 

In late 2019 and early 2020 over 100 bushfires directly impacted over a dozen areas of Australia and many more areas were significantly impacted by smoke from the fires, with an associated need for many people in many areas to either stay at home, or seek refuge elsewhere. In such circumstances it would not be appropriate to require job seekers in affected areas to meet mutual obligation requirements.

The fires in early 2020 coincided with the first cases of COVID-19 in Australia. Since then the risks presented by COVID-19 meant that at times it was not appropriate to require job seekers to meet mutual obligation requirements. From time to time, other emergency circumstances, for example floods or cyclones, may also mean that job seekers in some areas should not be expected to meet mutual obligation requirements for a period.     

Typically, it will be impossible to predict in advance the location, duration or extent of emergency situations and, once emergencies occur, they will often evolve unpredictably in many areas simultaneously. In such circumstances there is a need for job seekers to receive timely information in advance as to whether they will need to meet mutual obligation requirements. 

There is therefore a need to avoid delays which would be caused by a requirement to draft and register potentially a large number of legislative instruments with accompanying explanatory statements before an exemption could take effect in all required areas, and then a requirement to repeatedly make new or amended instruments to expand or vary the class(es) of persons to whom the exemption(s) is/are applicable.  

Accordingly, determinations under this section are not legislative instruments. This will enable agile, flexible and tailored responses to emergencies.

The determinations will still need to be made in accordance with usual provisions of the social security law, such as current section 236 of the Administration Act, which requires decisions under the social security law to be in writing, which can include recording the decision by computer. Details of the classes of persons and the exceptional circumstances will be required to be published on the department’s website, as would occur in practice anyway, as noted above. As such, making the instrument a notifiable instrument would not materially add to its accessibility. 

New section 40V relates to variation, cancellation and review of a person’s employment pathway plan.

New subsection 40V(1) provides that the Employment Secretary may vary an employment pathway plan that is in force under Subdivision A in relation to a person after discussion with the person and after taking into account the matters mentioned in paragraphs 40D(5)(a), (b), (c) and (d).

This means that regardless of whether the plan is one entered using the streamlined processes or developed by the Employment Secretary, it can only be varied by the Employment Secretary or delegate after discussion with the person, and only after taking into account the person’s circumstances, their needs, their capacity to comply with the plan, and any other matter the person or delegate considers relevant. Also, the internal review of a decision by the Employment Secretary or delegate about the content of a streamlined plan would therefore need to take account of the person’s needs, circumstances, capacity to comply and any other matters considered relevant, as would review of such a decision by the Administrative Appeals Tribunal or a court. 

New subsection 40V(2) provides that the Employment Secretary may vary the plan on the Employment Secretary’s own initiative or on request of the person.

New subsection 40V(3) provides that if the person requests a variation of the plan, the Employment Secretary must either make a decision under subsection (1) to vary the plan, or make a decision to refuse to vary the plan. 

New subsection 40V(4) provides that the Employment Secretary must notify the person of the variation or of the decision to refuse to vary the plan.

New subsection 40V(5) provides that if an employment pathway plan is in force in relation to a person, that person may vary the plan in accordance with the processes referred to in subsection 40B(1). This means that a person will be able to not only enter a plan using the streamlined processes, but also vary the plan themselves. 

New subsection 40V(6) provides that the Employment Secretary must cancel an employment pathway plan that is in force under Subdivision A in relation to a person if the person enters into another employment pathway plan. This means, for example, that if a person enters into a plan using the streamlined processes and then enters a plan approved by a human delegate instead, the plan entered via the streamlined processes must be cancelled.

New subsection 40V(7) provides that the Employment Secretary may review an employment pathway plan that is in force under Subdivision A in relation to a person.

New subsection 40V(8) provides that the Employment Secretary may review the plan on the Employment Secretary’s own initiative or on request of the person.

New section 40V is similar to current subsections 501A(8), 544B(5), 606(5) and 731M(6) and also makes provision for a person to vary their own plan if satisfied with the variation to it. It refers to discussion with the Employment Secretary instead of negotiation, and does not include the concept of “suspension” of a plan, which is unnecessary - if it is not appropriate for a person to comply with their plan then it can be cancelled or varied, or they may be exempted from compliance.

New section 40W provides that if an employment pathway plan is in force in relation to a person then they must notify the Employment Secretary of any circumstances preventing the person from complying with the plan, or reducing their capacity to do so. 

This provision is equivalent to subsections 501A(9), 544B(6), 606(6) or 731M(7) except that it refers to circumstances preventing or reducing capacity comply, rather than preventing or affecting capacity, to make clear that a person need not provide notification of circumstances which increase their capacity to comply. This will mean that the provision more clearly reflects the way in which it is currently administered.    

New section 40X lists circumstances in which particular paid work will be unsuitable to be done by a person. New subsection 40X(1) lists the same circumstances as are currently listed in a series of paragraphs in subsections 502(4), 541D(1), 601(2A) and 731B(1). 

In summary, work will be unsuitable for a person if they cannot do it because of a lack of training and no training will be provided, it would aggravate a medical condition of the person, they lack access to appropriate care and supervision for one or more children they principally care for at times they would be required to do the work, the work is unsafe, remuneration would be less generous than applicable statutory conditions, commuting to and from the work would be unreasonably difficult, they would have to move home to do the work, or for “any other reason”. 

Compared with current provisions, the paragraph about lack of childcare and supervision has been slightly amended to provide that work will be unsuitable if a person lacks appropriate childcare during reasonable amounts of time that would be needed for the person to travel to and from their home and the place of work. This is a technical change as subsection 601(2AAB) for Jobseeker Payment and the equivalents for the other payments currently provide that if a person lacks appropriate childcare during the periods they need to travel to or from the work and their home then the work will be unsuitable for them.  

This section does not include a provision in the same terms as current subsection 601(2AAA) in relation to Jobseeker Payment and its equivalents for the other participation payments, which relate to what constitutes access to appropriate care and supervision for a child. These provisions add little or nothing to the ordinary meaning of the paragraph about what amounts to access to appropriate care and supervision for a child, and are not needed. Their repeal will have no material impact on the rights of job seekers.  

New subsections 40X(2) and (3) are equivalent to current subsections 601(2AA) and (2AB) in relation to Jobseeker Payment and their equivalents for the other participation payments. 

New subsections 40X(4) and (5) are equivalent to current subsections 601(2AC) and (2AD) in relation to Jobseeker Payment and their equivalents for the other participation payments, except for one difference now outlined. 

Current subsection 601(2AC) and its equivalents require the Secretary to make a legislative instrument about what the Secretary must take into account in deciding whether there is “any other reason” for which particular paid work is unsuitable for a person. Current subsection 601(2AD) and equivalents provide that this instrument does not limit the matters which the Secretary may take into account for this purpose. 

New subsections 40X(4) and (5) are expressed in the same terms except that the instrument the Employment Secretary must make will be about what must be taken into account, not what the Secretary must take into account. This reflects that job seekers who use technological processes to enter employment pathway plans in accordance with section 40E will make their own decisions, within the parameters of the processes, about what requirements they may which to accept.   

New subsection 40X(6) has no current equivalent in the Social Security Act but is consistent with decisions of courts and tribunals about when a person may be required to accept paid work. It makes clear that paid work is not unsuitable to be done by a person merely because it is not their preferred type of work, not commensurate with their highest educational attainment or qualification, or not paid at their preferred rate.

At times a person with significant qualifications, or who considers that their skills warrant greater pay than that offered to them, will need to accept work that is not their preferred work or pays a lower wage than they would prefer, rather than continue to be supported by the taxpayer. This is consistent with longstanding practice and policy that job seekers must do all that they are able to support themselves through paid work.

This does not preclude the possibility that their non-preferred work may be unsuitable for them for any of the range of other reasons for which work may be unsuitable for a person. This section does not substantively change the law but makes it more accessible so that job seekers are more able to understand their obligations and therefore comply with them. 

Amendment s to Divisions 3AA and 3A of Part 3 of the Administration Act (items 124 to 141)

Division 3A of Part 3 of the Administration Act sets out the compliance framework for recipients of participation payments who declared program participants - i.e. participating in the Community Development Program. Items 131 to 141 of Schedule 1 make minor amendments to Division 3A to align its language with the new terminology mentioned below, or to change references to other provisions that have been amended or repealed.

Most of the amendments to Divisions 3AA and 3A of Part 3 - those made by items 124, 125, 127, 128, 130, 131, 135, 136, 137, 138, 139 and 140 - are to replace references in the Division to “employment” or “un/suitable employment” with reference to “paid work” or “paid work (except paid work that is unsuitable)”. 

This will ensure that there is greater consistency in the language in the Social Security Act and the Administration Act to refer to the concept of the work that a claimant for, or recipient of, a participation payment must be willing to accept in order to qualify for the payment. The term is also used in the employment pathway plans provisions in relation to requirements that can and cannot be included in employment pathway plans (see e.g. sections 40G and 40H).

While the concept of paid work itself is undefined, and will have its ordinary meaning, new section 40X of the Administration Act sets out circumstances in which paid work is unsuitable for the purposes of the social security law.

It is appropriate for language to be more consistent so that job seekers can more easily understand their obligations. For example, section 42AD of the Administration Act relates to “work refusal failures” arising from failure to accept an offer of suitable “employment”. The longstanding requirement in what is currently known as the activity test is to seek and undertake “paid work”, except unsuitable paid work. The only proper interpretation of the reference to “employment” in section 42AD is that it means paid work, and that is the basis on which it is administered. No change to the law is intended by this amendment - simply greater clarity. 

Other amendments to the Administration Act (items 119 to 122 and 142 to 153)

Items 119 to 122 amend section 37 of the Administration Act to remove reference to provisions of the Social Security Act that are being repealed.

Similarly, items 142, 143, 144, 148, 150, 151, 152, and 153 amend or repeal other provisions of the Administration Act that refer to provisions of the Social Security Act and Administration Act that are also being amended or repealed.

Section 140A of the Administration Act currently defines employment pathway plan decision and section 525B decision for the purposes of the social security law. These terms are used in Part 4A of the Administration Act (Review by the AAT).

Employment pathway plan decision is currently defined by reference to decisions under provisions that are being repealed by Schedule 1.

Consequently, item 145 will repeal and replace section 140A, which will provide for a new definition of employment pathway plan decision by reference to decisions of the Employment Secretary under the new Division 2A of Part 3 of the Administration Act inserted by item 123. Employment pathway plan decision is defined as a decision by the Employment Secretary to:

·          notify a person of the requirement to enter into an employment pathway plan where the notification does not give the person the option of using the streamlined processes to do so;

·          approve the requirements in an employment pathway plan;

·          vary an employment pathway plan;

·          refuse to vary an employment pathway plan.

 

Section 525B decisions are decisions made under the former section 525B of the Social Security Act, which was repealed by the Social Security and Veterans’ Affairs Legislation Amendment Act 1995 in 1996; the definition is redundant. Because of that, there is no need to include the definition in the new section 140A.

Items 146 and 149 are consequential amendments.

Item 147 inserts a definition of employment pathway plan matters into Schedule 1 of the Administration Act, which contains a dictionary of terms used in the social security law. The definition indicates that this term has the meaning given by section 40F.

Item 148 amends paragraph (c) of the definition of participation payment in subclause 1(1) of Schedule 1 to the Administration Act, which refers to Parenting Payment as a kind of participation payment for a person who is “subject to participation requirements”. Those requirements are replaced by requirements in new paragraphs 500(1)(c) and (ca) (see item 18).

Item 150 repeals subclause 4A(5) of Schedule 2 of the Administration Act and substitutes a new subclause 4A(5) which provides that despite subclause 4A(4), if the person does not comply with a requirement in a notice under section 63 of the Administration Act the person’s start day is the day on which the person complies with that requirement, or with any requirements the Secretary has required the person to undertake in place of that requirement, unless the Secretary determines an earlier day, in which case their start day will be that earlier day. 

Item 151 repeals paragraph 5(2)(e) of Schedule 2 of the Administration Act, which relates to the definition of exclusion period.

Application and transitional provisions (items 152 to 160)

Item 152 is a general application provision that provides that the amendments made by Schedule 1 to the Bill, and the provisions as amended by Schedule 1 to the Bill, apply prospectively from the commencement of the item.

Further, subitems 152(2) and (3) provide that a person who was not qualified for disability support pension because of the operation of subsection 94(6) or 95(2) (i.e. they brought about their permanent inability to work or blindness with a view to obtaining an exemption from an activity test for Jobseeker Payment or Youth Allowance) prior to commencement of the item continues to be not qualified for disability support pension on that basis, notwithstanding the amendments to those subsections by items 15 and 16.

Item 153 is an application and transitional provision which relates to the start day amendments by the Bill. Subitem 153(1) provides that the amendment of clauses 4A and 5 of Schedule 2 to the Administration Act apply prospectively from the commencement of the item. 

Further, subitem 153(2) provides that if a notice referred to in subclause 41(1) of Schedule 2 to the Administration Act was given to a person before commencement, then sections 547AA or 615 of the Social Security Act and clauses 4A and 5 of Schedule 2 of the Administration Act, as in force immediately before the commencement, continue to apply on and after commencement of the item notwithstanding the repeal or amendment of those provisions. 

Item 154 provides that the provisions relating to the approved program of work supplement that are replaced by items 67, 81 and 88 apply for the purposes of working out a person’s rate of Youth Allowance, Jobseeker Payment or Special Benefit in the fortnight that the item commences, and each later fortnight. The previous versions of those provisions continue to apply for the purposes of working out a person’s rate of Youth Allowance, Jobseeker Payment or Special Benefit for earlier fortnights.

Item 155 is a savings provision that ensures that a person’s employment pathway plan that was being administered immediately prior to the commencement of the item - whether the plan was a Parenting Payment Employment Pathway Plan, a Youth Allowance Employment Pathway Plan, a Jobseeker Employment Pathway Plan or a Special Benefit Employment Pathway Plan - continues in effect on and after commencement of the item as if it was an employment pathway plan in force in relation to a person, thus ensuring continuity of plans.

Item 156 is a transitional provision that generally transitions people’s existing exemptions from the activity test (or participation requirements for Parenting Payment) into exemptions from the employment pathway plan requirements under the relevant provision in Subdivision C of Division 2A of Part 3 of the Administration Act.

Where an existing exemption from the activity test is limited to a particular period under the current social security law, item 156 generally provides that the equivalent exemption from the employment pathway plan requirements is also limited to that period. However, there are some existing exemptions from the activity test that are limited to a particular period, but the equivalent exemptions from the employment pathway requirements are not so limited - in which case, the exemption from the employment pathway plan requirements ends in accordance with the new provisions.

For example, subitem 156(3) provides that a domestic violence exemption from the activity test - which is time-limited under current provisions - transitions to a domestic violence exemption from the employment pathway plan requirement, but it does not end when it would have ended under the old provisions. Rather, it continues until revoked in accordance with the new domestic violence exemption provision (subsection 40N(3)). Similarly, subitem 156(4) provides that the caring responsibilities exemption from the activity test transitions to a caring responsibilities exemption from the employment pathway plan requirements, but the latter continues in force until revoked in accordance with the new caring responsibilities exemption provision (subsection 40P(4)).

Subitem 156(5) provides that the new pre- and post-natal exemption from the employment pathway plan requirements - which starts 6 weeks before the expected date of confinement for the birth and ends 6 weeks after birth (see section 40Q) - applies to births occurring before, on or after commencement of the item.

Subitems 156(6), (7) and (8) provide for the transition of the 30-hours-per-fortnight work exemption from the activity test. Importantly, the effect of paragraph (6)(b) and subitem (7) is that if a person undertakes the required hours of work across a fortnight that spans the commencement of the new provisions, the person can take advantage of the exemption from the employment pathway plan requirements for the part of the fortnight that occurs after commencement, and is also taken to have met the activity test for that part of the fortnight that precedes commencement.

Subitem 156(9) ensures that women born on or before 1 July 1955 are not disadvantaged by the repeal of section 603AC of the Social Security Act. This provision relates to an exemption from the activity test for certain women with no recent workforce experience, all of whom will either have already reached their age pension age or, if not, will do so by 1 January 2022.

To the limited extent that there are women in receipt of job seeker payment born on or before 1 July 1955 who have not already reached their age pension age, this subitem ensures that they will not be disadvantaged by the repeal of section 603AC in the event that the repeal takes effect before 1 January 2022.

Item 157 provides for the continuation of any exemptions that a person might have from the activity test for youth allowance (student) (i.e. exemptions from the requirement to undertake full-time study), but subject to the provisions relating to those exemptions as in force after commencement.

Item 158 deals with the impact of the amendments in Schedule 1 on various participation payment compliance failures. Broadly, a failure that occurred before commencement continues to be a failure after commencement, and amendments to relevant provisions apply from when they commence, not retrospectively. 

Item 159 is a straightforward transitional provision that provide that section 140A of the Administration Act as in force before commencement continues to apply after commencement to employment pathway plan decisions, as defined in that section before commencement, that occurred before commencement.

Item 160 authorises the Minister to make transitional rules by legislative instrument, that relate to the amendments or repeals made by Schedule 1. Subitem (2) places general limits on such transitional rules, including that they may not directly amend the text of the Schedule (i.e. cannot operate as a so-called “Henry VIII clause”).

This item is a residual power that is intended only to be exercised in the event that an error or omission is identified in the operation of the amendments made by Schedule 1 and the transitional provisions in items 152 to 159.

The amendments made by Schedule 1 are not intended to alter policy or change the substantive operation of the social security law except to the limited extent expressly identified above. Nevertheless, the amendments are extensive and interdependent - simplification of a body of law as complex as the social security law is not itself a simple or straightforward task; an analogy may be untying a particularly large and complicated knot and then re-tying the thread in a simpler way. In that light, it is possible that the transitional provisions do not operate as intended or cover a particular set of circumstances; a situation may arise some time down the track that was not apparent at the time of preparation of the Bill.

Naturally, any rules that might be made under item 160 will be subject to Parliamentary scrutiny, including disallowance, in the usual way. Further, as they are limited to dealing with matters of a transitional nature and cannot amend the text of the amendments in Schedule 1, any substantive change to the social security law that is required as a result of the amendments made by Schedule 1 will need to be given effect through an Act of Parliament.



 

Schedule 2—Arrangements and grants relating to assisting persons to obtain and maintain paid work

Social Security Act 1991

Social Security (Administration) Act 1999

Currently, the Australian Government delivers numerous employment programs designed to assist unemployed people, under-employed people and people who are at risk of losing their jobs, to find and keep paid work, or more paid work.

These include jobactive, New Enterprise Incentive Scheme, Extended New Enterprise Incentive Scheme - COVID-19 Response, Relocation Assistance to Take Up a Job, ParentsNext, Youth Jobs PaTH, PaTH Business Placement Partnerships, National Work Experience Programme, National Wage Subsidy Pool, Harvest Labour Services and National Harvest Labour Information Service, Harvest Trail Service - Collaborating With Industry, Empowering YOUth Initiatives, and Encouraging Entrepreneurship. 

The legislative authority for expenditure on these programs is provided by section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FFSP Act) through items in Schedules to the Financial Framework ( Supplementary Powers) Regulations 1997 (FFSP Regulations). The FFSP Act and Regulations provide general expenditure authority for programs across the Commonwealth that are not otherwise specifically authorised in portfolio legislation. The FFSP Act and Regulations are the responsibility of the Minister for Finance and are administered by the Department of Finance.

For reasons outlined below, it is more appropriate for authority for expenditure on programs to assist unemployed persons to be specifically included in legislation relating to unemployment assistance - that is, the social security law - than to rely on a general expenditure authority in the FFSP Act. 

Placing legislative authority for Commonwealth expenditure on employment programs in portfolio legislation administered by the Minister and department responsible for employment policy and programs will enhance transparency and accountability for that expenditure. This will also make the source of the authority more accessible to members of the public instead of requiring them to access items in regulations which most will not have heard of.

Placing the legislative authority for programs to help people find and keep paid work in the social security law resembles the approach taken in the recent Future Drought Fund Act 2019 which authorises spending on a series of matters - projects, services, technology, research or advice - which are directed towards achieving drought resilience. 

The provisions in this Schedule are largely modelled on the relevant provisions in that Act. This Schedule provides transparent authority for programs helping people become more resilient to barriers they face in obtaining and maintaining paid work, and to the many adverse consequences of a lack of sustainable paid work. 

Job seekers are among the most vulnerable in society and providing legislative authority for programs which address their needs in primary legislation rather than in regulations better reflects the cardinal importance of addressing those needs.    

The various programs help job seekers including those who are parents returning to the workforce, Indigenous people, people with a disability, young or mature-aged people, or those who are about to lose their jobs or who have recently been made redundant. 

On the surface it may seem that these are disparate groups but they are all united by their shared characteristic of being working age people with capacity to work in the present or the near future. Whatever their exact circumstances they share the need to find and keep paid work or more paid work either as an employee or via their own business. 

Delivery of the programs typically revolves around employment services providers, peak employer groups or contractors engaged for programs which then work with employment services providers. 

While there is some tailoring of programs, the benefits or services delivered generally involve training or mentoring to improve the skills and confidence of job seekers, connecting job seekers with businesses or vice versa, provision of information about job opportunities, assistance with resumes and interview preparation, and / or wage subsidies. 

There is now a proliferation of FFSP Regulation items to support spending for these programs - there are dozens of such items repetitively written in very similar terms and mixed with items for unrelated Commonwealth programs.

Authority in the social security law does better justice to the importance of addressing the needs of job seekers. The adverse consequences of no paid work or not enough paid work are well known and can be devastating. Factory closures and other labour market impacts can happen without much warning and on such occasions swift action is required to help job seekers obtain and maintain paid work. 

The new provisions will prevent vulnerable job seekers being made to wait for employment program assistance while public servants arrange new legislative authority, which has been arranged for similar programs in regulation items on dozens of past occasions.

In this context, even short delays for technical or administrative reasons could adversely impact vulnerable job seekers. They should not be kept waiting while public servants arrange a regulation item almost exactly the same as numerous previous items when an obvious alternative is available - namely the inclusion of specific provisions in the social security law, which is the law designed to not only support job seekers but to help them into paid work. 

Accordingly, item 2 of Schedule 2 to the Bill will insert a new Chapter 2D into the Social Security Act. The new Chapter will provide authority for the Employment Secretary to make, vary or administer arrangements for the making of payments by the Commonwealth, or make, vary or administer grants of financial assistance, for the purposes set out in the new subsection 1062A(1). 

Those purposes are the same as those of the programs repeatedly authorised by the FFSP Regulation items. While drafted as an (a) to (m) list of paragraphs in item 1062A(1), the purposes can largely be summed up by the single purpose of helping those without paid work or enough paid work, or who are at imminent risk of losing their paid work, to find and obtain paid work, or more sustainable paid work. That is apparent from the very repetitive language of most of the paragraphs.

The new provisions are therefore a summation of dozens of repetitive FFSP Regulation items in recent years, the instruments for which have never been disallowed by Parliament. They will only authorise spending for the same type of programs to which the FFSP Regulation items relate and their scope is further constrained by the constitutional limitations listed in section 1062B. As also noted below, the new provisions make clear that funding for the programs cannot come from the standing appropriation in the social security law and so will need to be sourced from other appropriations, typically annual appropriations, in the usual way.   

To the extent that paragraphs 1062A(1)(a) to (k) do not clearly or fully apply to a particular employment program, the Employment Minister will be able to specify additional programs by legislative instrument (see paragraph 1062A(1)(l) and subsection 1062A(2)).

Such an instrument could not be about any program but would be confined to programs consistent with the context in which the instrument making power appears. For example, the instrument making power could be used to authorise a program concerning voluntary work of some sort. Even in such a case, the rationale for the program would not be voluntary work for its own sake, but as a step along the path to obtaining or maintaining paid work.

Further, any such instrument will be subject to the usual processes of Parliamentary scrutiny, including assessment against human rights in accordance with the Human Right (Parliamentary Scrutiny) Act 2011 and disallowance in accordance with Part 2 of Chapter 3 of the Legislation Act 2003 .

It is also important to note that all that the new Chapter 2D does is provide statutory authority for expenditure on employment programs as an alternative to the existing statutory authorities for such programs, such as section 32B of the FFSP Act. All of the usual processes and requirements for the establishment and oversight of such programs will remain unchanged.

For example, if a program involves procurement of goods or services, it will be subject to Commonwealth procurement framework, including the Commonwealth Procurement Rules and the Government Procurement (Judicial Review) Act 2018 . If a program involves grants, it will be subject to the Commonwealth grants framework, including the Commonwealth Grants Rules and Guidelines. Joint employment initiatives of the Commonwealth and a State or Territory, or States and Territories generally, will be subject to the processes for developing such initiatives under the auspices of the Council on Federal Financial Relations (see www.federalfinancialrelations.gov.au ).

Funding for employment programs under Chapter 2D will not be supported by the standing appropriation in the social security law (see items 4 and 5). Instead, it will need to come from annual appropriations in the usual way. 

Government decisions in relation to these programs will therefore be subject to Budget processes, and be published in the Employment Department’s portfolio budget papers. Parliament will continue to be able to scrutinise expenditure on, and the operation of, these employment programs through all of the usual mechanisms available to it, including the Senate Estimates process.

Section 1062B sets out the Constitutional basis for payments and grants under arrangements entered into by the Secretary. These are the Constitutional heads of power usually engaged by the Commonwealth in support of its employment programs, including:

·          the social welfare power (s 51(xxiiiA)), which includes the provision of unemployment benefits or other benefits, allowances, services or endowment;

·          the treaty implementation aspect of the external affairs power (s 51(xxix)), insofar as it relates to implementing treaties in relation to unemployed persons, provision of employment services and vocational education and training, and addressing employment disadvantage;

·          the communications power (s 51(v)), which is particularly relevant to the delivery of programs online;

·          the aliens power (s 51(xix)), which is relevant to the employment services for non-citizens, particularly newly arrived immigrants;

·          the races power (s 51(xxvi)), which is relevant to employment services for Indigenous people;

·          grants of financial assistance to State (s 96) and Territory (s 122) governments to deliver, or assist in delivering, employment programs in their jurisdictions; and

·          the Commonwealth’s implied nationhood power, which is relevant to employment measures in response to issues of national significance.

In connection with the races power, “Indigenous” has the same meaning as in the Indigenous Education (Targeted Assistance) Act 2000 . To the extent, if any, an employment program which benefits Indigenous Australians is not supported by other powers the inclusion of this power in the list is consistent with the extra constitutional support which may be available for an employment program which benefits Indigenous Australians. 

Section 1062C provides that Chapter 2D does not limit the executive power of the Commonwealth.

Section 1062D provides that the Employment Department’s annual report needs to include information about the number of arrangements and grants made, and the total amounts paid under those arrangements. 

This will provide additional transparency about the expenditure on employment programs authorised under the new provisions, although expenditure on such programs is already freely available and published in the Employment Portfolio Budget Statements (including Additional and Supplementary statements) a number of times a year. 

Also, the Employment Department widely and routinely publicises the nature and extent of assistance available under employment programs to promote the programs to potential participants, employers and other stakeholders. Further, the Social Security Act, in which the authority will be contained, is much better known that the FFSP Regulations.  

Item 1 amends subsection 23(1) of the Social Security Act, to provide that the Employment Minister is the Minister who administers Division 3AA of Part 3 of the Administration Act. This is consistent with the definition of Employment Secretary inserted by item 9 of Schedule 1.

Item 2 inserts a new Chapter 2D into the Social Security Act as noted above.

Item 3 renumbers the existing 1062 in the Social Security Act as section 1062E, in order to simplify the numbering of the new provisions in Chapter 2D of that Act.

Items 4 and 5 amend section 242 of the Administration Act to provide that the standing appropriation for payments under the social security law does not apply to payment of an amount under an arrangement or grant referred to in section 1062A of the Social Security Act. That is, funding for employment programs established under the new Chapter 2D of the Social Security Act will need to be sourced from annual appropriations in the usual way.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Schedule 3—Compliance with participation payment requirements

Social Security (Administration) Act 1999

Schedule 3 to the Bill amends Division 3AA of Part 3 of the Administration Act, which sets out the targeted compliance framework (TCF) for recipients of participation payments who are not declared program participants, i.e. participating in the Community Development Program. Division 3A of Part 3 of the Administration Act contains a compliance framework which applies to participants in the Community Development Program.

The TCF was introduced in 2018 and has been effective in its objectives of increasing compliance with requirements while targeting penalties only to those who are deliberately or persistently non-compliant or who deliberately refuse work. In the first year of operation the TCF reduced penalties by 90 per cent compared to the previous year, and increased compliance with requirements.

However, since introduction, further improvements have been made. From September 2020, the Government changed TCF administrative arrangements so that suspensions could be ended when a person satisfies their provider that they had a valid reason for not meeting a requirement. Previously, job seekers’ payment remained suspended until they complied with whatever the requirement they missed was - including if the circumstance that meant they were unable to meet their requirement was ongoing. In addition, from 7 December 2020 the Government introduced “resolution time” which allows job seekers two days to re-engage with their requirements before their payments are suspended.

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. 

Schedule 3 also supports the current practice of and appropriate compliance response to failures by recipients of participation payments to meet requirements, by making clear that sanctions need not be imposed where doing so would not further the objectives of the TCF. 

Suspension of a person’s participation payment for a mutual obligation failure

Currently, when a person commits a mutual obligation failure (defined in section 42AC of the Administration Act to include various failures such as failure to comply with an employment plan, to make adequate job search efforts, to attend a job interview or to attend an appointment with a provider), subsection 42AF(1) as a general rule requires the Secretary to suspend a person’s participation payment for a particular period - typically from the time the person committed the failure until they reconnect with their employment services provider - see generally section 42AL. 

The general rule does not apply to every type of mutual obligation failure, and in any case once the person reconnects with their provider, they are back-paid for the period of the suspension.

The purpose of payment suspension is to motivate a person to reconnect with their employment services provider after a mutual obligation failure. However, the Secretary is obliged to suspend a person’s participation payment even if the person has a reasonable excuse for the mutual obligation failure, and even if the person has already reconnected with their provider by the time the mutual obligation failure comes to the Secretary’s attention or before the Secretary has had time to issue a reconnection requirement. 

For example, a job seeker might miss an appointment with their provider scheduled for 10 am on a day, with or without a reasonable excuse, but of their own volition attend their provider soon after on the same day, before being issued with a reconnection requirement. 

In these cases, the Secretary suspends the person’s participation payment, but the period of suspension immediately ends, with no practical consequence. Suspension would therefore serve no material purpose, so it is appropriate to amend the law as is being done by this Schedule.    

Suspension or cancellation of a person’s participation payment for a work refusal failure

When a person commits a work refusal failure, defined in section 42AD of the Administration Act as refusing an offer of suitable employment, the Secretary is obliged under section 42AG to either suspend the person’s participation payment for the period set out in section 42AL - if the person has a reasonable excuse for the failure - or cancel the person’s participation payment if the person has no reasonable excuse. 

In the former case, the Secretary is still obliged to suspend the person’s participation payment even if they have reconnected with their employment services provider. Again, in those cases, there is no practical consequence to the suspension, as the period of suspension ends immediately.

In the latter situation, it is appropriate not to cancel their payment, particularly for example where the failure occurred shortly before a disaster or emergency such as prolonged bushfires in some areas as occurred during 2019-20. In these sorts of circumstances, to enable quick pausing of requirements and compliance arrangements, it would not be possible to consider each person’s individual circumstances and all the factors that must be considered in assessing whether a job seeker has a reasonable excuse. This would particularly be the case where the nature of the circumstance meant that it would not be practical for the job seeker to contact Services Australia and demonstrate that they had a reasonable excuse for their failure. It is not the policy to take compliance action in circumstances of that nature. 

Cancellation of a person’s participation payment for an unemployment failure

When a person commits an unemployment failure, as defined in section 42AE of the Administration Act as becoming unemployed as a result of a voluntary act by them which was not reasonable, or as a result of their misconduct as an employee, the Secretary is obliged under section 42AH to cancel the person’s participation payment. Currently, the requirement to cancel payment if a person does not have a reasonable excuse for refusing work or leaving work voluntarily depends purely on the fact of whether a person has refused work or become voluntarily unemployed.

Again, there will be cases, such as where the failure occurred during a disaster or emergency, where it would be appropriate not to cancel a person’s payment or individually assess whether they have a reasonable excuse for their failure. 

This Schedule therefore provides that the Secretary may , instead of must take compliance action following a failure. 

Items 5, 6, 8 and 10 amend sections 42AF, 42AG and 42AH of the Administration Act to replace the obligation on the Secretary to suspend, reduce or cancel a person’s participation payment for a mutual obligation failure, work refusal failure or unemployment failure with a decision to do so. That is, the Secretary will be given the flexibility to decide not to suspend or cancel a person’s participation payment in circumstances where the sanction will have no practical effect or is otherwise not the appropriate response to the person’s failure.

In practice, from job seekers’ perspective, no change from existing arrangements will occur. Where there is evidence that a person has refused suitable work without a reasonable excuse or voluntarily left suitable work, their payment will be cancelled. Similarly, where a job seeker commits a mutual obligation failure, if they do not have a valid reason for the failure and do not quickly re-engage with their requirements, their payment will be suspended until they meet a reconnection requirement.

Item 7 repeals subsections 42AF(3A) and (3B) as a consequence of the amendments to subsections 42AF(1) and (2) made by items 5 and 6. Subsections 42AF(3A) and (3B) currently provide that the Secretary does not need to suspend or reduce a person’s participation payment for a mutual obligation failure consisting of a failure to attend an appointment or give information in accordance with a notice under section 63 of the Administration Act. Those subsections are no longer necessary, as the Secretary will have ability not to suspend or reduce a person’s participation payment for a mutual obligation failure, including failure consisting of a failure to attend an appointment or give information.

Items 1 to 4, 9 and 11 to 13 amend provisions in Division 3AA that are otherwise consequent on the amendments made by items 5, 6, 8 and 10.

Item 14 is a transitional item that provides generally that the provisions of Division 3AA of Part 3 of the Administration Act as amended by Schedule 3 to the Bill apply to failures that occur, or circumstances that arise, on or after commencement of the amendments.

In addition, subitem 14(6) provides that the instrument made under section 42AI of the Act, insofar as it determines matters for subsection 42AG(2) of the Act before commencement (i.e. matters that must or must not be taken into account in determining whether a person has a reasonable excuse for a work refusal failure), continues in force as if those matters had been determined by the purposes of the new paragraph 42AG(1)(b) inserted by item 8. This means that the Social Security (Administration) (Reasonable Excuse - Participation Payments) Determination 2018 (F2018L00779) will continue in force and continue to set out the matters that must or must not be taken into account by the Secretary in determining whether a person has a reasonable excuse for a work refusal failure.

Schedule 4—Amounts not counted as income

Social Security Act 1991

This Schedule means that the Employment Secretary will be able to ensure that payments and benefits from Commonwealth and State and Territory employment programs, which may otherwise be income for social security law purposes, will not be considered income for those purposes. Payments and benefits from these programs can therefore be used as intended by job seekers, thereby improving the effectiveness of employment programs while providing certainty to job seekers that their income support payments will not be affected.

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. 

In addition, so-called “exempt lump sums” are not considered part of a person’s ordinary income for the purposes of the social security law; subsection 8(11) of the Social Security Act enables the Secretary to determine, by legislative instrument, classes of amounts that are exempt lump sums (and hence not ordinary income).

Amounts payable under a number of current Commonwealth and State and Territory employment programs are included in subsection 8(8) [3] or determined as exempt lump sums under instruments made under subsection 8(11) [4] . This means that payments or benefits from these programs do not count towards the person’s income for social security law purposes and do not impact on their income support payments.

However, not all amounts payable under employment or sectoral adjustment programs are included in subsection 8(8) or determined under instruments made under section 8(11), meaning that the person is required to report those payments or benefits as income to Services Australia, which in turn might affect their income support payments. This creates a disincentive for job seekers to participate in programs designed to assist them find and keep, or transition to new, paid work.

Item 1 will therefore insert two new paragraphs (zv) and (zw) at the end of subsection 8(8) of the Social Security Act that will allow payments and benefits from Commonwealth and State and Territory employment programs to not be considered income for social security law purposes.

Item 2 will insert a new subsection 8(8AC) into section 8 of the Act authorising the Employment Secretary to determine, by notifiable instrument, programs for the purposes of the new paragraphs 8(8)(zv) and (zw).



 

Schedule 5—Approved programs of work for income support payments

Social Security Act 1991

Subsection 28(1) of the Social Security Act empowers the Secretary to declare, in writing, that particular programs of work are approved programs of work for income support payment.

Subject to certain limitations, participation in an approved program of work for income support payment can be included as one of the activities a person in receipt of income support can be required to undertake under their employment pathway plan.

Work for the Dole and the National Work Experience Programme are the only current approved programs of work.

A consequence of a declaration of a program of work is that participants in the declared program of work are entitled to an approved program of work supplement as part of their income support payment. The supplement is currently $20.80 per fortnight. In addition, job seekers cannot have a compulsory requirement to participate in an approved program of work if they are receiving a part rate of income support due to the effect of income testing, or if they are under 18 or over 60 years of age.

Item 1 amends subsection 28(1) of the Act to provide that the Secretary’s declaration of an approved program of work for income support payment is a legislative instrument. The amendment will remove uncertainty by clarifying the status of the instrument, bring the provision into line with modern drafting practices, and provide Parliamentary oversight of such declarations by requiring the instrument to be registered on the Federal Register of Legislation, and tabled.

The non-registration of the instrument to date has not disadvantaged job seekers because it did not prevent the payment of the supplement.   

Item 2 provides that the amendment applies in relation to declarations made on or after its commencement. Current declarations of approved programs of work for income support payment are therefore unaffected.

 

 



 

Schedule 6—Activities that do not give rise to employment under certain industrial relations legislation

Social Security Act 1991

In many of the employment programs that a person will participate in under their employment pathway plan they will undertake training or other work-related activities that they might undertake as paid workers. The purpose of the employment program is to provide the person with the skills and knowledge to gain and maintain paid work.

For many years the social security law has provided that merely because a person has been required to participate in such employment programs as a condition of their receipt of income support payment, the person will not be treated as an employee of, or worker for, the Commonwealth for a variety of Commonwealth laws.

This is due to subsection 501D(4) (in relation to recipients of Parenting Payment), subsection 544B(8) (in relation to recipients of Youth Allowance), section 631C (in relation to Jobseeker Payment recipients) and section 745L (in relation to recipients of Special Benefit). 

The language in each of these provisions makes clear that they do not apply when the person is engaged in paid work - because in that case it would be appropriate for the relevant laws to apply to them. 

Even in the absence of these provisions it would generally be unlikely that a person engaged in unpaid activities as part of an employment program would be a worker or employee for the purposes of those laws, although that would depend on the circumstances of individual programs and activities.

In line with the consolidation of employment pathway plan provisions made by Schedule 1 to the Bill, Schedule 6 will consolidate these provisions.

Item 1 of this Schedule inserts a new section 40 into the Social Security Act that provides that if a person:

·          participates in an approved program of work for income support payment or in an employment program; or

·          undertakes an activity, other than paid work, in accordance with a term of an employment pathway plan, including an optional term;

then merely because of that participation the person is not to be taken to be an employee or worker doing work for the Commonwealth for the purposes of the W ork Health and Safety Act 2011 , or an employee for the purposes of the:

·          Safety, Rehabilitation and Compensation Act 1988;

·          Superannuation Guarantee (Administration) Act 1992; or

·          Fair Work Act 2009 .

 

As well as consolidating the provisions this item adds an aspect, which is that if a person participates in an employment program established by the Commonwealth and which is determined by the Employment Secretary by notifiable instrument to be a program for the purpose of this provision, then this provision will apply in connection with that participation, whether or not the program is an approved program of work or the participation is in accordance with a term of an employment pathway plan. 

This amendment will frequently be of no practical relevance because job seekers usually participate in Commonwealth employment programs in accordance with a term of an employment pathway plan and / or the program is an approved program of work, and because as noted above the relevant Commonwealth laws would usually not apply anyway. 

Where it is of any practical relevance, it will have the same effect as the current provisions which are being consolidated in that the same set of Commonwealth laws will not apply in connection with participation in a Commonwealth employment program.    

Further, irrespective of the legal position, the Commonwealth makes extensive efforts to promote the health, safety and interests of job seekers who participate in Commonwealth employment programs. For example, the Commonwealth requires program providers to ensure that participants have a safe workplace. Job seekers are covered by accident and indemnity insurance equivalent to workers’ compensation. These arrangements will continue and will not be impacted by these amendments. 

Items 2 and 3 will repeal the equivalent provisions in relation to recipients of Jobseeker Payment and Special Benefit, and the equivalent provisions in relation to recipients of Parenting Payment and Youth Allowance (subsections 501D(4) and 544B(8) respectively) are repealed by items 21 and 60 of Schedule 1 respectively.

Item 4 is a transitional provision that provides that the new section 40 applies to participation in a program, or the undertaking of an activity, that occurs on or after its commencement, whereas the repealed provisions continue to apply to participation in a program, or the undertaking of an activity, that occurred prior to commencement.

As an incidental matter, Schedule 9 will repeal section 38J which relates to participants in the Green Army Programme and is in similar terms to the above provisions. Section 38J is being repealed because the Green Army Programme ceased some years ago.   

 



 

Schedule 7—Youth Allowance ordinary income free area

Social Security Act 1991

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. This means that legislative changes aimed at enacting policies specifically designed for job seekers or students must be enacted by defining which cohorts will be addressed. Historically in social security law, this has been done by referring to ‘full-time students’ or ‘new apprentices’, and referring to job seekers as those not undertaking full-time study or new apprentices.

One such policy is the ordinary income free area for Youth Allowance set out in point 1067G-H29 of the Youth Allowance Rate Calculator (Part 3.5 of the Social Security Act), and the rate at which a person’s Youth Allowance is reduced once they exceed the ordinary income free area - their ordinary income excess - set out at points 1067G-H32 and 1067G-H33 of the Youth Allowance Rate Calculator. The Rate Calculator currently provides that a different ordinary income free area applies to Youth Allowance recipients “undertaking full-time study”.

However, those receiving Youth Allowance as job seekers may also study short courses as part of their requirements, recognising that addressing a skills gap or quickly upskilling may improve job seekers’ employment prospects and aid them in securing sustainable work. 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.

These provisions therefore make clear in legislation and reflect existing long-standing policy that those receiving Youth Allowance as a job seeker continue to be treated as such when undertaking study as part of their requirements. For clarity, these amendments do not limit support to those wishing to study. Nothing in these amendments would preclude job seekers who wish to access policies designed for students from being able to claim Youth Allowance as a student instead of as a job seeker.

Items 1 to 3 of Schedule 7 amend paragraphs 1067G-H29(a), 1067G-H32(a) and 1067G-H33(a) to clarify that the Youth Allowance ordinary income free area and rate reduction available to full-time students do not apply to persons who undertake full-time study during a particular fortnight because they complied with a requirement to undertake that study under their employment pathway plan.

Item 4 provides that the amendment to paragraphs 1067G-H29(a), 1067G-H32(a) and 1067GH33(a) apply to working out the rate of Youth Allowance for days on or after commencement of the amendment.



 

Schedule 8 —Start day for Jobseeker Payment and Youth Allowance

Farm Household Support Act 2014

Part 5 of the Farm Household Support Act applies the social security law, in a modified way, to the provision of payments and benefits under that Act. Farm household allowance under that Act is generally treated in the same way as Jobseeker Payment and Youth Allowance under the social security law.

Schedule 8 to the Bill will amend the start day provisions in relation to Jobseeker Payment and Youth Allowance, as a consequence of the amendments made by Schedule 1 to the Bill. Those amendments are not intended to affect the provision of farm household allowance under the Farm Household Support Act.

As a result, item 1 amends section 98 in Division 5 of the Farm Household Support Act to provide that the new clause 4B of Schedule 2 to the Administration Act (as inserted by item 10 of Schedule 8) does not apply in relation to the operation of the Farm Household Support Act.

Social Security Act 1991

Social Security (Administration) Act 1991

Generally speaking, a person’s social security payment becomes payable to them from their “start day” in relation to that payment - see section 41 of the Administration Act.

A person’s start day for a social security payment is worked out under Schedule 2 to the Administration Act. Unless exempt from these arrangements, clause 4A of Schedule 2 sets out how to calculate the start day of a person who has claimed Jobseeker Payment or Youth Allowance (other than as a full-time student or new apprentice), and who has been required by the Secretary to attend an interview. This clause generally applies to job seekers who have been required to engage with an employment services provider (typically, to develop their employment pathway plan). In most cases, the job seeker’s Jobseeker Payment or Youth Allowance will commence either from the day they attend the interview with their employment services provider (if that occurs within 2 business days of them being given notice of the requirement to attend) or from the day that they are given notice of the requirement to attend.

However, since COVID-19, a large number of job seekers access employment services online. These job seekers do not have a requirement to attend an interview with an employment services provider and so the arrangements in clause 4A of Schedule 2 do not apply. In practice, this means that these job seekers instead receive payment after entering into an employment pathway plan, but are back-paid until the date of claim (their start day being worked out under clause 3 of Schedule 2). In practice, this creates an inequity whereby those job seekers who are assessed as job-ready and are serviced in online employment services, receive payment from the date of their claim rather than when connecting with employment services like those serviced by providers - who may need more assistance to find work.

To address this inequity, and incentivise faster connection with employment services that help job seekers find work, item 14 will insert a new clause 4B in Schedule 2 to the Administration Act that will set out the start day of a person who enters an employment pathway plan under the new section 40E of the Social Security Act (inserted by item 123 of Schedule 1 to the Bill).

Under subclause 4B(2), the general rule will be that a person’s start day for Jobseeker Payment or Youth Allowance will be the day that they enter into their online employment pathway plan.

However, under subclause 4B(3), if a person intended to enter into an online employment pathway plan on a certain day, but failed to do so, and they satisfy the Employment Secretary that the failure to do so was for reasons beyond their control, then the person’s start day is either the day they were given notice of the requirement to enter into an employment pathway plan, or (if they were not given such a requirement), the day they made a claim.

The purpose of subclause 4B(3) is to ensure that a person is not disadvantaged by being unable to complete an online employment pathway plan through no fault of their own, for example the job seeker experienced:

·          technical difficulties that prevented them from entering a plan;

·          illness or injury that prevented them from entering a plan;

·          unexpected caring responsibilities or paid work which prevented them from entering a plan;

·          a major personal crisis and was exempt from requirements.

For clarity, subclause 4B(3) is not intended to cover circumstances where a person’s failure to enter into an employment pathway plan was in their control - for example the job seeker:

·          experienced foreseeable and reasonably avoidable circumstances prevented entering an employment pathway plan;

·          experienced technical difficulties but made no effort to address those difficulties or seek assistance, despite being able to;

·          deliberately delayed or chose not to enter into an employment pathway plan.

Subclause 4B(4) gives the Employment Secretary discretion to provide that clause 4B does not apply to work out a person’s start day. This reflects the policy intent that some job seekers may be exempt from start day provisions in the same way that job seekers may be exempted from arrangements in clause 4A of Schedule 2. Currently, these exemptions apply to job seekers when they are:

·          referred to further assessment (referred to as an Employment Services Assessment);

·          in their third trimester of pregnancy;

·          exempt from mutual obligations (for example due to illness or injury);

·          aged under 22 years and:

o    are potentially eligible for Adult Migrant English Program or the Skills for Education and Employment program, or

o    have applied for recognition of their overseas qualifications;

·          referred to Disability Employment Services or the Community Development Program;

·          receiving Youth Allowance and it is unreasonable for them to live at home;

·          required to participate in an appointment within 14 calendar days could be considered unreasonable or otherwise not possible (due to the job seeker’s limited access to provider sites, the provider’s limited appointment availability, the limited availability of interpreters, etc.)

·          considered to be fully meeting their requirements (for example, job seekers who are principal carer parents, have an assessed partial capacity to work or are aged over 55 may fully meet their requirements through 30 hours per fortnight of paid work - or volunteer work in some circumstances);

·          transferring from one payment to another and already have compulsory mutual obligation requirements;

·          assessed to have a work capacity of 0-7 or 8-14 hours per week.

This provision will also be used to maintain the current policy whereby job seekers in the Community Development Program are generally required to attend an interview with their provider before receiving payment, but are generally back-dated to the point of claim.

Items 2 to 7 amend provisions in the Social Security Act that cross-refer to clause 4A of Schedule 2 to the Administration Act, to include reference to the new clause 4B inserted by item 14.

Item 8 amends the note to subclause 3(1) of Schedule 2 to the Administration Act as a consequence of the insertion of the new clause 4B.

Item 9 amends subclause 4A(1) of Schedule 2 to the Administration Act which currently provides that clause 4A applies instead of subclause 3(1) if in relation to a person’s claim the Secretary gives the person a notice under section 63 of the Administration Act requiring the person to attend a particular place for an interview on a day specified in the notice, which is referred to as “the specified day”. The amendment by item 9 makes clear that the notice under section 63 which it refers to can either be a notice for a purpose in connection with entering into an employment pathway plan or for any other purpose specified in the notice.

Item 10 amends subclause 4A(2) of Schedule 2 to the Administration Act by omitting reference to any guidelines made under subclause 4A(3), as subclause 4A(3) is being repealed by item 12. As amended, subclause 4A(2) provides that clause 4A does not apply in relation to a person and a claim if the Secretary is satisfied in all the circumstances that it should not apply to the person and the claim. 

Item 11 adds a note at the end of subclause 4A(2) of Schedule 2 which indicates that the effect of the Secretary being satisfied that clause 4A should not apply to a person is that the person’s start day is, subject to the other clauses in Schedule 2, the day on which their claim is made.

Item 12 repeals subclause 4A(3) of Schedule 2 to the Administration Act. Subclause 4A(3) currently provides that the Secretary may, by legislative instrument, make guidelines to be complied with in deciding under subclause 4A(2) whether clause 4A applies to a person. As the legislative instrument is unnecessary, and had not been made, subclause 4A(3) is being repealed to make the law shorter and simpler.    

Item 13 amends subclause 4A(4) of Schedule 2 to the Administration Act so that it provides that the start day for a person is either the specified day or if the period between the day the Secretary imposes the requirement under section 63 and the specified day is more than two business days, otherwise than at the person’s request, the start day is the day the Secretary imposes the requirement under section 63. This is not a substantive change but rather a re-casting of subclause 4A(4) using less prolix language.  

Item 14 inserts the new clause 4B as noted above.  

Item 15 provides that the new clause 4B will apply to working out the start day of persons who make claims for Jobseeker Payment or Youth Allowance on or after commencement of the new clause.

 



 

Schedule 9 —Repeal of spent provisions

Social Security Act 1991

Social Security (Administration) Act 1999

The National Green Jobs Corps commenced on 1 January 2010 and ceased on 30 June 2012. While a person in receipt of Parenting Payment or Youth Allowance participated in the National Green Jobs Corps they were entitled to a National Green Jobs Corps supplement.

The Green Army Programme commenced on 1 July 2014 and ceased on 30 June 2018. Participants in the Green Army Programme were entitled to a payment - the green army allowance - under Part 1.3A of the Social Security Act. If participants were otherwise entitled to another social security payment or social security benefit, that payment or benefit was not payable to them while they were in receipt of the green army allowance.

Section 28B of the Social Security Act empowers the Secretary to approve training courses for training supplement. A person in receipt of Parenting Payment or Jobseeker Payment (Newstart Allowance at the time training supplement was paid) could undertake an approved training course for training supplement as part of their activities under an employment pathway plan, and if they did so, their rate of payment would include an amount of training supplement.

The training supplement was a temporary measure introduced following the Global Financial Crisis, as part of the Jobs and Training Compact, in recognition of the fact that training costs were considered a barrier to participation in training for some job seekers. The training supplement of $41.60 per fortnight was available to encourage low-skilled job seekers to undertake training during the economic downturn so that they could benefit in the recovery. It was available for approved study in courses of less than 12 months in duration that commenced between 1 July 2009 and 30 June 2011.

Because the National Green Jobs Corps, the Green Army Programme and training programs for training supplement have all ceased, along with the associated payments and supplements under the social security law, there is no longer any need for provisions in the social security law that relate to them.

Items 1 to 19 therefore repeal redundant provisions in the Social Security Act and the Administration Act that relate to these programs and supplements, or amend provisions that refer to or relate to repealed provisions.

 



 

Schedule 10 —Contingent amendments 

Social Security Act 1991

Item 18 of Schedule 7 to the Social Services Legislation Amendment (Welfare Reform) Act 2018 amends paragraph 38B(6)(c) of the Social Security Act, by replacing reference to subsections 615(1) and 771HF(1) with a reference just to subsection 615(1). This is due to the repeal of subsection 771HF(1) (along with the rest of Part 2.15A of the Social Security Act) by item 21 of Schedule 7 to that Act.

Schedule 7 to the Social Services Legislation Amendment (Welfare Reform) Act commences on 1 January 2022 (see item 11 in the table to subsection 2(1) of the Act).

Section 615 of the Social Security Act is repealed by item 80 of Schedule 1 to this Bill, making paragraph 38B(6)(c) of the Act redundant. Consequently, this Bill - items 1 and 2 to Schedule 10 - will repeal that paragraph. However, in order to prevent item 18 of Schedule 7 to the Social Services Legislation Amendment (Welfare Reform) Act not being effective, the repeal of paragraph 38B(6)(c) will be delayed at least until after that item commences - see item 8 in the table in subclause 2(1) of the Bill.

 

 




[1] The Acts Interpretation Substituted Reference Order 2019 [F2019L00933] provides that the reference to the Employment Department in subsection 23(1) of the Social Security Act is to be read as the Department responsible for employment policy, including employment services.

[2] See Social Security (Declaration of Visa in a Class of Visas - Special Benefit Activity Test) Determination (No. 2) 2015 [F2015L01554].

[3] See, for example, paragraphs 8(8)(r), (s), (t), (ta), (tb), (tc), (td), and (zs).

[4] See, for example, the Social Security (Exempt Lumps Sums - Expense Payment Associated with Participation in the New Employment Services Trial) Determination 2019 [F2019L01290] .