EXPLANATORY STATEMENT
Social Security (Administration) (Schooling Requirements –
Person Responsible) Specification 2012
Summary
The Social Security (Administration) (Schooling Requirements – Person Responsible) Specification 2012 (the Specification) is made under subsection 124A(2) of the Social Security (Administration) Act 1999 (the Act) and specifies a class of persons for the purposes of paragraph (aa) of the definition of person responsible in subsection 124A(1) of the Act.
The Specification is made by the Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform, and on behalf of the Minister for School Education, Early Childhood and Youth and the Minister for Tertiary Education, Skills, Science and Research.
Background
Part 3C of the Act contains the rules that give effect to the Improving School Enrolment and Attendance through Welfare Reform Measure (SEAM). Part 3C outlines requirements for certain parents and carers in receipt of income support payments in relation to the enrolment and attendance of their compulsory school age children.
Schedule 2 to the Social Security Legislation Amendment Act 2012 inserted a new Division 3A into Part 3C of the Act. New Division 3A of Part 3C provides a new way of addressing unsatisfactory school attendance through a more structured process of conferences and the development of attendance plans. These new SEAM provisions are designed to allow flexibility in alignment with State and Territory programs aimed at improving student enrolment, attendance and participation. The legislation will initially be used to complement the Northern Territory Government ‘Every Child, Every Day’ strategy which also aims to improve student enrolment, attendance and participation. This Specification affects the operation of the new SEAM provisions as they apply in the Northern Territory.
Division 3A applies if a schooling requirement person’s child is enrolled at school and the person responsible for the operation of the school gives written notice to the Secretary that the child has unsatisfactory school attendance. If these conditions are satisfied, then Division 3A sets out a process whereby a person can be required to attend a conference, enter into an attendance plan and comply with the requirements of the plan through the giving of various notices by the notifier. The notifier can be the Secretary (or delegate) or the person responsible for the operation of the school.
Division 3 can apply if a schooling requirement person’s child is enrolled at school and the person responsible for the operation of the school gives written notice to the Secretary that the child has unsatisfactory school attendance that is not being reasonably addressed by the relevant parent or carer. The intention is that there will be no new referrals to SEAM in the Northern Territory under Division 3 after commencement of Division 3A.
The concept of a person responsible for the operation of a school is defined in subsection 124A(1) of the Act. The concept has its ordinary meaning but is also expressed to include the categories of person set out in the definition. Among these is a person included in a class of persons specified in an instrument made under subsection 124A(2).
Subsection 124A(2), in turn, enables the Minister, by legislative instrument to specify such a class of persons for the purposes of the definition of person responsible.
Through the Specification, certain persons who are employees of the Northern Territory Department of Education and Children’s Services and who from time to time exercise powers and functions under sections 23A and 23B of Part 4 of the Education Act (NT) in relation to school enrolment, attendance or participation are specified by the Minister to be a class of persons for the purposes of the definition of person responsible. An example is the Northern Territory Department of Education and Children’s Services’ Senior Attendance and Truancy Officers. Persons in the specified class of persons would then be able to issue notices that trigger the application of SEAM where a child is not attending school as required by law.
The Specification will ensure that decisions as to whether SEAM is triggered are made by Senior Attendance and Truancy Officers in the Northern Territory Department of Education and Children’s Services, who are actively involved with schools on a day-to-day basis, and as a result, are in the best position to assess any particular family’s circumstances and decide whether SEAM is the most appropriate option. Therefore, the Specification will safeguard a person’s right to social security which may be limited by SEAM, by seeking to ensure that SEAM is only triggered in appropriate circumstances. The Specification will add to the list of people who can decide whether a parent or carer of a child is to be subject to SEAM and direct the parent or carer of a child to participate in a conference, agree to an attendance plan and follow the actions of that plan, if a child’s attendance falls below a set benchmark.
In the Northern Territory it is intended that the Specification will enable SEAM to complement the Northern Territory Government’s Every Child, Every Day school attendance strategy. Northern Territory Senior Attendance and Truancy Officers will be able to give a relevant parent or carer a conference notice, require them to enter into a school attendance plan and, if the relevant requirements are not satisfied, give them a compliance notice under Part 3C of the Act. This will allow the Northern Territory Government to work together with Commonwealth social workers and education liaison officers in the delivery of SEAM. Working together, both governments will better support parents to meet their responsibilities for their child’s school enrolment and attendance.
Explanation of the Provisions
Section 1 states the name of the Specification.
Section 2 provides that the Specification commences on the day after it is registered.
Section 3 provides definitions for terms that are used in the Specification. Any references to the Act are references to the Social Security (Administration) Act 1999 while NT DE means the Northern Territory Department of Education and Children’s Services.
Section 4 specifies persons who are employees of the NT DE and who from time to time exercise powers and functions under sections 23A and 23B of Part 4 of the Education Act (NT) in relation to school enrolment, attendance or participation, as a class of persons for the purposes of paragraph (aa) of the definition of person responsible in subsection 124A(1) of the Act. Each person in this class of persons is a person responsible.
Consultation
The Department of Education, Employment and Workplace Relations and the Department of Industry, Innovation, Science, Research and Tertiary Education have been consulted in the preparation of the Specification to ensure a co-ordinated and consistent approach to the application of the SEAM rules across all relevant social security payments. The Department of Veterans’ Affairs was consulted because certain veterans’ payments can be affected by SEAM. The Northern Territory Government Department of Education and Children’s Services was consulted as certain of their employees are persons in the class of persons specified by the Minister in this Specification.
Regulatory Impact Analysis
The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
Social Security (Administration) (Schooling Requirements – Person Responsible) Specification 2012
This Legislative Instrument 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 Legislative Instrument
The Social Security (Administration) (Schooling Requirements – Person Responsible) Specification 2012 (the Specification) specifies a class of persons for the purposes of paragraph (aa) of the definition of ‘person responsible’ in subsection 124A(1) of the Act.
The Specification seeks to enhance the operation of the Improving School Enrolment and Attendance through Welfare Reform Measure (SEAM) in the Northern Territory by prescribing employees of the Northern Territory Department of Education and Children’s Services to assume the role of a ‘person responsible’ in relation to SEAM.
SEAM places certain conditions on income support payments received by parents to ensure that they receive the support they need to fulfil their basic responsibilities in relation to their children’s schooling. If a child has too many unexplained absences, the child’s parent(s) or carer(s) will be asked to attend a conference with a representative from the Northern Territory Government and a Centrelink Social Worker to discuss barriers impacting their child’s attendance. The conference will agree on an attendance plan, which will specify actions to be taken by the school, Centrelink and the family, to address these barriers. Non-compliance with the conference and attendance plan may result in the suspension or cancellation of specified schooling requirement payments for the parent or carer.
Through the Specification, certain persons who are employees of the Northern Territory Department of Education and Children’s Services and who from time to time exercise powers and functions under sections 23A and 23B of Part 4 of the Education Act (NT) in relation to school enrolment, attendance or participation are specified by the Minister to be a class of persons for the purposes of the definition of ‘person responsible’.
As a ‘person responsible’, Senior Attendance and Truancy Officers in the Northern Territory Department of Education and Children’s Services will be able to issue notices that trigger the application of SEAM where a child is not attending school as required by law, and may direct certain parents or carers of a school-aged child to participate in a conference, agree to an attendance plan and follow the actions of that plan in relation to SEAM.
Human rights implications
The human rights implications of SEAM itself have been considered via correspondence from the Hon Jenny Macklin MP to the Parliamentary Joint Committee on Human Rights on 27 June 2012, (Attachment E). The Social Security (Administration) (Schooling Requirement – Person Responsible) Specification 2012 imposes no additional limitation upon human rights not already imposed by SEAM, and safeguards the right to social security by ensuring decisions as to whether SEAM applies are made by persons in the best position to make that decision. To the extent that SEAM more broadly may limit human rights, those limitations are reasonable, necessary and proportionate to achieving the legitimate objective of the development and education of children.
This legislative instrument is made by JENNY MACKLIN, Minister for Families, Community Services and Indigenous Affairs, and Minister for Disability Reform, acting under section 124C of the Act and on behalf of the Minister for School Education, Early Childhood and Youth, and the Minister for Tertiary Education, Skills, Science and Research.
The Hon Jenny Macklin MP, Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform