Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Social Security Legislation Amendment (Community Development Program) Bill 2018

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

 

 

 

2016-2017-2018

 

 

 

 

 

THE P A R L I A M ENT O F THE C O MM ON W E A L TH O F A U S T R A L I A

 

 

 

 

 

 

THE SENATE

 

 

 

 

 

 

SOCIAL SECURITY LEGISLATION AMENDMENT (COMMUNITY DEVELOPMENT PROGRAM) BILL 2018

 

 

 

 

 

EX P L A N AT O R Y M E M O R A NDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

( Ci rc u l a t e d b y t he a u t h or i t y of t he M i n i s t e r f o r Indigenous Affairs , S e n a t or t he H on Nigel Scullion)



T a b l e o f a bb r e v i a t io ns a nd c o mm o n ter m s

 

A bb re v i a t i on or

c o m m on te r m

Description

CDP

Community Development Programme

DSP

Disability Support Pension

Social Security Act

Means the Social Security Act 1991 (Cth)

Social Security Administration Act

means the Social Security (Administration) Act 1999 (Cth)

TCF

Targeted Compliance Framework

 



Social Security Legislation Amendment (Community Development Program) Bill 2018

 

Context

 

1.       The Social Security Legislation Amendment (Community Development Program) Bill 2018 (the Bill) will amend the Social Security Act and the Social Security Administration Act to support the reforms to the Community Development Programme (CDP) and introduce the Targeted Compliance Framework (TCF) to CDP regions, consistent with arrangements in the rest of Australia.

 

2.       The CDP is the remote employment service that supports participants in remote Australia to build skills, address barriers and contribute to their communities through a range of flexible activities. It is designed around the unique social and labour market conditions found in remote Australia.

 

3.       The CDP supports participants in receipt of a participation payment in meeting their activity test or participation requirements, through Newstart Allowance, Youth Allowance (other), Parenting Payment (subject to participation requirements), Special Benefit (nominated visa holders) and the Disability Support Pension (DSP).

 

4.       On 8 May 2018, the Minister for Indigenous Affairs, Senator the Hon Nigel Scullion, announced reforms to the CDP as part of the 2018-19 Budget. These reforms are designed to increase support for the most vulnerable job seekers, while assisting them to transition from welfare into work. Communities will have a greater say in how CDP is delivered locally.

 

5.       As part of these reforms, it was announced that CDP participants will be subject to the TCF which commenced for regional and urban Australia from 1 July 2018. This will ensure that, after the commencement of the Bill, CDP participants will be subject to the same compliance framework, no matter where they live.

 

6.       The introduction of the TCF will remove penalties that CDP participants receive for one-off breaches of mutual obligation requirements. Financial penalties will focus on those who are persistently and wilfully non-compliant.

 

7.       The TCF will ensure additional protections for all CDP participants, and build in more check points to ensure they are fully capable of meeting their requirements. To assist CDP participants in meeting their requirements, mutual obligation hours will be reduced from up to 25 hours per week, to up to 20 hours per week, depending on a job seeker’s assessed work capacity. There will be a greater role for local CDP providers to work with CDP participants in the application of the TCF and there will be less interaction with Centrelink compared with the current framework.

 

8.       Alongside the application of the TCF, the reforms include a number of changes to increase the role of local health service providers to support participants in their communities. Changes include provision for local health workers to supply evidence for the Department of Human Services to use when deciding whether to reduce a participant’s mutual obligation hours. Overall, these changes will decrease interactions with the income support system.

 

9.       In addition, the Government will work with local communities to support 6,000 subsidised jobs in remote Australia. These jobs will only be available to CDP participants and will grow the size and capacity of the remote labour market and support the development of more local businesses. The subsidised jobs package is part of a pathway to employment and is intended to enable participants to experience what it is like to work in a real job, and develop further skills and experience, while still accessing a level of support from employers and CDP providers.

 

10.   These jobs will provide meaningful employment, and participants will be subject to the same pay and conditions that would otherwise be attached to that position. This includes being subject to any rights and responsibilities that may apply under employment law. Many participants who are placed in these jobs will continue to qualify for a reduced rate of their income support payments after the applicable income test is applied.

 

11.   Participants in subsidised employment may require additional support in making the next step into employment. To ensure participants have the best opportunity to succeed in their new workplace, they will be exempt from the compliance framework and some other social security law requirements. This aims to normalise the employment relationship, as a participant’s actions in the workplace will be dealt with under relevant workplace relations mechanisms rather than through the social security compliance framework.

 

12.   Participants in subsidised employment will be exempt from activity test requirements and will not incur mutual obligation failures under the TCF. This will allow these participants to focus solely on their subsidised employment without needing to satisfy additional obligations attached to their part-rate income support payment if applicable and, in response to feedback from stakeholders, minimises the participants’ engagement with the income support system. This will seek to emulate one of the positive aspects of the Community Development Employment Projects (CDEP) where participants were paid wages outside the income support system.

 

13.   Entry into a subsidised job will be voluntary. Therefore, CDP participants who refuse an offer of subsidised employment will not incur a work refusal failure. This provides CDP participants with the freedom to determine whether the subsidised employment opportunity available suits their personal commitments, career aspirations, skills and experience. CDP participants will continue to have appropriate job search requirements as part of their mutual obligation requirements, as determined by their provider.

 

14.   Similarly, participants in subsidised employment will not be subject to a work refusal failure if they refuse an offer of suitable unsubsidised employment.

 

15.   Participants in subsidised employment will also not be subject to an unemployment failure if they voluntarily leave their position, or are dismissed due to misconduct. This approach provides participants with the opportunity to leave subsidised employment without penalty if, after commencement in the position, they determine the role is not suitable for them or their personal circumstances (for example, due to relocation or family violence). As each subsidised position is funded for two years, this will also free up the subsidised job opportunity for a job seeker who may be better suited to the role.

 

16.   Participants who voluntarily leave a job, or who are dismissed due to misconduct, re-enter the CDP and would then be subject to the TCF. In order to prevent participants regularly cycling through subsidised job opportunities, a job seeker will be prevented from entering into another subsidised job for six months.

 

17.   All CDP participants will continue to have access to the reasonable excuse provisions under a legislative instrument made by the Secretary under section 42AI of the Social Security Administration Act due to the lack of availability of drug and alcohol rehabilitation services in remote Australia. A reasonable excuse will extend to the circumstances where the failure to meet mutual obligation requirements is due to drug or alcohol misuse or dependency.

 

Summary

 

18.   The Bill will amend the Social Security Act and the Social Security Administration Act to support the implementation of the TCF for CDP participants in remote Australia, with the exception of CDP participants undertaking subsidised employment, who will not be subject to the activity test or mutual obligation requirements.

 

19.   Subject to passage through Parliament and Royal Assent, the operative provisions of the Bill will commence on a date to be fixed by Proclamation. While it is the Government’s intention that the provisions in this Bill will commence from February 2019, commencing on a date to be fixed by Proclamation will provide the Government with the flexibility to set a commencement date if the passage of the Bill is delayed and additional time is needed to ensure all transitional requirements are in place.

 

20.   The Bill will:

·          Repeal provisions which, in effect, currently exclude CDP participants from the TCF;

·          Repeal the current compliance framework contained in Division 3A of Part 3 of the Social Security Administration Act;

·          Insert exemptions for CDP participants undertaking subsidised employment under the CDP reforms who are still in receipt of the Newstart Allowance, Youth Allowance, DSP, Special Benefit or Parenting Payment. This will ensure that participants undertaking subsidised employment will not be subject to mutual obligation requirements. These exemptions will only apply whilst they are in a subsidised job;

·          Create exceptions to mutual obligation failures for participants in a subsidised job;

·          Create exceptions to work refusal failures for CDP participants who refuse a subsidised job and participants in a subsidised job who refuse other types of employment; and

·          Create exceptions to unemployment failures for CDP participants who voluntarily leave a subsidised job without a valid reason, or are dismissed from a subsidised job for misconduct .

F i n a n cial I mp a c t S t a t e m e nt

 

21.   There is no net financial impact arising from the legislation.

 

Statement of Compatibility with Human Rights

 

22.   The Statement of Compatibility with Human Rights appears at the end of this explanatory memorandum.



Social Security Legislation Amendment (Community Development Program) Bill 2018

 

N ot e s o n clauses

 

N ot e : The clauses in the B ill w ill b ec ome s e c tionsof the Ac t on R o y a l A ss e nt.

 

Clause 1 - Sh o r t ti t l e

 

23.   Clause 1 p r ov i d e s f or t h e Bill, once enacted, t o be c it e d a s t he Social Security Legislation Amendment (Community Development Program) Act 2018 .

 

Clause 2 - Commencement

 

24.   Clause 2 inserts a table setting out commencement information for various provisions in the Act. Each provision of the Act specified in column 1 of the table commences (or is taken to have commenced) in accordance with column 2 of the table and any other statement in column 2 has effect according to its terms.

 

25.   The table has the effect of providing that:

 

a.        Sections 1 to 3 and anything in the Act not elsewhere covered by the table in subclause 2(1) is to commence on the day the Act receives the Royal Assent.

 

b.       Schedule 1, Parts 1 and 2 will commence on a single day to be fixed by Proclamation. If no Proclamation is made to commence Schedule 1, Parts 1 and 2 within 6 months from the day the Act receives the Royal Assent, Parts 1 and 2 commence on the day after the end of that period.

 

c.        Schedule 1, Part 3, Division 1 will commence at the same time as the provisions covered by paragraph b above. However, the provisions do not commence at all if separate specified legislation commences before that time (in which case Schedule 1, Part 3, Division 2 will operate).

 

d.       Schedule 1, Part 3, Division 2 will commence immediately after the commencement of the provisions covered in paragraph b. However, the provisions do not commence at all unless separate specified legislation commences before that time (in which case Schedule 1, Part 3, Division 1 will operate).

 

e.        Schedule 1, Part 4 will commence at the same time as the provisions covered in paragraph b above.

 

26.   While it is the Government’s intention that the provisions in this Bill will commence from February 2019, commencing on a date to be fixed by Proclamation will provide the Government with the flexibility to set a commencement date if the passage of the Bill is delayed and additional time is needed to ensure all implementation requirements are in place, depending on the needs and views of communities. The Department of the Prime Minister and Cabinet, with assistance from the Department of Jobs and Small Business and the Department of Human Services, will ensure that the commencement date is clearly communicated to CDP participants and service providers.

 

Clause 3 - Schedules

 

27.   Clause 3 p r ov i d e s t h a t e ac h Ac t sp e c i f i e d i n a Sc h e du l e t o t h e Bill i s a me nd e d or re p ea l e d as s e t out i n t hat S c h e du l e.



S ch e d u l e 1 - Amendments

 

Part 1 - Main amendments

 

Social Security Act 1991

 

28.   I t e m 1 inserts a definition of subsidised employment into subsection 23(1). This definition will be included in section 42AEA of the Social Security Administration Act (see item 26). It is the Government’s intention that subsidised employment will be defined through a legislative instrument under section 42AEA. This instrument will refer to the policy governing the 6,000 subsidised jobs.

 

29.   Item 2 amends subsection 94A(2) to include a reference to section 94G (outlined in item 3). The effect of this is that where an individual is covered by an exemption in section 94G they are not required to comply with any participation requirements for a DSP (as outlined in subsection 94A(1)).

 

30.   Item 3 inserts a new section 94G. Section 94G provides an exemption for individuals receiving a DSP from the participation requirements under subsection 94A(1) where the DSP recipient is a declared program participant and in subsidised employment (see item 1). The practical effect of this provision is that if a CDP participant enters into subsidised employment, and is still in receipt of a DSP, they will not be required to undertake any additional participation requirements under CDP.

 

31.   Item 4 amends the heading to section 501E to omit the words “in cases of domestic violence etc.”. This is a presentational change to more clearly reflect that several different participation exemptions are referred to in section 501E including cases of domestic violence (section 502C) and a declared program participant in subsidised employment (new section 502L - see item 6).

 

32.   Item 5 amends section 501E to include a reference to section 502L (see item 6). The effect of this is that the Parenting Payment Employment Pathway Plans of individuals receiving a Parenting Payment who are covered by the participation exemption in section 502L will be suspended for the time that the exemption is applicable. The practical effect of this provision will ensure that CDP Providers will not need to manually revise an individual’s Parenting Payment Employment Pathway Plan once that individual enters into subsidised employment.

 

33.   Item 6 inserts a new section 502L. Section 502L provides a participation exemption for individuals receiving a Parenting Payment, where the Parenting Payment recipient is a declared program participant and is in subsidised employment (see also items 1 and 5). The provision gives effect to the policy intention that if a CDP participant is in subsidised employment, and still in receipt of a Parenting Payment, they will not be required to undertake any additional participation requirements under CDP.

 

34.   Item 7 inserts a new paragraph 542(g). This provides that an individual receiving Youth Allowance will not be required to satisfy the activity test while th ey are covered by a subsidised employment exemption under section 542J (see item 8). The provision (along with Item 8) gives effect to the policy intention that if a CDP participant is in subsidised employment, and still in receipt of Youth Allowance, they will not be required to undertake any additional activity requirements under CDP.

 

35.   Item 8 inserts a new section 542J. Section 542J provides a subsidised employment exemption for individuals receiving Youth Allowance, where the Youth Allowance recipient is a declared program participant and in subsidised employment (see also items 7 and 9).

 

36.   Item 9 inserts a new paragraph 544A(2)(bc). The effect of this is that where an individual is covered by a subsidised employment exemption under section 542J (see item 8) they are not required to enter into a Youth Allowance Employment Pathway Plan.

 

37.   Item 10 inserts a new paragraph 544E(c). The effect of this is that where an individual is covered by a subsidised employment exemption under section 542J (see item 8), any Youth Allowance Employment Pathway Plan that an individual has in place is suspended. This provision will ensure that CDP Providers will not need to manually revise an individual’s Youth Allowance Employment Pathway Plan once that individual enters subsidised employment.

 

38.   Item 11 amends note 1 to subsection 601(1) to include paragraph (aa) which is a reference to section 602BA (see item 12).

 

39.   Item 12 inserts a new section 602BA. This section provides relief from the activity test for those individuals receiving a Newstart Allowance who are declared program participants in subsidised employment (see item 1). The practical effect of this provision (along with item 13) is if a CDP participant is in subsidised employment, and still in receipt of Newstart allowance, they will not be required to undertake any additional activity test requirements under CDP.

 

40.   Item 13 amends subsection 605(2C) to include a reference to section 602BA. The effect of this is an individual will not be required to enter into a Newstart Allowance Employment Pathway Plan at a time during which, in accordance with section 602BA (see item 12) the individual is not required to satisfy the activity test.

 

41.   Item 14 amends the heading to section 607C to omit the words “in cases of domestic violence etc.”. This is a presentational change to more clearly reflect that several different circumstances in which a person is not required to satisfy the activity test are referred to in section 607C. These circumstances include cases of domestic violence (section 602B) and a declared program participant in subsidised employment (new section 602BA - see item 12).

 

42.   Item 15 amends section 607C to include a reference to section 602BA. The effect of this is that any period during which an individual is not required to satisfy the activity test under section 602BA (see item 12), any Newstart Allowance Employment Pathway Plan they have in place is suspended . The provision will ensure that CDP Providers will not need to manually revise an individual’s Newstart Allowance Employment Pathway Plan once that individual enters subsidised employment.

 

43.   Item 16 inserts a new section 731KB. This section provides relief from the activity test for those individuals receiving Special Benefit to whom the criteria in section 731 applies, and who are declared program participants in subsidised employment (see item 1). This provision (along with item 17) gives practical effect to the policy intention that a CDP participant is in subsidised employment, and receiving Special Benefit, they will not be required to undertake any additional activity test requirements under CDP.

 

44.   Item 17 amends subsection 731L(3) to include a reference to section 731KB (see item 16). The effect of this is that certain individuals receiving Special Benefit (see section 731 of the Social Security Act) will not be required to enter into a Special Benefit Employment Pathway Plan if they are not required to satisfy the activity test in accordance with section 731KB.

 

45.   Item 18 amends the heading to section 731R to omit the words “in cases of domestic violence etc.”. This is a presentational change to more clearly reflect that several different circumstances in which a person is not required to satisfy the activity test are referred to in section 731R. These circumstances include cases of domestic violence (section 731DA) and a declared program participant in subsidised employment (new section 731KB - see item 16).

 

46.   Item 19 amends section 731R to include a reference to section 731KB (see item 16). The effect of this is that where an individual has a Special Benefit Employment Pathway Plan in place and they are not required to satisfy the activity test in accordance with section 731KB (see item 16), any applicable Special Benefit Employment Pathway Plans they have in place will be suspended . This provision will ensure that CDP Providers will not need to manually revise an individual’s Special Benefit Employment Pathway Plan once that individual enters subsidised employment.

 

Social Security (Administration) Act 1999

 

47.   Item 20 repeals section 42AB. The effect of this is that Division 3AA of Part 3 of the Social Security Administration Act is applicable to declared program participants. The practical effect of repealing this section is that CDP participants will be subject to the TCF.

 

48.   Item 21 inserts a new subsection 42AC(5). This subsection provides that an individual does not commit a mutual obligation failure if the person is a declared program participant and the relevant failure or action by the individual occurs whilst they are in subsidised employment. This provision further clarifies that participants in subsidised employment will be exempt from mutual obligation failures under the TCF. Attendance and behaviour at work will be managed separately by the employer through appropriate workplace relations mechanisms rather than by being managed by the CDP provider or the Department of Human Services through the social security job seeker compliance framework.

 

49.   Item 22 amends section 42AD to include the existing text as a subsection (1).

 

50.   Item 23 inserts new subsections 42AD(2) and (3). Subsection 42AD(2) provides that an individual does not commit a work refusal failure where the individual is a declared program participant and refuses or fails to accept an offer of subsidised employment (see item 26). This recognises that entry into the subsidised employment program is voluntary, and provides CDP participants with the opportunity to choose subsidised employment that fits their skills, experience and personal circumstances.

 

51.   Subsection 42AD(3) outlines that an individual does not commit a work refusal failure where the individual is a declared program participant, is in subsidised employment and refuses or fails to accept an offer of other suitable (unsubsidised) employment.

 

52.   Item 24 inserts a new heading before subsection 42AE(3) to clarify that subsections 42AE(3) and (4) are circumstances where an individual does not commit an unemployment failure (see item 25).

 

53.   Item 25 inserts a new subsection 42AE(4). This subsection outlines that an individual does not commit an unemployment failure if they are a declared program participant and become unemployed from subsidised employment as a result of a voluntary act or misconduct . This will provide participants with the opportunity to leave subsidised employment without penalisation if, after commencement in the position, they determine the role is not suitable for them or their personal circumstances. As each subsidised position is funded for two years, this will also free up the subsidised employment opportunity for a CDP participant who may be better suited to the role. However, in order to prevent participants regularly cycling through subsidised employment opportunities, upon re-entry into CDP after voluntarily leaving a subsidised position, a participant will be prevented from entering into another subsidised employment position for six months.

 

54.   Item 26 inserts a new section 42AEA. Subsection 42AEA(1) provides that subsidised employment means employment in relation to which a subsidy of a kind prescribed in subsection 42AEA(2) is payable or has been paid by the Commonwealth.

 

55.   Subsection 42AEA(2) provides that the Secretary of the Department administered by the Minister administering this Subdivision may, by legislative instrument, determine the kind of subsidy which is applicable for the purposes of the definition of subsidised employment in subsection 42AEA(1). It is the Government’s intention that policy governing the 6,000 subsidised jobs will be specified in the legislative instrument, and participants in these jobs will be exempt from additional mutual obligation requirements and the compliance framework under Division 3AA of Part 3. The Government is finalising the detail of the subsidised jobs package in consultation with communities and this will be reflected in the proposed legislative instrument made under subsection 42AEA(2). The ability to determine a kind of subsidy by legislative instrument will provide the Government with the flexibility to specify the subsidy arrangements at a later date.

 

56.   Subsection 42AEA(3) provides that any instrument made under subsection 42AEA(2) may also make provision in relation to the operation of Division 3AA of Part 3 in respect of a person who is a declared program participant who committed a mutual obligation failure, work refusal failure or unemployment failure prior to commencing in a subsidised job. It is the Government’s intention that any compliance action that incurred a financial penalty while an individual was in the CDP will continue to apply, with any financial penalties incurred deducted from their income support payment, even if they have subsequently commenced in a subsidised job. Subsection 42AEA(3) will allow the Secretary to clarify this position in an instrument made under subsection 42AEA(2).

 

57.   Item 27 repeals Division 3A of Part 3. This Division is now spent as CDP participants will now be subject to the TCF under Division 3AA of Part 3.

 

58.   Item 28 amends Schedule 1 to note that subsidised employment has the meaning given by section 42AEA (see item 26).

 

Part 2 - Consequential amendments

Farm Household Support Act 2014

 

59.   Item 29 repeals table items 32 and 33 within subsection 93(1). These items make reference to subsection 42P of the Social Security Administration Act which will be repealed along with the rest of Division 3A of Part 3 of the Social Security Administration Act (see item 27).

 

60.   Item 30 amends paragraph 98(c) to remove a reference to Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

Social Security Act 1991

 

61.   Item 31 amends subsections 14A(1) and (2) to remove references to Division 3A of Part 3 of the Social Security Administration Act which is repealed by item 27.

 

62.   Item 32 repeals subsection 14A(7). This subsection provided a definition of severe financial hardship for the purposes of Division 3A of Part 3 of the Social Security Administration Act which is repealed by item 27.

 

63.   Item 33 amends paragraph (aa) of the definition of compliance penalty period to remove reference to “a person other than a declared program participant” as a consequence of the operation of item 20.

 

64.   Item 34 repeals paragraph (a) of the definition of compliance penalty period as a consequence of the operation of item 27.

 

65.   Item 35 amends paragraphs (b) and (c) of the definition of compliance penalty period to omit the words ‘in any case’ as a consequence of the operation of items 33 and 34.

 

66.   Item 36 amends the note in section 549G to remove a reference to Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

 

67.   Item 37 amends the note in section 550E to remove a reference to Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

 

68.   Item 38 amends subparagraphs 729(2)(bd)(i),(ii) and (iii) to remove references to “persons other than declared program participants” as a consequence of the operation of item 20.

 

69.   Item 39 amends subparagraph 729(2)(bd)(iii) to include the word “and” at the end of the subparagraph as a consequence of item 40.

 

70.   Item 40 repeals subparagraphs 729(2)(bd)(iv) and (v). These subparagraphs contained references to subsections within Division 3A of Part 3 of the Social Security Administration Act which is repealed by item 27.

 

71.   Item 41 amends subparagraphs 729(2)(d)(i), (ii) and (iia) to remove references to “persons other than declared program participants” as a consequence of the operation of item 20.

 

72.   Item 42 repeals subparagraphs 729(2)(d)(iib) and (iic). These subparagraphs contained references to subsections within Division 3A of Part 3 of the Social Security Administration Act which is repealed by item 27.

 

73.   Item 43 amends subparagraphs 729(2)(dc)(iii), (iv) and (v) to remove references to “persons other than declared program participants” as a consequence of the operation of item 20.

 

74.   Item 44 repeals subparagraphs 729(2)(dc)(vi) and (vii). These subparagraphs contained references to subsections within Division 3A of Part 3 of the Social Security Administration Act which is repealed by item 27.

 

75.   Item 45 amends subparagraphs 1046(2)(b)(i) and (ii) to remove references to provisions in Division 3A of Part 3 of the Social Security Administration Act which is repealed by item 27.

 

76.   Item 46 amends subparagraphs 1046(2B)(b)(i), (ii) and (iia) to remove references to provisions in Division 3A of Part 3 of the Social Security Administration Act which is repealed by item 27.

Social Security (Administration) Act 1999

 

77.   Item 47 amends the heading of Division 3AA of Part 3 to remove the reference to persons other than declared program participants as a consequence of the operation of item 20.

 

78.   Item 48 amends section 42AA to remove a reference to “other than declared program participants” as a consequence of the operation of item 20.

 

79.   Item 49 amends paragraph 64(1A)(c) to remove the reference to a repealed subsection under Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

 

80.   Item 50 amends the note in subsection 80(1) to remove a reference to persons who are not declared program participants as a consequence of the operation of item 20.

 

81.   Item 51 repeals subparagraph 118(12C)(b)(i) as it pertained to Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

 

82.   Item 52 amends subparagraph 131(1)(aa) to remove a reference to persons other than declared program participants as a consequence of the operation of item 20.

 

83.   Item 53 repeals subsection 131(5A). This subsection refers to serious failure periods and unemployment non-payment periods. Both of these concepts pertained to Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

 

84.   Item 54 repeals paragraph 144(fa) as it pertained to Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

 

85.   Item 55 amends paragraph 145(1)(aa) to remove a reference to persons other than declared program participants as a consequence of the operation of item 20.

 

86.   Item 56 repeals subsection 145(4A). This subsection refers to serious failure periods and unemployment non-payment periods. Both of these concepts pertained to Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

 

87.   Item 57 amends paragraph 192(daa) to remove a reference to Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

 

88.   Item 58 amends Schedule 1 to repeal the definitions for connection failure, further reconnection requirement, non-attendance failure, no show no pay failure, penalty amount, reconnection failure and reconnection failure period. These definitions pertained to Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

 

89.   Item 59 amends Schedule 1 to modify the definition of reconnection requirement in order to remove the part of the definition which pertained to Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

 

90.   Item 60 amends Schedule 1 to repeal the definitions for serious failure, serious failure period, serious failure requirement and unemployment non-payment period. These definitions pertained to Division 3A of Part 3 of the Social Security Administration Act which is repealed by item 27.

 

91.   Item 61 repeals subclause 5(1B) of Schedule 2 and provides a new substitute. The revised wording removes references to Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27 and is a consequence of the operation of item 20.

 

92.   Item 62 amends paragraph 5A(1)(c) of Schedule 2 as a consequence of item 65.

 

93.   Item 63 amends subparagraph 5A(1)(c)(i) of Schedule 2 to remove a reference to persons other than declared program participants as a consequence of the operation of item 20.

94.   Item 64 amends subparagraph 5A(1)(c)(ii) of Schedule 2 to include the word “and” at the end of the subparagraph as a consequence of item 65.

 

95.   Item 65 repeals subparagraphs 5A(1)(c)(iii) and (iv) of Schedule 2. These provisions pertained to Division 3A of Part 3 of the Social Security Administration Act which is repealed by item 27.

 

96.   Item 66 amends paragraph 5A(2)(b) of Schedule 2 to omit “and” at the end of the paragraph as a consequence of item 67.

 

97.   Item 67 repeals paragraphs 5A(2)(c) and (d) of Schedule 2 as a consequence of item 65.

 

Part 3 - Contingent amendments

 

Division 1—First contingency

Social Security (Administration) Act 1999

 

98.   Item 68 repeals subparagraph 110A(b)(i). This provision pertained to Division 3A of Part 3 of the Social Security Administration Act which is repealed by item 27.

 

99.   Item 69 amends section 110A to remove references to provisions in Division 3A of Part 3 of the Social Security Administration Act which is repealed by item 27.

 

Division 2—Second contingency

Social Security (Administration) Act 1999

 

100.            Item 70 repeals subparagraph 110A(1)(b)(i). This provision pertained to Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

 

101.            Item 71 amends subsection 110A(1) to remove references to provisions in Division 3A of Part 3 of the Social Security Administration Act, which is repealed by item 27.

 

 



 

Part 4 - Application, saving and transitional provisions

 

102.            Item 72 outlines the application, saving and transitional provisions for the amendments proposed in the Bill.

 

103.            Subitem (1) provides that Division 3AA of Part 3 of the Social Security Administration Act will apply to any mutual obligation failure, work refusal failure or unemployment failure that is committed on or after the commencement of the item by a declared program participant.

 

104.            Subitem (2) outlines that (subject to sub items 3 to 5) any provisions of Division 3A that are in force immediately before the commencement of this item cease to apply at the commencement of this item even if a determination had been made under that Division.

 

105.            Subitem (3) outlines that where a participation payment was payable to a person (in accordance with section 42R of the Social Security Administration Act) prior to the commencement of this subitem then the repeal of Division 3A of Part 3 of the Social Security Administration Act does not affect the payability of the participation payment.

 

106.            Subitem (4) outlines:

 

a.        that where prior to the commencement of this item the Secretary made a determination under subsection 42SA(1) of the Social Security Administration Act which resulted in a participation payment not being payable to a person and that period had not ended before the commencement of this subitem; then

 

b.       the period is taken to end under subsection 42SA(2) and subsection 42SA(3) continues to apply in relation to the ending of that period.

 

107.            Subitem (5) outlines:

 

a.        that where prior to the commencement of this item the Secretary made a determination under subsection 42SB(2) of the Social Security Administration Act which resulted in a participation payment not being payable to a person and that period had not ended before the commencement of this subitem; then

 

b.       the period is taken to end under subsection 42SB(3) and subsection 42SB(4) continues to apply in relation to the ending of that period.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

SOCIAL SECURITY LEGISLATION AMENDMENT (COMMUNITY DEVELOPMENT PROGRAM) BILL 2018

Schedule 1 - Amendments

 

This Schedule 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 Schedule

This Schedule introduces reforms to the Community Development Programme (CDP) to increase support to the most vulnerable job seekers, and improve employment outcomes in remote Australia. In particular, the Bill focuses on the implementation of the Targeted Compliance Framework (TCF) in remote Australia.

 

Subject to passage through Parliament and Royal Assent, the Bill will commence by Proclamation. The Bill amends the Social Security Act and the Social Security Administration Act to:

·          Repeal provisions which, in effect, currently exclude CDP participants from the TCF;

·          Repeal the current CDP compliance framework under Division 3A of the Social Security Administration Act;

·          Insert exemptions for CDP participants undertaking subsidised employment who are still in receipt of the Newstart Allowance, Youth Allowance, Disability Support Pension, Special Benefit or Parenting Payment. This will ensure that participants undertaking subsidised employment will not be subject to additional mutual obligation requirements;

·          Create exceptions to work refusal failures for CDP participants who refuse subsidised employment and exceptions for participants undertaking subsidised employment who refuse other offers of employment; and

·          Create exceptions to unemployment failures for participants who voluntarily leave a suitable subsidised job without a valid reason, or are dismissed from a suitable subsidised job for misconduct.

 



 

Human rights implications

This Schedule engages the following 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 in article 11(1) of the ICESCR ;

·            the right to work in Article 6(1) of the ICESCR.

·            the right to equality and non-discrimination in the ICESCR and Article 26 of the International Covenant on Civil and Political Rights (ICCPR); and

·            the right to equality before the law in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

 

The right to social security and the right to an adequate standard of living

The right to social security is recognised in Article 9 of the ICESCR, which recognises ‘the right of everyone to social security, including social insurance”.

 

The right to an adequate standard of living is recognised in Article 11 of the ICESCR which recognises “the right of everyone to an adequate standard of living…including adequate food, clothing and housing and to the continuous improvement of living conditions”.

 

The measures in the Bill address the particular needs of unemployed persons in geographically remote and socially and economically disadvantaged areas. This measure engages the right to social security and the right to an adequate standard of living because CDP participants receiving income support payments will be subject to compliance action where mutual obligations are not met. Some of these mutual obligation requirements will be different to participants in non-remote areas as these obligations have been designed to take into account the unique nature of remote labour markets.

 

The changes to the social security law proposed in this Bill do not limit the ability for individuals to continue to qualify for payments that they would otherwise qualify for. The compliance framework seeks to ensure that income support is paid to those who meet their mutual obligation requirements. The proposed measures will provide additional support and ensure compliance action applies to CDP participants who continue to be wilfully non-compliant. This counters the risks of long-term unemployment and welfare dependency to the individual, communities and Australian society generally. Changes under the CDP reforms relating to employment service assessments will ensure that CDP participants are appropriately assessed and assisted in receiving the necessary social security payments and support to assist them in finding gainful employment. As such these measures assist in promoting the right to an adequate standard of living.

 

Once the measures in the Bill commence, CDP participants will be subject to a nationally consistent compliance framework and for the purposes of compliance, they will be treated the same as all other activity-tested job seekers in non-remote regions across the country.

The measure to exempt participants in subsidised employment from activity test requirements in the social security law and from the TCF is consistent with the right to social security and the right to an adequate standard of living. The measure is reasonable, necessary and proportionate to achieving the legitimate objective of encouraging persons to remain engaged with employment services and actively seek and accept suitable work.

 

The right to work

The right to work is recognised in Article 6(2) of the ICESCR which outlines that for the full realisation of that right, steps should be taken by a State including ‘…technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and productive employment….”. The right to work also includes the right to the opportunity to gain a living by work which the individual freely chooses or accepts.

 

The Bill facilitates the creation of new subsidised jobs which will provide a pathway to employment for CDP participants. These participants will gain the skills and experience necessary to transition into long term unsubsidised employment opportunities. CDP participants in subsidised employment will also be exempt from activity test requirements in the social security law and applicable mutual obligation requirements under the TCF.

                                                                                     

The measures outlined in the Bill support free choice of employment by recognising that participation in subsidised employment is voluntary. CDP participants will not be subject to a work refusal failure where that failure is in relation to a subsidised job. Further, participants in a subsidised job are not subject to work refusal failures if they choose not to take up an offer of unsubsidised employment.

 

As such, this measure promotes the right to work as the legitimate objective because it seeks to counter the risks of long-term unemployment and welfare dependency to the individual and Australian society generally.

 

The right to equality and non-discrimination

The right to equality and non-discrimination is explicitly recognised in Article 2 of the ICESCR and Article 26 of the ICCPR, which provide that all persons are entitled to exercise their rights and to equality before the law, without discrimination as to ‘…race, colour, sex, language, religion, political and other opinion, national or social origin, property birth or other status’.

 

Article 5 of the CERD reinforces this general prohibition and provides that States ‘…undertake to prohibit and to eliminate racial discrimination in all its form and to guarantee the right of everyone, without distinction as to race colour, or ethnic origin, to equality before the law…’.

 

The measures in the Bill potentially engage Australia’s international human rights obligations with respect to non-discrimination on the basis of race and right to equality under ICESCR, the ICCPR , and the CERD.

 

The measure engages Australia’s obligations under the CERD to eliminate all forms of racial discrimination insofar as there are a high number of Indigenous job seekers in the areas where the measure will be implemented. More than 80 per cent of CDP participants identify as Aboriginal and Torres Strait Islander people.

 

The right to equality and non-discrimination is subject to the international human rights principle of ‘legitimate differential treatment’. This principle allows particular groups of people to be treated differently where the treatment is aimed at achieving a legitimate objective, is based on reasonable and objective criteria and is proportionate to the objective to be achieved.

 

The CDP is designed around the unique social and labour market conditions found in remote Australia. It supports the specific needs of job seekers in remote Australia to build skills, address barriers and contribute to their communities through a range of flexible activities. It also supports remote job seekers with transitioning into paid employment which will assist with combatting long term unemployment in remote areas.

 

This transition will ensure CDP participants are subject to the same compliance framework as their non-remote counterparts. Any differences in the compliance regime that affects CDP participants has been designed to take into account the unique social and economic conditions that are present in the labour markets of remote Australia.

 

The transition to the TCF will ensure CDP participants are subject to the same compliance framework as their non-remote counterparts and will be supported by a range of other reforms to the program. These reforms will help CDP participants to meet their obligations, and continue to address long-term unemployment and welfare dependency. Any differences in the compliance regime that affect CDP participants has been designed to take into account the unique social and economic conditions that are present in the labour markets of remote Australia.

 

The CDP reforms were developed in close consultation with a range of stakeholders, and informed by evaluations of the existing program. This process engaged with a variety of stakeholders, including: CDP job seekers, local communities and organisations, CDP Service Providers, the Prime Minister’s Indigenous Advisory Council, peak bodies, Indigenous leaders, community advocates and academics. The Government considered 40 submissions received in response to the Department of the Prime Minister and Cabinet’s Remote Employment and Participation discussion paper. Findings from the recent CDP Senate Inquiry, and the 2017 Australian National Audit Office Performance Audit have also been considered.

 

The measure which transitions CDP participants from the current compliance framework under Division 3A of Part 3 of the Social Security Administration Act to the TCF will ensure that all activity tested job seekers across Australia will be subject to the same compliance framework, no matter where they live.

 

Where participants are engaged in subsidised employment and remain in receipt of a part-rate income support payment, they will be exempt from compliance action under social security law. This is appropriate in remote Australia as participants face higher barriers, fewer job opportunities, higher level of dependence on welfare and lower levels of literacy and numeracy. This also recognises that entry into the subsidised employment program is voluntary, and is beneficial to participants as it provides them opportunity to choose subsidised employment that fits their skills, experience and personal circumstances.

 

The measure is therefore reasonable, necessary and proportionate to achieve the legitimate objectives of the CDP as outlined above and the subsidised jobs package.

 

Conclusion

The Bill is compatible with Australia’s international human rights obligations because the changes proposed by this Bill promote rights to social security and the right to work. To the extent that it may limit human rights, the impact is for a legitimate objective, and is reasonable, necessary and proportionate.