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

Administered by Department of Social Services

Legislation au F2006L00348 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

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

Summary

This Ddetermination is made under subsections 501A(4), 544B(1B) and 6 731M06(1B) of the Social Security Act 1991 (the Act).

The purpose of this Ddetermination is to set out requirements that cannot be contained in an Special Benefit Activity Agreement under .  The Ddetermination is relevant for parenting payment, newstart allowance and youth allowance (except for new apprentices or people undertaking full-time study under section 731L541B   of  the Act).

Explanation of the Ddetermination

Recipients and claimants of of special benefit who are nominated visa holdersparenting payment, youth allowance and newstart allowance who have participation obligations are generally required to enter into a Special Benefitn AActivity Agreement. with Centrelink.  An Special Benefit AActivity AAgreement  sets out the activities that a claimant or recipient must undertake in order to receive special benefithis or her social security payment.  While flexibility must be maintained to ensure that a broad range of activities can be included in an Aactivity aAgreements, the Government considers that special benefit claimants and recipientsjob seekers should not be compelled to undertake certain activities.  This Ddetermination sets out some of those activities. 

Explanation of the provisions

Section 1 sets out the name of the Ddetermination. Section 2 sets out the commencement date of the determination as being 1 July 2006.  This corresponds with the commencement of the provisions in the Act under which the Ddetermination is made.    Section 3 sets out the interpretation definitions to be used in the  instrumentDetermination with thea note providing that terms appearing in the instrument Determination having have the same meaning as in the social security lawAct. 

Section 4 sets out thecontains the substantive clauses of the Ddetermination.  The effect of subsubsection (4)(1) and (2)section 4(1) is that special benefit claimants and at parenting payment, youth allowance and newstart allowance recipients recipients who are nominated visa holders cannot be required to undertake any of the activities  set out in subsection  4(32).

Subsection 4(32) consists of three paragraphs. Paragraph 4(32)(a) sets out five specific types of activities (subparagraph 4(3)(a)(i) to (v)) that cannot be a requirement in a Special Benefitn Aactivity Aagreement for the payment types mentioned above. The activities in subsection 4(3paragraph   4(2)(a)) are seeking work or being involved in the sex or adult entertainment industry; participation or involvement in an illegal activity; involuntarily undergoing psychiatric or psychological treatment; involuntarily undergoing medical treatment; and an activity that which is required to be undertaken outside of Australia; and seeking work or being involved in the sex or adult entertainment industry. These activities are specified as being unable to beexpressly mentioned in the Determination  included in an activity agreement as it is consideredto ensure appropriate to protect people are protected from being compelled to undertake any of themthe activities.

 

 

 

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

 thereby allowing people a choice as to whether they will undergo treatment as part of their agreement. 

Paragraph 4(32)(b) has the effect that any activity that would contravene a Commonwealth, state ore and territory discrimination or occupational health and safety law cannot be a requirement in an activity agreement.  This provision is to ensureParagraph 4(2)(b) ensures that in setting activities within an activity agreement, specific consideration is given to relevant legislation. 

 

 

Paragraph 4(32)(c) applies when it has been established by medical evidence that a person has an illness, disability or injury.  IWhere thisf such has been established, then, as set out in subparagraph 4(32)(c)(i), an activity that medical evidence indicates would aggravate the person’s illness, disability or injury cannot be a requirement in an activity aagreement.  Additionally, as provided for in subparagraph 4(23)( c)(ii) an activity that would inhibit the promotion in the community of a positive image of people who have a disability or would diminish the person’s self esteem cannot be a requirement in an agreementdoes not provide appropriate support or facilities to take account of the person’s illness disability or injury cannot be included withina requirement in an agreement. [insert policy rationale] This is to 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 EmploymentFamily and Workplace RelationsCommunity Services 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 aagreements.

Consultations was were undertaken with the following organisations:. 

[policy to insert organisations]

 

[policy to insert how consultation were undertaken i.e. submissions received, opportunity for comment]

-          National Welfare Rights Network; 

-          the Australian Council of Social Service; 

-          the National Council of Single Mothers and their ChildrenParents; 

-          the Sole Parents’ Union;

-          the Welfare to Work Consultative Forum; and

-          the Disability Advisory Group.

PeopleThe organisations  consulted were provided with a drafts of the legislative instrumentsDetermination and were invited to provide comments at a forum held on 13 January 2006 andand/or to provide written comments to the Department of Employment and Workplace Relations.

 

Overview

The Social Security (Activity Agreement Requirements) (DEWRFaCSIA) Determination 2006 was enacted to address the need for specific requirements that could not be included in Special Benefit Activity Agreements under the Social Security Act 1991. This determination was introduced to ensure that certain activities could not be mandated for recipients of parenting payment, newstart allowance, and youth allowance (excluding new apprentices or those undertaking full-time study) in their activity agreements. The enacting body was the Australian Parliament, and the policy objective was to protect social security recipients from being compelled to undertake activities that are deemed inappropriate, such as involvement in the sex industry or activities that would contravene discrimination or occupational health and safety laws. Additionally, the determination ensures that recipients with disabilities or medical conditions are not subjected to unreasonable demands that could aggravate their conditions or diminish their self-esteem. The legislation was developed in consultation with various organisations, including the National Welfare Rights Network and the Australian Council of Social Service, to ensure a coordinated approach to these requirements.

Scope and Application

The Social Security (Activity Agreement Requirements) (DEWRFaCSIA) Determination 2006 applies to recipients and claimants of special benefits, including parenting payment, newstart allowance, and youth allowance, who are nominated visa holders and have participation obligations. This Determination sets out certain requirements that cannot be included in a Special Benefit Activity Agreement, ensuring that claimants and recipients are not compelled to undertake specific activities. The determination applies to the Commonwealth jurisdiction and commenced on 1 July 2006. It includes substantive clauses that outline activities which cannot be required in an activity agreement, such as seeking work or being involved in the sex or adult entertainment industry, participation in illegal activities, involuntary psychiatric or psychological treatment, involuntary medical treatment, and activities that must be undertaken outside Australia. Additionally, activities that would contravene discrimination or occupational health and safety laws, or that would aggravate an illness, disability, or injury, are also prohibited. The Determination extends its application through subordinate instruments, ensuring a consistent approach across all social security payments under the Act.

Key Provisions

The main operative sections of the Social Security (Activity Agreement Requirements) (DEWRFaCSIA) Determination 2006 (the Determination) are outlined in Section 4. Section 4(1) specifies that recipients of parenting payment, newstart allowance, and youth allowance who are nominated visa holders cannot be required to undertake certain activities as part of their Special Benefit Activity Agreement (section 4(32)). Subsection 4(3) details the activities that cannot be included in these agreements. These activities include seeking work or being involved in the sex or adult entertainment industry (section 4(3)(a)(i)), participating in illegal activities (section 4(3)(a)(ii)), undergoing involuntary psychiatric or psychological treatment (section 4(3)(a)(iii)), undergoing involuntary medical treatment (section 4(3)(a)(iv)), and engaging in activities that must be performed outside Australia (section 4(3)(a)(v)). Additionally, activities that contravene Commonwealth, state, or territory discrimination or occupational health and safety laws cannot be required (section 4(3)(b)). Lastly, if a person has an illness, disability, or injury as evidenced by medical documentation, activities that would aggravate their condition or diminish their self-esteem cannot be required (section 4(3)(c)). The Determination imposes specific obligations on the parties involved. For recipients of parenting payment, newstart allowance, and youth allowance who are nominated visa holders, it mandates that their Special Benefit Activity Agreements cannot include the activities outlined in Section 4(3). This means that Centrelink and other relevant authorities must ensure that these activities are not imposed on these recipients. Furthermore, Centrelink must consider the medical evidence of recipients when determining suitable activities. This ensures that the activities are appropriate and do not exacerbate the recipients' conditions or impact their self-esteem negatively. Breaches of the Determination can result in various consequences. While the Determination does not explicitly outline specific penalties, breaches of related provisions in the Social Security Act 1991 can lead to both civil and criminal penalties. For instance, under Section 1229 of the Social Security Act 1991, providing false or misleading information in relation to a social security payment can result in a penalty of up to 50 penalty units (approximately AUD 9,950) for individuals and up to 250 penalty units (approximately AUD 49,750) for bodies corporate. Additionally, Section 1232 of the Act provides for criminal penalties, including fines and imprisonment, for wilfully providing false or misleading information. These provisions underscore the importance of compliance with the Determination and related legislative requirements. In summary, the Social Security (Activity Agreement Requirements) (DEWRFaCSIA) Determination 2006 sets out specific activities that cannot be required of certain recipients of social security payments. It imposes obligations on Centrelink and other relevant authorities to ensure that these activities are not included in Special Benefit Activity Agreements. While the Determination itself does not specify penalties for breaches, related provisions in the Social Security Act 1991 provide for both civil and criminal penalties for providing false or misleading information. These measures aim to protect recipients from being compelled to undertake inappropriate or harmful activities as part of their social security obligations.

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