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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SERVICES LEGISLATION AMENDMENT
(14-MONTH REGIONAL INDEPENDENCE CRITERIA) BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Social Services, the Hon Dan Tehan MP)
SOCIAL SERVICES LEGISLATION AMENDMENT
(14-MONTH REGIONAL INDEPENDENCE CRITERIA) BILL 2018
OUTLINE
This Bill amends the Social Services Legislation Amendment (Simplifying Student
Payments) Act 2017 to ensure that the '14-month period' in the Youth Allowance
(YA) (student) regional workforce independence criteria operates as intended.
Consistent application of the 14-month regional independence criteria
The Bill will ensure that the '14-month period' in the regional workforce
independence criteria operates as intended and is applied to both new claimants and
existing YA recipients. The Social Services Legislation Amendment (Simplifying
Student Payments) Act 2017 inadvertently created two classes of applicants for YA
(student) regional workforce independence status, where existing recipients continue
to have the previous '18-month period' apply to them, while those claiming from
1 January 2018 have the '14-month period' applied.
The Bill will rectify this inconsistency and establish one class of applicants from the
date of Royal Assent. At the same time, it will save the position of persons who have
been found to be independent on the basis of the '18-month period' in the meantime.
This measure would commence the day after the Bill receives Royal Assent.
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Financial impact statement
MEASURE FINANCIAL IMPACT OVER THE FORWARD
ESTIMATES
Consistent application of the Nil
14-month regional independence
criteria
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
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SOCIAL SERVICES LEGISLATION AMENDMENT
(14-MONTH REGIONAL INDEPENDENCE CRITERIA) BILL 2018
NOTES ON CLAUSES
Abbreviations used in this explanatory memorandum
In this explanatory memorandum, the Simplifying Student Payments Act means
the Social Services Legislation Amendment (Simplifying Student Payments) Act
2017.
Clause 1 sets out how the new Act is to be cited - that is, as the Social Services
Legislation Amendment (14-Month Regional Independence Criteria) Act 2018.
Clause 2 provides a table setting out the commencement date of the new Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
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Schedule 1 - Consistent application of the 14-month regional independence criteria
Schedule 1 - Consistent application of the 14-month regional independence
criteria
Summary
The Bill will ensure that the '14-month period' in the YA (student) regional workforce
independence criteria operates as intended. The Simplifying Student Payments Act
inadvertently created two classes of applicants for YA (student) regional workforce
independence status, where existing recipients continue to have the previous
'18-month period' apply to them, while those applying from 1 January 2018 have the
'14-month period' applied.
The Bill will rectify this inconsistency and establish one class of applicants going
forward.
The Bill will also preserve the qualification as being independent for people who
took steps to test or establish their independence status prior to the date the Bill
receives Royal Assent, and the '18-month period' applied to them at that time.
Background
Youth Allowance (student) regional workforce independence criteria
The YA (student) regional workforce independence criteria enables tertiary students
from regional and remote areas, who need to move away from the parental home to
study, to be considered independent for YA purposes (and thereby avoid being
subject to the parental income test).
Up until 1 January 2018, the criteria, as set out in section 1067A of the
Social Security Act 1991, required that a student must have:
- supported themselves through paid work consisting of a period, or periods, of
employment over an 18-month period since last leaving secondary school;
- had cumulative earnings from employment during this period totalling at least
75% of Wage Level A of the National Training Wage schedule included in a
modern award or that maximum rate as varied or replaced by Fair Work
Australia; and
- had parental income under $150,000.
Changes introduced by the Simplifying Student Payments Act intended to reduce the
self-supporting period for regional students under these criteria from 18 months to
14 months, beginning on 1 January 2018.
The Simplifying Student Payments Act inadvertently created two classes of
applicants for YA (student) regional workforce independence status.
This meant that existing recipients continue to have the previous '18-month period'
apply to them, while those making a claim from 1 January 2018 have the '14-month
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Schedule 1 - Consistent application of the 14-month regional independence criteria
period' applied. Under this measure, one class of applicants will be established so
that the '14-month period' is applied consistently going forward to all YA recipients
and new applicants who otherwise satisfy the YA (student) regional workforce
independence criteria.
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Schedule 1 - Consistent application of the 14-month regional independence criteria
Explanation of the changes
Amendments to the Simplifying Student Payments Act
Schedule 4 to the Simplifying Student Payments Act amended the YA regional
workforce independence criteria, reducing the period that a student must have been
self-supporting since finishing school from 14 months to 18 months.
Subitem 7(a) of Schedule 4 to the Simplifying Student Payments Act describes the
application of this change, specifying that the new 14-month period only applies in
relation to a claim for YA made on or after the commencement of Schedule 4.
As the commencement date for Schedule 4 is 1 January 2018, this means that if a
person was at that time an existing YA recipient (who may be receiving 'dependent'
YA at a reduced rate due to the parental income test), the new '14-month period' will
not apply to them. These people are therefore being assessed under the old
'18-month period'. This has created two classes of applicants: those who were
existing YA recipients before 1 January 2018, and those who make claims for YA on
or after 1 January 2018.
The amendments preserve the qualification as being independent for a person who
has had the '18-month period' applied to them, or has appropriately sought to have it
applied to them, before this Bill receives Royal Assent.
Item 1 amends repeals item 7 of Schedule 4 to the Simplifying Student Payments
Act and substitutes a new item 7.
New paragraph 7(1)(a) provides that the '14-month period' applies to a person
irrespective of when he or she made the relevant claim for YA. The '14-month
period' does not ever apply to a person, however, if new subitem 7(2) applies to
them.
New paragraph 7(1)(b) is directed to ensuring that the amendment made by item
7(b) of Schedule 4 to the Simplifying Student Payments Act is reinstated immediately
after its repeal (without any gap).
New subitem 7(2) is directed to ensuring that people to whom the 18-month rule had
already been properly applied before the commencement of the Bill are not
disadvantaged. It also seeks to preserve the qualification as being independent for
someone who sought to have their independence status considered against the '18-
month period' prior to the commencement of the Bill.
This subitem, by the operation of 11B(2) of the Acts Interpretation Act 1901, draws
on the meaning of terms used and defined in the Social Security Act 1991. In
particular, references in this Bill to circumstances where a person "receives" youth
allowance draw on the term "receiving" in section 23 of that Act. For example, the
term "receives" in subitem 7(2) allows someone whose independence status update
has not been processed by the date of Royal Assent to be covered by the exception,
where the earliest day the rate was payable is before the date of Royal Assent (see
Social Security Act 1991, s23(2)).
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Schedule 1 - Consistent application of the 14-month regional independence criteria
A person will fall within the exemption in subitem 7(2) only if they meet all three
criteria set out at (a), (b) and (c) in respect of the same day. That day must be a day
before this Bill receives Royal assent.
Paragraph 7(2)(a) makes it clear that the exception can only apply in relation to a
claim for YA made prior to 1 January 2018. For any claim made on or after
1 January 2018, the '14-month period' applies.
Paragraph 7(2)(b) makes it clear that a person must be not only receiving YA, but
receiving it at the independent rate, in respect of the relevant day. Subparagraph
7(2)(c) provides that the person must have been receiving YA at the independent
rate, by reference to the '18-month period'.
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Statement of compatibility with human rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
SOCIAL SERVICES LEGISLATION AMENDMENT
(14-MONTH REGIONAL INDEPENDENCE CRITERIA) BILL 2018
Schedule 1: '14-month period' commencement
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 will ensure that the '14-month period' in the Youth Allowance regional
workforce independence criteria, which commenced on 1 January 2018, is extended
to apply to existing recipients who otherwise meet the regional workforce
independence criteria.
The Social Services Legislation Amendment (Simplifying Student Payments) Act
2017 inadvertently created two classes of applicants for regional workforce
independence status, where existing recipients continue to have the '18-month
period' apply to them, while those applying from 1 January 2018 will have '14-month
period' applied. This Schedule will rectify this issue and establish one class of
applicants.
This Schedule is beneficial because it will remove discrimination between the
artificially created classes of applicants (those who were deemed to be receiving
dependent Youth Allowance as at 31 December 2017 and those who claimed Youth
Allowance at a later date). It will ensure consistent application of the '14-month
period' to students who otherwise meet the regional independence criteria.
Human rights implications
This Schedule engages the following human rights:
Right to social security
Article 9 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) recognises the right of everyone to social security.
The right to social security requires that a system be established under domestic
law, and that public authorities must take responsibility for the effective
administration of the system. The social security system must provide a minimum
essential level of benefits to all individuals and families that will enable them to cover
essential living costs.
The United Nations Committee on Economic, Cultural and Social Rights (the
Committee) has stated that a social security scheme should be sustainable and that
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Statement of compatibility with human rights
the conditions for benefits must be reasonable, proportionate and transparent (see
General Comment No.19).
Article 4 of ICESCR provides that countries may limit the rights such as to social
security in a way determined by law only in so far as this may be compatible with the
nature of the rights contained within the ICESCR and solely for the purpose of
promoting the general welfare in a democratic society. Such a limitation must be
proportionate to the objective to be achieved.
To the extent that there is an impact on a person's right to social security by virtue of
Schedule 1, the impact is limited.
Under this Schedule, some students aged under 22 who had previously been subject
to an 18-month waiting period between leaving school and accessing non-parentally
means tested Youth Allowance under the regional workforce independence criteria,
will have their waiting period reduced to 14-months. This enhances these students'
access to social security.
Youth Allowance (student) is a means-tested payment available for people aged
16-24 and undertaking full-time study or training. It is a fortnightly payment designed
to assist with the living costs associated with study and to encourage young people
to undertake education and training. Students living away from home receive a
higher rate of payment than those students living at home. In 2018, students aged
18-24 living away from home may receive up to $445.80 per fortnight, compared to
$293.60 per fortnight for students living at home.
Right to education
Article 13 of the ICESCR recognises the right of everyone to education. It provides
that education shall be directed to the full development of the human personality and
the sense of its dignity, and shall strengthen the respect for human rights and
fundamental freedoms, and that higher education shall be made equally accessible
to all, on the basis of capacity, by every appropriate means.
To the extent that there is an impact on a person's right to education by virtue of
Schedule 1, the impact is limited.
This Schedule enhances the right to education for a small cohort of students by
enhancing their access to income support while they are studying. It does this by
enhancing access to Youth Allowance (student) for the cohort by reducing their
waiting period from 18 months to 14 months since leaving school, should they apply
for non-parentally means tested Youth Allowance, under the regional workforce
independence criteria.
Right to work
Article 6 of the ICESCR recognises the right to work, which includes the availability
of technical and vocation guidance and training programs to achieve full and
productive employment.
To the extent that Schedule 1 impacts a person's right to work, the impact is limited.
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Statement of compatibility with human rights
This Schedule enhances the right to work for a small cohort of students. It does this
by enhancing their access to income support while they are undertaking education.
Such education is likely to lead to full and productive employment. The enhanced
access to income support for this cohort of students will be made possible through
enhancing their access to Youth Allowance (student). This will be achieved by
reducing the waiting period that applies to this cohort, from 18 months to 14 months
since leaving school, should they apply for non-parentally means tested Youth
Allowance, under the regional workforce independence criteria.
Youth Allowance (student) is a fortnightly payment designed to assist and encourage
young people to undertake education and training.
Discrimination on the basis of 'other status'
Article 2(2) of the ICESCR prohibits discrimination on the basis of race, colour,
language, religion, political or other opinion, national or social origin, property, birth
or other status. 'Other status' can include a group that is clearly identified.
This Schedule does not provide for any discrimination on the basis of race, colour,
language, religion, political or other opinion, national or social origin, property, birth
or other status.
This Schedule removes discrimination between the artificially created classes of
applicants (those who were deemed to be receiving dependent Youth Allowance as
at 31 December 2017 and those who claimed Youth Allowance at a later date). It
will ensure consistent application of the '14-month period' to students who otherwise
meet the regional independence criteria.
Conclusion
The amendments in the Schedule are compatible with human rights because they
promote access to social security and education. By ensuring consistent application
of the '14-month period' to students who otherwise meet the regional independence
criteria, these amendments will mean that more students are able to access social
security to support their tertiary education, four months earlier than was previously
the case.
[Circulated by the authority of the Minister for Social Services,
the Hon Dan Tehan MP]
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