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Social Security Legislation Amendment (Remote Engagement Program) Bill 2021

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2019-2020-2021

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

  

SOCIAL SECURITY LEGISLATION AMENDMENT

(REMOTE ENGAGEMENT PROGRAM) BILL 2021

    

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by the authority of the Minister for Indigenous Australians,

the Honourable Ken Wyatt AM MP)





ABBREVIATIONS

In this explanatory memorandum:

·          Acts Interpretation Act means the Acts Interpretation Act 1901;

·          CDEP means the Community Development Employment Projects;

·          CDP means the Community Development Program;

·          participant means a person participating in a remote engagement placement under the remote engagement program;

·          provider means a remote engagement program provider ;

·          Social Security Act means the Social Security Act 1991 ;

  • Social Security (Administration) Act means the Social Security (Administration) Act 1999 ; and
  • social security law includes the Social Security Act and the Social Security (Administration) Act.


 

 SOCIAL SECURITY LEGISLATION AMENDMENT 

(REMOTE ENGAGEMENT PROGRAM) BILL 2021 

PURPOSE AND OBJECTIVES

1.       The Social Security Legislation Amendment (Remote Engagement Program) Bill 2021 (Bill) will provide a framework for piloting new approaches to delivering employment services in remote communities, ahead of implementing the Government’s Budget announcement that the Community Development Program (CDP) will be replaced in 2023.  

2.       This Bill supports collaboration with communities to develop an appropriately flexible program that will build the skills and vocational capabilities of people in remote communities.  Many of the more detailed aspects of the approach will be set out in legislative instruments and policy guidance, allowing flexibility to adjust as lessons are learnt and communities’ ideas change over the course of the pilots.

3.       The Bill introduces a new supplementary payment (new payment) to be made to eligible job seekers in remote engagement program pilot communities so they can engage in activities or placements that are like having a job. The placements will build participants’ skills in roles that will deliver goods or services to benefit local communities and provide a pathway for jobseekers to find a job.

4.       The pilots will be co-designed in partnership with a number of remote communities ahead of 2023. The new payment will be one aspect communities can trial alongside other approaches to training, skills development and non-vocational support as they co-design the remote engagement program. 

5.       Lessons learned from the pilot sites will inform the design of the new program to be rolled out in 2023. Initially, we estimate around 200 eligible job seekers across the pilot sites will volunteer for the payment.

6.       The Government is committed to co-designing the pilots with communities, and believes this will be critical to their success. It is important that there is capacity to trial different approaches in different sites. To give effect to the Government’s commitment to work in partnership with Indigenous communities, the Bill sets out the basic parameters of the payment, with other elements such as the qualification criteria and the exact rate of payment to be set out in detail in legislative instruments and policy guidance. These legislative instruments will be informed by the outcomes of a co-design process in the pilot sites.

7.       The Government will take the time to work together and listen to communities in the pilot sites about what they think could work in their community in relation to the amount of payment to be provided, the hours of engagement to be undertaken in return and what eligible job seekers are required to do to continue to receive the payment. This will also better allow for adjustments during the pilots as lessons are learned. The Bill provides that the payment will be time-limited, meaning that the legislation will need to be revisited ahead of the national roll out of the new remote engagement program. This will ensure continuing Parliamentary scrutiny.

8.       The new payment will be paid at a fixed fortnightly rate and will be additional to certain primary income support payments and other supplements for eligible job seekers. The new payment will not be subject to the income test in the Social Security Act 1991 .

9.       The aim is for an eligible job seeker’s income support plus the new payment to be approximately equivalent to the minimum wage for the hours participating in work like activities. Eligible job seekers will voluntarily participate in a role in government services or a community organisation for between 15 and 18 hours per week building important skills and experience. The placements will not be a job, but will aim to give job seekers experience that will enable transition to paid employment. The payment will not be at a level high enough that people avoid taking up paid employment opportunities. The pilots provide an opportunity to test the level of incentives.

GENERAL OUTLINE

10.   Parts 1 and 2 of the Bill will amend the Social Security Act and the Social Security (Administration) Act to:

a.        Establish a new payment under the remote engagement program, (i.e. the ‘remote engagement program payment’), which will be set at a rate between $100 and $190 per fortnight, for a maximum continuous period of 104 weeks.

b.       Establish high-level qualifying criteria for the remote engagement program payment.

 

c.        Establish that participation in the remote engagement placement is voluntary and a person can volunteer to leave the placement if they choose.

 

d.       Enable the Minister to make legislative instruments that specify additional qualification criteria, determine circumstance in which the remote engagement program payment is not payable, and fix the rate of the remote engagement program payment.

11.   Parts 3 and 4 of the Bill contain amendments to repeal or omit sections of the Social Security Act applying to past Australian Government programs that have now closed. Specifically, the Bill repeals or omits provisions relating to the former Community Development Employment Projects (CDEP) Scheme. Removing these obsolete provisions will assist in modernising and streamlining the social security legislation.

12.   The Bill has no impact on arrangements for CDP participants outside the agreed pilot sites.

13.   The Government is reforming remote employment services in 2023, as part of its suite of reforms to employment services programs to ensure they remain fit-for-purpose, make the most of technological advances and support Australia’s economic recovery from COVID-19. The remote engagement program reforms will be co-designed and piloted in partnership with a number of remote communities ahead of 2023.

14.   The Bill creates a new payment for job seekers in remote engagement program pilot communities who volunteer to participate in a placement that is like having a job. The new payment will be one aspect that communities can trial alongside other approaches to training, skills development and non-vocational support in their remote employment program.

15.   The aim will be to develop an approach that empowers people, many of them Indigenous people, living in our remote communities to develop their skills and engage in economic opportunities in a way that is both tailored to their specific needs and beneficial to their communities. The approach will focus on better supporting the social and economic aspirations of remote Indigenous communities by helping job seekers gain skills and find a job. 

16.   The new program will contribute to the National Agreement on Closing the Gap, which includes targets to close the gap on employment outcomes between Indigenous and non-Indigenous Australians.

17.   The new payment is one design element of the new program we would like to co-design with communities as part of the pilots. We will also work with communities during the pilot phase to explore:

-           how to provide better support to job seekers who have the skills and experience to work, but are having difficulty finding work

-           vocational training options for job seekers that will lead to real jobs in their communities

-           how to provide the right support, at the right time, to job seekers with acute or complex needs and

-           the best ways to engage with and support job seekers to meet Mutual Obligation Requirements.

 

 

FINANCIAL IMPACT STATEMENT

18.   The costs of this measure will be absorbed within the Indigenous Advancement Strategy.   

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

19.   The Statement of Compatibility with Human Rights is provided at the end of this Explanatory Memorandum.

NOTES ON CLAUSES

Clause 1 - Short title

20.   This clause provides for the Act to be cited as the Social Security Legislation Amendment (Remote Engagement Program) Act 2021 .

Clause 2 - Commencement

21.   Clause 2 sets out the commencement details for the Act. Specifically, the table in subclause 2(1) provides that:

·                 Sections 1 to 3 and anything in the Act not elsewhere covered by the table will commence on the day after the Act receives the Royal Assent.

·                 Part 1 of Schedule 1 will commence on a day to be fixed by proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day after the Act receives the Royal Assent, they will commence on the day after the end of that period.

·                 Part 2 of Schedule 1 will commence either immediately after the commencement of the provisions of Schedule 1, Part 1, or immediately after the commencement of Schedule 1 to the Social Security Amendment (Streamlined Participation Requirements and Other Measures) Act 2021 , whichever is the later. However this part will not commence at all if Schedule 1 to the Social Security Amendment (Streamlined Participation Requirements and Other Measures) Act 2021 commences at or before that time.

·                 Part 3 of Schedule 1 will commence on the day after the Act receives the Royal Assent.

·                 Part 4 of Schedule 1 will commence on the day after the Act receives the Royal Assent. However this part will not commence at all if Schedule 1 to the Social Security Amendment (Streamlined Participation Requirements and Other Measures) Act 2021 commences on or before the day the Act receives Royal Assent.  

Clause 3 - Schedules

22.   Clause 3 provides that legislation specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule, and, any other item in a Schedule to this Act has effect according to its terms.



 

Schedule 1—Amendments

 

Part 1—Main amendments relating to remote engagement program payment  

Social Security Act 1991

Item 1 - Subsection 23(1)

23.   Item 1 amends subsection 23(1) of the Social Security Act to insert definitions for 4 new terms relating to the new remote engagement program payment. These are as follows:

·                 qualifying remote income support payment’ which means a payment listed under section 661B. This definition refers the reader to new section 661B inserted by item 7 of the Bill.

·                  ‘ remote engagement placement’, under a remote engagement program, is defined as ‘a part of the program (if any) determined by the Minister under paragraph 661A(2)(b)’. This definition relates to the new Part 2.13 as, to receive the remote engagement program payment established under that part, the Secretary must be satisfied that the person has agreed to participate, and is participating, for at least 15 hours per week in a remote engagement placement under the remote engagement program. The remote engagement placement is one of four elements of the remote engagement program, which will provide eligible jobseekers the opportunity to take part in a placement in which they can gain relevant experience to facilitate a transition to paid work.

·                   remote engagement program’ which means ‘an arrangement (if any) determined by the Minister under new paragraph 661A(2)(a)’. This definition relates to Part 2.13, which establishes a remote engagement program payment for certain recipients of income support payments who participate in a remote engagement placement under the remote engagement program.

 

·                 remote engagement program provider’ which means ‘a person or organisation that is a party to an agreement with the Commonwealth under which the person or organisation receives Commonwealth funding to deliver the remote engagement program’. The term ‘person’ is defined in section 2C of the Acts Interpretation Act to include an individual or body politic or body corporate.

Item 2 - After paragraph 23(4AA)(ad)

24.   Item 2 inserts new paragraph 23(4AA)(ae) to provide that new Part 2.13 (which establishes the remote engagement program payment) is a specified provision for the purposes of subsection 23(4A) of the Social Security Act. In specified circumstances, subsection 23(4A) extends the period in which the person may be taken to be ‘receiving a social security payment’ for the purposes of the Social Security Act. The purpose of this amendment is to ensure that the person’s entitlement to the remote engagement program payment is not affected by changes in the employment income the person or their partner, for a period of up to 12 weeks from when the change occurred. The effect of item 2 is to allow a participant’s remote engagement program payment to continue to be payable in circumstances where either their employment income or their partner’s employment income, has reduced the rate of the person’s qualifying remote income support payment to nil.

Items 3 to 6 - At the end of subsections 94(1) and 500(1), section 540 and subsection 593(1)

25.   Items 3 to 6 insert new notes at the end of subsections 94(1) and 500(1), section 540 and subsection 593(1) that alert the reader to the fact that a person who is receiving a disability support pension, parenting payment, youth allowance or jobseeker payment (as applicable) and who is also receiving employment services from a remote engagement program provider, may also qualify for a remote engagement program payment under Part 2.13 of the Social Security Act.

Item 7 - After Part 2.12

26.   Item 7 inserts new Part 2.13 into Chapter 2 of the Social Security Act to create the new remote engagement program payment. Part 2.13 is divided into 3 new divisions relating to: qualification for, and payability of, the remote engagement program payment (Division 1); the rate of payment (Division 2); and miscellaneous matters (Division 3).

Division 1 - Qualification for and payability of remote engagement program payment  

 

Subdivision A - Qualification

27.   In new Subdivision A of Division 1, the new section 661A sets out the qualification criteria for a remote engagement program payment for a period.

28.   Subsection 661A(1) provides that a person will qualify for a remote engagement program payment for a period if, throughout the period:

(a)            the person is receiving a qualifying remote income support payment; and

(b)           the person is receiving employment services from a remote engagement program provider; and

(c)            the Secretary is satisfied that the person has agreed to participate, and is participating, in an remote engagement placement for at least 15 hours per week under the remote engagement program; and

(d)           the person satisfies the qualification requirements (if any) determined by the Minister under paragraph (2)(c).

29.   The above qualification criteria in subsection 661A(1) are cumulative. Each must be satisfied in order for the person to qualify for the new remote engagement program payment. Due to the discretionary nature of the decisions being made by the Secretary or Minister under this provision, these decisions will not be made using automated decision-making.

30.   Under new paragraph 661(1)(a), qualification for the remote engagement program payment is  limited to jobseekers who are receiving a qualifying remote income support payment as defined in new section 661B’.. This paragraph provides that eligible persons will receive the new remote engagement program payment in addition to their qualifying remote income support payment. This provision operates subject to the operation of new paragraph 24(4AA)(ae)—described at item 2 above.

31.   New paragraph 661A(1)(b) makes it a precondition to payment that a jobseeker must also be engaging with relevant employment services through a remote engagement program provider. This will help ensure that the remote engagement program payment is available for jobseekers experiencing long-term unemployment, who are also already engaging with employment support services. Having an existing relationship with a jobseeker will enable remote engagement program providers to understand the jobseeker’s background and the particular barriers they face in obtaining and maintaining paid employment. The information will assist providers to tailor their services and support for jobseekers participating in a remote engagement placement.

32.   Under proposed paragraph 661A(1)(c) the Secretary must be satisfied that the person has agreed to participate, and is participating, in a remote engagement placement for at least 15 hours per week under the remote engagement program. Remote engagement placements will require jobseekers to participate in activities for at least 15 hours per week. These activities will be determined throughout the pilot phase of the remote engagement program, developed in co-design with relevant stakeholders and communities in remote engagement program pilot sites.

33.   New paragraph 661A(1)(d) additionally makes it a qualification criterion that the person satisfy further qualification requirements (if any), as determined by the Minister under paragraph 661A(2)(c). Paragraph 661A(1)(d) will allow the Minister to add further qualification criteria that must be met in order to qualify for the remote engagement program payment. The purpose of this is to provide flexibility and enable further specificity in relation to the qualification criteria if required following the co-design process. Any additional criteria must be made by legislative instrument and will therefore be subject to the scrutiny of, and disallowance by, the Parliament.

34.   A decision made by the Secretary under subsections 661A(1)(d) is reviewable or appealable under the Social Security (Administration) Act.

35.   Under new subsection 661A(2), the Minister will have the authority to determine, by legislative instrument, any one or more of the following:

a.        an arrangement to be the remote engagement program;

b.       a part of the remote engagement program to be a remote engagement placement under the program; and

c.        a qualification requirement for the purposes of paragraph 661A(1)(d).

36.   New section 661B defines the term ‘qualifying remote income support payment’ by setting out—in tabular form— the circumstances in which a person must qualify for the underlying income support payment in order for their payment to meet the definition of a ‘qualifying remote income support payment’ Under new section 661B, participation in the remote engagement placement is limited to those individuals that have the capacity to work, are not undertaking full-time study and have entered into an employment pathway plan with their remote engagement program provider.

37.   Subsection 661B(1) provides that a qualifying remote income support payment is a payment specified, and for which the person qualifies in the circumstances set out, in the table.

38.   Relevantly, the qualification criteria that corresponds to each payment are as follows:

a.               for disability support pension— the person qualifies in subsection 94(1) of the Social Security Act and is either:

(a)     required to meet participation requirements under section 94A of the Social Security Act (because they are within paragraph 94(1)(da) of that Act); or

(b)    covered by a participation exemption under sections 94C, 94D, 94E or 94F of the Social Security Act.

b.              for parenting payment—the person qualifies under subsection 500(1) of the Social Security Act and is either:

(a)     required to meet participation requirements under section 500A of the Social Security Act (because they fall within paragraphs 500(1)(c) or (ca) of the Social Security Act);or

(b)    covered by a participation exemption under Division 3A of Part 2.10 of Social Security Act.

c.               for the youth allowance payment—the person qualifies under section 540 of the Social Security Act and is either:

(a)     required to meet the activity test under Subdivision B, Division 1 of Part 2.11 of the Social Security Act (because they fall within subparagraph 540(a)(i) of the Social Security Act); or

(b)    covered by an exemption from the activity test under Subdivision C, Division 1 of Part 2.11 of the Social Security Act. However, if the person is undertaking full time study (in satisfaction of the activity test under paragraph 541(1)(a) of the Social Security Act), their payment will not be a qualifying remote income support payment.

d.              for the jobseeker payment—the person meets qualifies under subsection 593(1) or (4) of the Social Security Act and is either:

(a)     required to meet the activity test under Subdivision B, Division 1 of Part 2.11 of the Social Security Act (because they fall within subparagraph 593(1)(b)(i) of the Social Security Act); or

(b)    covered by an exemption from the activity test under Subdivision B or Subdivision BA, Division 1 of Part 2.11 of the Social Security Act.

e.               for any other income support payment—the person is in a class of persons determined by the Minister under subsection 661B(2).

39.   New subsection 661B(2) gives the Minister the power to determine, by legislative instrument, any other class of persons who is receiving any other income support payment to be receiving a qualifying remote income support payment. The term ‘ income support payment ’ is defined in subsection 23(1) of the Social Security Act and encompasses other payment types such as special benefit and a service pension under the Veterans’ Entitlements Act 1986 .

 

 

 

Subdivision B—Payability

40.   Subdivision B of new Division 1 provides that the remote engagement program payment will be payable except where it is not payable. That is, new subdivision B creates exceptions to payability of the remote engagement program payment.

41.   New subsection 661C(1) states that the remote engagement program payment is not payable in the circumstances (if any) that are specified by a legislative instrument made under subsection 661C(2). New subsection 661C(2) gives the Minister the power to make a legislative instrument setting out the circumstances in which a remote engagement program payment is not payable to the person. The purpose of this section is to afford sufficient flexibility in the design of the remote engagement placement, to accommodate:

·                 the outcomes of the co-design process with community; and

·                 improvements in the design of the remote engagement placement, identified through feedback from participants and remote engagement program providers.

42.   New section 661D establishes time limits on the payability of the remote engagement program payment. Subsection 661D(1) provides that the remote engagement program payment is not payable to the person who has received the remote engagement program payment for a continuous period of 104 weeks starting at the time they first received the payment. This limit is applied because the remote engagement placement is not intended to be a long-term arrangement, but has been developed to improve jobseeker skills and job readiness as well as to assist the transition to paid work.

43.   New subsection 661D(2) provides that a remote engagement program payment is not payable to the person in respect of any period starting on or after 1 July 2024. This provision limits the payability of the remote engagement program payment beyond the end of the pilot phase of the remote engagement program in 2023. A grace period has been added, which will allow payment up to one year after the end of the pilot phase of the remote engagement program. This will accommodate any delay to the start of the remote engagement program and thereby ensure that jobseekers receive the payment, provided they meet the qualification and payability criteria.

Division 2 - Rate of remote engagement program payment  

44.   New section 661E allows the Minister to determine the rate of the remote engagement program payment by legislative instrument, subject to specified maximum and minimum limits. The Minister’s power to make a legislative instrument under proposed subsection 661E(2) is discretionary. Subsection 661E(3) specifies that the Minister may determine a maximum fortnightly rate of not more than $190 and a minimum fortnightly rate of not less than $100. This will allow flexibility in determining the rate of the remote engagement program payment to incorporate feedback from co-design process.

 

Division 3 - Miscellaneous matters

 

45.   New section 661F provides that if the person undertakes an activity in accordance with a remote engagement placement under the remote engagement program, then the person is not to be taken—merely because of that participation—to be an employee or worker doing work for the Commonwealth for the purposes of the Work 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.

46.   This is consistent with existing provisions in the social security law applying to participants in the remote engagement program that are not in an remote engagement placement. If the person participates in an activity in a remote engagement placement, then this provision will apply in connection with that participation, regardless of whether or not the participation is required in accordance with a term of an employment pathway plan.

47.   This section reflects a longstanding view that jobseeker participation in activities under a Commonwealth employment program whilst in receipt of income support payments does not constitute an employment relationship. It is also based on a commonly held view that Australian governments may, where reasonable, require certain social security recipients to participate in activities that promote their well-being and enhance their employment prospects.

Social Security (Administration) Act 1999

 

Item 8 - After section 12AF

48.   This item inserts a new section 12AG after existing section 12AF of the Social Security (Administration) Act. The new section provides that a participant in the remote engagement placement is not required to make a claim for their remote engagement program payment. Instead, the payment will be made as an add-on to the person’s existing income support payment (provided they otherwise meet the qualification and payability criteria for the remote engagement program payment set out in Part 2.13 of the Social Security Act).

Part 2—Contingent amendments relating to the remote engagement program payment

Item 9 - Subsection 661B(1) (table)

49.   Item 9 is a contingent amendment to the Social Security Act to give effect to the proposed amendments in item 7 of this Bill which inserts new subsection 661B(1).In the event that the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2021 commences before the commencement of this Bill, item 9 will repeal and substitute subsection 661B(1) under item 7.

50.   Schedule 1 to the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2021 amends the Social Security Act to streamline participation requirements relating to income support payments, such as:

·                 disability support pension;

·                 parenting payment;

·                 youth allowance; and

·                 jobseeker payment.

51.   This item reflects the kinds of payments that are qualifying remote income support payments and the relevant qualification requirements for each payment, as amended by the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2021.

52.   However, if that Act commences after the commencement of this Bill, this amendment will fail due to the provisions relating to participation requirements of the relevant qualifying remote income support payments in that Act not commencing. This item will only commence if Schedule 1 to the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2021 commences before this Bill.

Part 3—Main amendments relating to the end of the CDEP Scheme

53.   Part 3 of Schedule 1 will repeal certain provisions in the social security law that establish or refer to the Community Development Employment Project (CDEP) Scheme and the Northern Territory CDEP transition payment. The provisions are spent and should be removed from the statute books to avoid confusion over their status. The  Age Discrimination Act 2004 (the Age Discrimination Act) also requires consequential amendments to repeal a provision that will become redundant as a result of the amendments made by this Part.

Age Discrimination Act 2004

Item 10 - Subsection 41(3)

54.   Item 10 repeals subsection 41(3) of the Age Discrimination Act. This amendment is consequential to the removal of the CDEP Scheme from the social security law. There will no longer be any need for the Age Discrimination Act to clarify that Part 4 of that Act does not make unlawful anything done by a person in direct compliance with the CDEP Scheme (within the meaning of the Social Security Act).

Social Security Act 1991

Items 11 to 17 - Sections 17 and 19 and subsection 23(1)

55.   Items 11 to 17 will repeal or amend the definition of terms in sections 17, 19 and 23 of the Act that refer, or otherwise relate, to the CDEP Scheme or CDEP Scheme payments or the Northern Territory CDEP transition payment.

Item 18 - Sections 408CG and 408GI

56.   This item will repeal sections 408CG and 408GI which provide that widow allowance must take account of CDEP Scheme payments (These provisions are currently redundant in social security law as the widow allowance ceased to be available to new recipients after March 2020).

Item 19 - Paragraph 500E(1)(c)

57.   This item will amend paragraph 500E(1)(c), which relates to qualification for parenting payment, to remove the reference to a person who is a CDEP Scheme participant as this is no longer required due the amendments made by this Part.

Item 20 - Section 500W

58.   This item will repeal section 500W of the Social Security Act, which provides that the maximum basic rate of the parenting payment and remote area allowance is not payable to a person who is a CDEP Scheme participant (as this provision is redundant).

 

 

Items 21 and 22 - Subdivision C of Division 4 of Part 2.10 and Subdivision D of Division 9 of Part 2.10

59.   Items 21 and 22 will repeal Subdivision C of Division 4 and Subdivision D of Division 9 of Part 2.10 of the Social Security Act. These existing subdivisions relate to the accumulation of the parenting payment by, and bereavement payments that may have become payable in respect of, a CDEP Scheme participant. Given that this Part removes references to ‘CDEP Scheme’, these existing subdivisions are no longer required. Relevantly, references to bereavement payments are currently redundant in social security law as this allowance ceased to be available to new recipients after March 2020.

Items 23 to 24 - Paragraphs 540(a) and 546(1)(c) and sections 552C, 559J and 567F

60.   Items 23 to 24 will consequentially amend the youth allowance provisions in Part 2.11 of the Social Security Act reflecting that there are no CDEP Scheme participants and so the Act does not need to specify these persons as qualifying for the payment or subject to particular rules.

Item 25 - Subsection 578(3)

61.   Item 25 will repeal subsection 578(3) relating to the austudy payment in Part 2.11A of the Social Security Act so that the multiple exclusion entitlement provision no longer refers to CDEP Scheme participants.

Items 26 - 29  - Paragraph 593(1)(a), section 598, paragraph 600(1)(c), sections 614A, 653A, 660LG, 771HK and 771KN

62.   Items 26 to 29 will remove redundant references to CDEP Scheme participants with respect to the jobseeker payment in Part 2.12 of the Act.

63.   Item 26 amends the jobseeker payment qualification criteria.

64.   Item 27 makes a consequential amendment to section 598, which deals with liquid assets waiting periods for qualified persons.

65.   Item 28 makes a consequential amendment to paragraph 600(1)(c) which deals with qualification for jobseeker payment.

66.   Item 29 repeals sections 614A, 653A and 660LG which, respectively, relate to the non-payability of the maximum basic rate and remote area allowance, the accumulation of payments and bereavement payments for jobseeker payment recipients.

67.   Item 29 will also repeal section 771HK and 771KN of the Act, which relate to Partner Allowance under Part 2.15A of the Act. These provisions relate to the non-payability of the maximum basic rate and remote area allowance to, and the accumulation of those payments for, CDEP Scheme participants.

Item 30 - Subdivision D of Division 9 of Part 2.15A

68.   Item 30 repeals Subdivision D of Division 9 of Part 2.15A of the Act which deals with the calculation of bereavement payments to partner allowance recipients in respect of a CDEP Scheme Participant, and is no longer needed.

Items 31 to 36 - Subsection 1049(2), Paragraph 1061EM(2)(b), Subsections 1061EN(1),  1061EN(2), 1061EX(7), 1061JU(1), (2) and (3)

69.   Items 31 to 36 repeal or amend the following provisions to remove references to CDEP Scheme participation with respect to:

·                 subsection 1049(2) dealing with language, literacy and numeracy supplement which was not payable to persons for whom a CDEP Scheme Participant Supplement was payable for the fortnight;

·                 sections 1061EM, 1061EN and 1061EX, which relate to special employment advance payments for persons receiving qualifying payments; and

·                 section 1061JU, which relates to crisis payment.

Item 37 - Part 2.27

70.   Item 37 will repeal Part 2.27 of the Act, which provides that the Northern Territory CDEP transition payment is now spent.

Items 38 to 46 - Points 1067G-A1, 1067G-B1, 1068-A1, 1068-B1, Points 1068B-A2 and 1068B-A3, 1068B-C2 and 1068B-C3

71.   Items 38 to 46 will remove redundant references to CDEP Scheme participants in the Youth Allowance Rate Calculator in section 1067G (which is applied to determine the rate of youth allowance) and Benefit Rate Calculator B in section 1068B (which is applied to determine rates of widow allowance, jobseeker payment (over 18 years), partner allowance and mature age allowance under Part 2.12B).

Items 47 and 48 - Subsection 1161(6A) and Paragraph 1161A(1)(a)

72.   Item 47 and 48 will amend subsection 1161(6A) and paragraph 1161(1)(a) to omit references to CDEP in the compensation recovery provisions in Part 3.14 of the Act. This reflects the removal of a reference to CDEP Scheme Participant Supplement from the definition of ‘compensation affected payment’ in subsection 17(1) of the Act.

Item 49 - Part 3.15A

73.   This item will repeal Part 3.15A of the Act, which provided the statutory basis for the CDEP Scheme and payment of the CDEP Participant Supplement.

Social Security (Administration) Act 1999

Items 50 and 51- Paragraphs 52(1)(k) and 52(1)(l)

74.   Items 50 and 51 remove ‘Northern Territory CDEP transition payment’ from subsection 52(1) of the Act, which relates to the timing of payment instalments to persons who are overseas when receiving specified payments.

Item 52 - Paragraph (r) of the definition of category I welfare payment

75.   Item 52 repeals paragraph (r) of the definition of ‘category I welfare payments’ , which specifies the transition payment as a trigger payment for the purposes of certain Income Management provisions in the Social Security (Administration) Act.

Item 53 - Paragraph 144(daa)

76.   Item 53 repeals paragraph 144(daa), which provides that certain decisions relating to the transition payment are not-reviewable by the Administrative Appeals Tribunal.

Item 54 - Subclause 1(1) of Schedule 1 (paragraph (j) of the definition of social security periodic payment)

77.   Item 54 removes the transition payment from paragraph (j) of the definition of ‘ social security periodic payment’ .

 

 

Part 4—Contingent amendments relating to the end of the CDEP Scheme

78.   Part 4 contains contingent amendments to the Social Security Act. The amendments are contingent in the sense that the items will only commence if Part 3 of this Bill is enacted and commences before Schedule 1 to the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2021 comes into force (which is aimed at streamlining participation requirements for certain income support payments). If this occurs, the measures explained below will commence at the same time as Part 3 of this Bill.

Item 55 - Paragraph 540(a)

79.   This item would repeal paragraph 540(a) of the Social Security Act, which relates to the general qualification rule for youth allowance, and substitutes it with a new paragraph (a) which removes the reference to the person being a CDEP Scheme participant in respect of the applicable qualifying period.

Item 56 - Paragraph 593(1)(b)

80.   This item would consequentially amend the general qualification criteria for jobseeker payment in subsection 593(1)(b) of the Social Security Act to reflect the change to paragraph 593(1)(a) made by item 26 of Part 3 of the Bill.

Item 57 - Paragraph 602D(a)

81.   This item makes a consequential change to paragraph 602D(a) of the Social Security Act to reflect the revision to paragraph 593(1)(b) made above.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

 

SOCIAL SECURITY LEGISLATION AMENDMENT (REMOTE ENGAGEMENT PROGRAM) BILL 2021

 

1.  This 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.

 

PURPOSE AND OBJECTIVES

2. The Social Security Legislation Amendment (Remote Engagement Program) Bill 2021 (Bill) will provide a framework for piloting new approaches to delivering employment services in remote communities, ahead of implementing the Government’s Budget announcement that the Community Development Program (CDP) will be replaced in 2023.

 

3. This Bill supports collaboration with communities to develop an appropriately flexible program that will build the skills and vocational capabilities of people in remote communities.  Many of the more detailed aspects of the approach will be set out in legislative instruments and policy guidance, allowing flexibility to adjust as lessons are learnt and communities’ ideas change over the course of the pilots.

 

4. The Bill introduces a new supplementary payment (new payment) to be made to eligible job seekers in remote engagement program pilot communities so they can engage in activities or placements that are like having a job. The placements will build participants’ skills in roles that will deliver goods or services to benefit local communities and provide a pathway for jobseekers to find a job.

 

5. The pilots will be co-designed in partnership with a number of remote communities ahead of 2023. The new payment will be one aspect communities can trial alongside other approaches to training, skills development and non-vocational support as they co-design the remote engagement program. 

 

6. Lessons learned from the pilot sites will inform the design of the new program to be rolled out in 2023. Initially, we estimate around 200 eligible job seekers in the pilot sites will volunteer for the payment.

 

7. The Government is committed to co-designing the pilots with communities, and believes this will be critical to their success. It is important that there is capacity to trial different approaches in different sites. To give effect to the Government’s commitment to work in partnership with Indigenous communities, the Bill sets out the basic parameters of the payment, with other elements such as the qualification criteria and the exact rate of payment to be set out in detail in subordinate legal instruments and policy guidance. These legislative instruments will be informed by the outcomes of a co-design process in the pilot sites.

 

8. The Government will take the time to work together and listen to communities in the pilot sites about what they think could work in their community in relation to the amount of payment to be provided, the hours of engagement to be undertaken in return and what eligible job seekers are required to do to continue to receive the payment. This will also better allow for adjustments during the pilots as lessons are learned. The Bill provides that the payment will be time-limited, meaning that the legislation will need to be revisited ahead of the national roll out of the new remote engagement program. This will ensure continuing Parliamentary scrutiny.

 

9. The new payment will be paid at a fixed fortnightly rate and will be additional to certain primary income support payments and other supplements for eligible job seekers. The new payment will not be subject to the income test in the Social Security Act 1991.

 

10. The aim is for an eligible job seeker’s income support plus the new payment to be approximately equivalent to the minimum wage for the hours participating in work like activities. Eligible job seekers will voluntarily participate in a role in government services or a community organisation for between 15 and 18 hours per week building important skills and experience. The placements will not be a job, but will aim to give job seekers experience that will enable transition to paid employment. The payment will not be at a level high enough that people avoid taking up paid employment opportunities. The pilots provide an opportunity to test the level of incentives.

 

Human rights implications

11. This Bill engages the following human rights:

  • Right to work: Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
  • Right to social security : Article 9 of the ICESCR.
  • Right to an adequate standard of living : Article 11 of the ICESCR.
  • Right of equality and non-discrimination : Article 2 of the ICESCR, Articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR), Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and Article 5 of the Convention on the Rights of Persons with Disabilities (CRPD).
  • Right of persons with disabilities to work on an equal basis with others : Article 27 of the CRPD.

 

Right to work

12. Article 6(1) of the ICESCR recognises the right of everyone to work, including the opportunity to gain their living by work which they freely choose or accept. Article 6(2) of the ICESCR further provides that the progressive realisation of this right by States includes implementing technical and vocational guidance and training program, and policies which facilitate full and productive employment.

 

13.   The measures included in this Bill will strengthen existing incentives for remote jobseekers to actively engage with Commonwealth employment programs, which in turn will improve their skills and assist jobseekers to transition to, and remain in, paid work in the open labour market. The measures in this Bill will in particular provide these opportunities to jobseekers in remote communities that face complex employment challenges. The Bill therefore advances the right to work.

 

 

 

Right to social security and right to adequate standard of living

14.   Article 9 of the ICESCR recognises the right of everyone to social security, including social insurance. Article 11(1) of the ICESCR recognises the right of everyone to have an adequate standard of living for themselves.

 

15.   The United Nations Committee on Economic, Social and Cultural Rights (the ESCR Committee) has stated that the right to social security is of ‘central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realise their Covenant rights ’. [1] The ESCR Committee further noted that the right to social security encompasses the right to access and maintain benefits, and must be sufficient to afford an adequate standard of living . [2]

 

16.   The Bill advances the right to social security by ensuring that the changes to legislation do not affect a person’s other entitlements under social security law. For remote engagement program payment recipients, the changes proposed by the Bill will allow individuals to continue receiving their usual income support payments, as well as any supplementary payments or allowances payable to them. By establishing the remote engagement program payment, the Bill further increases the social security benefits to participants in the remote engagement placement . This allows those individuals to improve their standard of living while encouraging them to accept paid work. The Bill therefore advances the rights to social security and an adequate standard of living.

                                                                                                               

Rights of equality and non-discrimination

17.   The rights of equality and non-discrimination are contained in Articles 2, 3, 16 and 26 of the ICCPR, Article 2 of the ICESCR, Article 5 of the CERD and Article 5 of the CRPD. These rights recognise that all human beings have the right to be treated equally and not to be discriminated against.

 

18.   The Bill advances the rights of equality and non-discrimination by ensuring that jobseekers living in remote regions and who are eligible to receive the remote engagement program payment have opportunities to enhance their employment prospects through hosted placements and training, which in turn build their skills and employability.

 

19.   The application of these measures in remote Australia is designed to overcome the inherent imbalance in employment opportunities and consequential disadvantage experienced in parts of remote Australia. The Bill is therefore necessary to promote equality through elevating the situation of persons in remote Australia to a standard comparable with their counterparts living in non-remote regions.

 

Right of persons with disabilities to work on an equal basis with others

20.   Article 27 of the CRPD recognises the right of persons with disabilities to work, on an equal basis with others. This includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and environment that is open, inclusive and accessible to person with disabilities.

 

21.   The Bill advances the right of persons with disabilities to work on an equal basis with others by enabling qualifying jobseekers to engage in activities or placements that enhance their prospects of securing a job. Persons who are receiving a disability support pension as their underlying income support payment, and who receive employment support services from a remote engagement program provider , can also qualify for a remote engagement program payment.

Conclusion

22.   The amendments are compatible with human rights because they promote rights to social security, an adequate standard of living, to work and are consistent with the right to equality and non-discrimination. To the extent (if any) that they may limit human rights, those limitations are reasonable, necessary and proportionate.




[1] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 19: The right to social security (Art. 9 of the Covenant) , 4 February 2008, E/C.12/GC/19 at [1].

[2] Ibid, at [2], [22].