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2013-2014-2015-2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
SOCIAL SECURITY LEGISLATION AMENDMENT
(COMMUNITY DEVELOPMENT PROGRAM) BILL 2015
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by the authority of the
Minister for Indigenous Affairs, Senator the Hon Nigel Scullion)
SOCIAL SECURITY LEGISLATION AMENDMENT
(COMMUNITY DEVELOPMENT PROGRAM) BILL 2015
Amendments to be moved on behalf of the Government
OUTLINE
The amendments to the Social Security Legislation Amendment (Community
Development Program) Bill 2015 (the Bill) provide a new Schedule 3 for the Bill and
associated commencement arrangements. Schedule 3 will provide for the sunset of
the modification power (item 25, section 1061ZAAZC) and a related note (item 25,
note following subsection 1061ZAAZA(2)) provided in the Bill after 2 years.
FINANCIAL IMPACT STATEMENT
These amendments will not alter the financial impact of the Bill. Approximate
portfolio costs are $31.0 million over four years for upfront establishment costs and
roll out of phase one (for up to 2,000 people).
STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
supplementary explanatory memorandum.
SOCIAL SECURITY LEGISLATION AMENDMENT
(COMMUNITY DEVELOPMENT PROGRAM) BILL 2015
Amendments to be moved on behalf of the Government
Summary
The amendment to clause 2 of the Bill provides commencement arrangements in
relation to Schedule 3.
Schedule 3 is inserted in the Bill by amendment to provide for the sunset of the
modification power (item 25, section 1061ZAAZC) and a related note (item 25, note
following subsection 1061ZAAZA(2)) provided in the Bill after 2 years.
Background
Clause 2 inserts a 3 column table setting out commencement information for various
provisions in the Act. The amendments add a new row to this table to provide
commencement arrangements in relation to Schedule 3.
Section 1061ZAAZA creates a power for the Minister, by legislative instrument, to
determine a scheme relating to the imposition of obligations on remote income
support recipients and ensuring compliance with those obligations by remote income
support recipients.
Section 1061ZAAZC provides that the Minister may determine by legislative
instrument that the social security law has effect in relation to remote income support
payments with any modifications prescribed. The main purpose of this provision is to
enable the Minister to address any unforeseen or unintended consequences of the
highly complex interactions between a determination under section 1061ZAAZA and
the social security law as amended that may arise at a later date.
The amendments insert Schedule 3 to provide for the sunset of the modification
power and a related note following subsection 1061ZAAZA(2) after 2 years.
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Explanation of the changes
Clause 2 - Commencement
Subclause 2(1) is amended to include a new row (row 6) to the table provided by
that subclause. This inclusion sets out the commencement information for
Schedule 3. Schedule 3 will commence 2 years after the Act receives the
Royal Assent.
Schedule 3 - Amendments to sunset modification power
Amendments to the Social Security Act 1991
Item 1 repeals the note at the end of subsection 1061ZAAZA(2).
Section 1061ZAAZA creates a power for the Minister, by legislative instrument, to
determine a scheme relating to the imposition of obligations on remote income
support recipients and ensuring compliance with those obligations by remote income
support recipients.
The note at the end of subsection 1061ZAAZA(2) confirms that the determination
under section 1061ZAAZA may deal with matters by modifying the effect of the
Social Security Act 1991 or the Social Security (Administration) Act 1999 as provided
under section 1061ZAAZC. The repeal of this note is a consequential amendment
required by the repeal of section 1061ZAAZC.
Item 2 repeals section 1061ZAAZC.
Section 1061ZAAZC provides that the Minister may determine by legislative
instrument that the social security law has effect in relation to remote income support
payments with any modifications prescribed. The main purpose of this provision is to
enable the Minister to address any unforeseen or unintended consequences of the
highly complex interactions between a determination under section 1061ZAAZA and
the social security law as amended that may arise at a later date.
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As it is likely that any unforeseen or unintended consequences would be addressed
within 2 years, the repeal of section 1061ZAAZC is included as a matter of good
administrative practice consistent with legislative power in relation to the
social security law usually residing with the Parliament.
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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 SECURITY LEGISLATION AMENDMENT
(COMMUNITY DEVELOPMENT PROGRAM) BILL 2015
This Bill, including the amendments proposed, is compatible with the human rights
and freedoms recognised or declared in the international instruments listed in section
3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Bill provides for measures that will establish a new category of existing social
security payments, to be known as remote income support payments, for certain job
seekers who live in remote income support regions. The purpose of the Bill is to
strengthen the existing incentives for remote job seekers to actively engage with a
range of obligations, including participation and activity requirements and
opportunities to participate and remain in paid work.
This new category of payments will be available to persons who meet certain
requirements, including:
1) The person is qualified for disability support pension, parenting payment,
youth allowance, newstart allowance or special benefit; and
2) Satisfies the condition provided under subsection 1061ZAAX(2) (relating to
participation requirements and activity tests); and
3) The person's usual place of residence is in a remote income support region.
Where a person meets those requirements, the person will be a remote income
support recipient, and will receive their payment from a Provider.
When determining a remote income support region, the Minister must consider a
number of factors including whether the region is remote, the level of social and
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Statement of Compatibility with Human Rights
economic disadvantage within the region, and whether there is likely to be a Provider
that is capable of providing remote income support payments to persons living in the
region. The Minister's designation of remote income support regions by legislative
instrument will be subject to the usual rules for the possible disallowance of
legislative instruments by Parliament.
Under the new measures, it is intended that remote income support recipients will be
able to earn close to the minimum wage before their payments are impacted. The
rationale for this is to encourage remote job seekers to take on work opportunities as
and when they arise, without fear of their income support being reduced in the short
term. This increases the incentives to engage in and remain in work when it is
available. This recognises that the remote job market is significantly different to the
mainstream job market, especially in regard to the type of work available.
Remote income support recipients will be subject to new simplified compliance
arrangements, which will be determined by the Minister under a legislative that will
be subject to scrutiny by Parliament.
Human rights implications
This Bill engages the following human rights:
Right to social security: Article 9 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR).
Right to an adequate standard of living: Article 11 of the ICESCR.
Right to work: Article 6 of the ICESCR.
Right of equality and non-discrimination: Article 2 of the ICESCR, Article 5 of
the Convention on the Elimination of All Forms of Racial Discrimination (the
CERD), and Article 26 of the International Covenant on Civil and Political
Rights (ICCPR).
Rights of children: Articles 26 and 27 of the Convention on the Rights of the
Child (CRoC).
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Statement of Compatibility with Human Rights
Right to social security and 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 changes to the social security law proposed in this Bill do not limit the ability for
individuals to continue to qualify for any of the payments that they would otherwise
qualify for. For remote income support recipients, the changes proposed by the Bill
will have the effect of allowing individuals to continue to receive remote income
support payments to a greater extent, even where a person has taken up some form
of paid employment.
By allowing remote income support recipients to earn close to the minimum wage
while still receiving their remote income support payments, the Bill also provides a
more generous scheme for remote income support recipients. This consequently
promotes the ability of those individuals to improve their standard of living, by
allowing them to engage in a greater level of work and work-like activities before
their social security payments are affected by tapering arrangements.
The Bill therefore promotes the rights to social security and an adequate standard of
living.
Right to work
The right to work is recognised in Articles 6 of the ICESCR, and includes that for the
full realisation of that right, steps should be taken by a State including ' ... technical
and vocational guidance and training programmes, policies and techniques to
achieve steady economic, social and cultural development and productive
employment ... '.
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Statement of Compatibility with Human Rights
The measures included in this Bill are intended to strengthen the existing incentives
for remote job seekers to actively engage with a range of mutual obligations
requirements, tailored to their needs, and opportunities to participate and remain in
paid work.
The intention is that the legislative instrument made by the Minister under
section 1061ZAAZA will allow the Minister to set out obligation requirements to
require remote income support recipients to engage in activities, including activities
that will enable them to build essential skills for entering the workforce. The intention
is that the legislative instrument will provide for consequences where obligations are
not complied with, in order to provide incentives for remote income support recipients
to engage in work or activities.
The application of the simplified compliance framework and the new payment
arrangements will operate so that remote income support recipients will be paid on a
weekly basis by Providers. It will therefore now be possible for penalties for failing to
attend activities to be applied in the week in which the failure to attend occurred. It is
intended that this will result in a closer connection between failing to attend a
required activity and the application of a No Show, No Pay penalty. In turn, this will
increase the incentives for remote income support recipients to comply with their
participation or activity requirements, and thereby increase their readiness to engage
in the workforce.
By allowing remote income support recipients to earn close to the minimum wage
while still receiving their remote income support payments, the Bill provides
incentives for remote income support recipients to engage in a greater level of paid
work before their social security payments are affected by tapering arrangements.
This is intended to address circumstances where job seekers in volatile job markets
may resist taking on work opportunities that arise, for fear that a temporary work
opportunity may negatively impact their amount of payment. The intention is that the
ability to earn a larger amount of income before the payment amount begins to
reduce will encourage remote job seekers to more readily take up part-time or casual
job opportunities.
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Statement of Compatibility with Human Rights
The Bill therefore promotes the right to work and provides incentives for job seekers
to engage in their participation or activity requirements, as well as take up job
opportunities and engage in work.
Rights of 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 or other opinion, national or social
origin, property, birth or other status'.
Article 5 of the CERD reinforces this general prohibition and provides that States
Parties 'undertake to prohibit and to eliminate racial discrimination in all its forms and
to guarantee the right of everyone, without distinction as to race, colour, or national
or ethnic origin, to equality before the law ... '.
The measures introduced by the Bill aim to strengthen the existing incentives for
remote job seekers to actively engage with a range of mutual obligations
requirements and opportunities to participate and remain in paid work. The
measures are aimed at remote job seekers, on the basis that there are particular
obstacles faced by job seekers in remote Australia, including less robust job
markets, higher levels of dependence on welfare, lower levels of literacy and
numeracy, and persistent and entrenched disadvantage. The measures will apply
equally to all job seekers who reside within remote income support regions across
Australia.
These measures will be beneficial to remote income support recipients and have a
positive impact by providing a simplified compliance framework and penalties that
are easier to understand, as well as allowing job seekers who comply with their
obligations to engage in higher levels of paid work before taper rates that reduce
their amount of income support are applied.
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Statement of Compatibility with Human Rights
This new category of payments will be available to persons who meet certain
requirements, including:
1) The person is qualified for disability support pension, parenting payment,
youth allowance, newstart allowance or special benefit; and
2) Satisfies the condition provided under subsection 1061ZAAX(2) (relating to
participation requirements and activity tests); and
3) The person's usual place of residence is in a remote income support region.
As such, a determination will not be applied on the basis of racial, cultural, gender,
religious, or political status of people residing in remote income support regions.
In addition, the proposed measure will not have the inadvertent effect of
discriminating against welfare recipients in non-remote income support regions. As
outlined, the measures proposed in the Bill allow for a simplified system of mutual
obligations for persons in remote income support regions, when compared with their
counterparts not living in remote income support regions. This simplification is
complimented by modified compliance requirements and the ability to earn a higher
income before payments are impacted.
Despite this differing standard, the application of these measures in remote income
support regions is designed to overcome the inherent imbalance in employment
opportunities and consequential disadvantage experienced in parts of remote
Australia. The proposed amendment is therefore necessary to promote equality
through elevating the situation of persons in remote income support regions to a
standard comparable with their counterparts not living in remote income support
regions.
The Bill is therefore consistent with the rights to equality and non-discrimination.
Right of children to benefit from social security and an adequate standard of
living
Under Article 26 of the CRoC, all children have the right to 'benefit from social
security, including social insurance'.
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Statement of Compatibility with Human Rights
Article 27 of the CRoC provides that every child has to a 'standard of living adequate
for the child's physical, mental, spiritual, moral and social development'.
The proposed amendments in the Bill will have the direct effect of furthering the right
to social security and an adequate standard of living for remote income support
recipients under the ICESCR. In turn, the elevated standard of living and access to
social security enjoyed by recipients will have an indirect benefit for the children of
remote income support recipients.
The Bill is therefore consistent with the rights of the child to benefit from social
security and to enjoy an adequate standard of living.
Conclusion
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 to
achieving the legitimate objective of supporting job seekers in remote Australia, by
strengthening the existing incentives for remote job seekers to actively engage with a
range of mutual obligations requirements and opportunities to participate and remain
in paid work.
Minister for Indigenous Affairs, Senator the Hon Nigel Scullion
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