Social Security (Activity Agreement Requirements) (DEWR) Determination 2006

Administered by Department of Education, Employment and Workplace Relations

Legislation au F2006L00338 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Social Security (Activity Agreement Requirements) (DEWR) Determination 2006

Summary

This Determination is made under subsections 501A(4), 544B(1B) and 606(1B) of the Social Security Act 1991 (the Act).

The purpose of this Determination is to set out requirements that cannot be contained in an Activity Agreement.  The Determination is relevant for parenting payment, youth allowance (except for new apprentices or people undertaking full-time study) and newstart allowance.

Explanation of the Determination

Recipients of parenting payment, youth allowance and newstart allowance who have participation obligations are generally required to enter into an Activity Agreement.  An Activity Agreement  sets out the activities that a recipient must undertake in order to receive his or her social security payment.  While flexibility must be maintained to ensure that a broad range of activities can be included in Activity Agreements, the Government considers that job seekers should not be compelled to undertake certain activities.  This Determination sets out some of those activities. 

Explanation of the provisions

Section 1 sets out the name of the Determination. Section 2 sets out the commencement date of the Determination being 1 July 2006.  This corresponds with the commencement of the provisions in the Act under which the Determination is made.    Section 3 sets out the definitions to be used in the Determination with the note providing that terms appearing in the Determination have the same meaning as in the Act. 

Section 4 contains the substantive clauses of the Determination.  The effect of subsection 4(1) is that parenting payment, youth allowance and newstart allowance recipients cannot be required to undertake any of the activities set out in subsection 4(2).

Subsection 4(2) consists of three paragraphs. Paragraph 4(2)(a) sets out five specific types of activities (subparagraph 4(2)(a)(i) to (v)) that cannot be a requirement in an Activity Agreement for the payment types mentioned above. The activities in paragraph 4(2)(a) are: participation or involvement in an illegal activity; involuntarily undergoing psychiatric or psychological treatment; involuntarily undergoing medical treatment; an activity which is required to be undertaken outside of Australia; and a requirement that a person seek work or be involved in the sex or adult entertainment industry. These activities are expressly mentioned in the Determination to ensure people are protected from being compelled to undertake the activities.

 

 

 

While it may be appropriate that people undertake psychological treatment or medical treatment on a voluntary basis to assist them prepare for work, it is considered inappropriate for involuntary treatment to be a requirement in an Activity Agreement.  Paragraph 4(2)(a), however, does not preclude such treatment from being included in an agreement if a person so chooses.

Paragraph 4(2)(b) has the effect that any activity that would contravene a Commonwealth, state and territory discrimination or occupational health and safety law cannot be a requirement in an activity agreement.  Paragraph 4(2)(b) ensures that in setting activities within an agreement, specific consideration is given to relevant legislation.

Paragraph 4(2)(c) applies when it has been established by medical evidence that a person has an illness, disability or injury.  If such has been established, then as set out in subparagraph 4(2)(c)(i) an activity that medical evidence indicates would aggravate the person’s illness, disability or injury cannot be a requirement in an agreement.  Additionally, as provided for in subparagraph 4(2)(c)(ii) an activity that does not provide appropriate support or facilities to take account of the person’s illness disability or injury cannot be a requirement in an agreement.  This ensures that unreasonable expectations are not made of people with conditions that require special consideration.  For example, if a person requires use of a wheelchair accessible toilet, it is inappropriate for a person to be required to attend a training session in a venue without such a toilet.

Consultation

The Department of Families, Community Services and Indigenous Affairs and the Department of Education, Science and Training were consulted to ensure a co-ordinated and consistent approach for all social security payments under the Act in respect of requirements that cannot be contained in Activity Agreements.

Consultations were undertaken with the following organisations: 

-          National Welfare Rights Network;

-          the Australian Council of Social Service;

-          the National Council of Single Mothers and their Children;

-          the Sole Parents’ Union;

-          the Welfare to Work Consultative Forum; and

-          the Disability Advisory Group.

The organisations consulted were provided with a draft of the Determination and were invited to provide comments at a forum held on 13 January 2006 and to provide written comments to the Department of Employment and Workplace Relations.

 

Overview

The Social Security (Activity Agreement Requirements) (DEWR) Determination 2006 was enacted to address the issue of inappropriate or unreasonable activities being mandated within Activity Agreements for certain social security recipients. This Determination was made under subsections 501A(4), 544B(1B), and 606(1B) of the Social Security Act 1991 by the Australian Government, aiming to protect recipients from being compelled to undertake activities that are either illegal, involuntary, or otherwise inappropriate. The relevant payments covered by this Determination include parenting payment, youth allowance, and newstart allowance. The overarching policy objective is to ensure that while recipients have participation obligations, they are not subjected to requirements that could potentially harm them or violate their rights under discrimination or occupational health and safety laws.

Scope and Application

The Social Security (Activity Agreement Requirements) (DEWR) Determination 2006, made under subsections 501A(4), 544B(1B) and 606(1B) of the Social Security Act 1991, sets out specific activities that recipients of parenting payment, youth allowance, and newstart allowance cannot be required to undertake as part of their Activity Agreements. The Determination applies to these social security recipients who have participation obligations and aims to ensure that they are not compelled to engage in activities that are either inappropriate or illegal. It explicitly prohibits activities such as participation in illegal activities, involuntary psychiatric or medical treatment, activities requiring presence outside Australia, and involvement in the sex or adult entertainment industry. Additionally, the Determination ensures that activities cannot be mandated if they contravene discrimination or occupational health and safety laws, or if they would aggravate a recipient's illness, disability, or injury, or fail to provide necessary support or facilities for their condition. The provisions are designed to protect recipients and maintain flexibility in the types of activities that can be included in Activity Agreements, while ensuring that the activities are reasonable and considerate of individual circumstances.

Key Provisions

The Social Security (Activity Agreement Requirements) (DEWR) Determination 2006, made under the Social Security Act 1991, sets out specific activities that cannot be required of recipients of parenting payment, youth allowance, or newstart allowance when they enter into Activity Agreements (section 4). These activities include participation in illegal activities (subsection 4(2)(a)(i)), involuntary psychiatric or psychological treatment (subsection 4(2)(a)(ii)), involuntary medical treatment (subsection 4(2)(a)(iii)), activities that must be undertaken outside Australia (subsection 4(2)(a)(iv)), and requirements to seek work in the sex or adult entertainment industry (subsection 4(2)(a)(v)). The Determination also prohibits activities that contravene discrimination or occupational health and safety laws (subsection 4(2)(b)). Additionally, if medical evidence indicates that an activity would aggravate a recipient’s illness, disability, or injury, or if the activity does not provide appropriate support or facilities for their condition, it cannot be required in an Activity Agreement (subsection 4(2)(c)). Under this Determination, recipients of the specified social security payments have the assurance that they will not be compelled to engage in activities that are deemed inappropriate or harmful by the government. The obligations imposed on these recipients are primarily governed by their participation in Activity Agreements, which must exclude the activities listed in section 4(2) of the Determination. This ensures that the activities set out in their agreements are reasonable and do not place undue burden or risk on the recipients. Furthermore, the Determination imposes a responsibility on the relevant authorities to ensure that Activity Agreements comply with these specified exclusions. The Act does not explicitly state offences, penalties, or civil/criminal consequences for breaches of the Determination. However, it can be inferred that non-compliance with the requirements set out in the Determination could result in the recipient not meeting their obligations under the Social Security Act 1991. While the Determination itself does not detail specific penalties, breaches of the Act generally can result in fines and, in severe cases, imprisonment. The maximum penalties for breaches of the Social Security Act 1991 can vary depending on the nature and severity of the offence but may include substantial fines and imprisonment for serious violations. For example, knowingly making a false statement in an application for a payment can attract a penalty of up to 12 months imprisonment or a fine of up to 120 penalty units, or both, under section 118 of the Act.

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Social Security Law
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Reporting & Disclosure Obligations
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