EXPLANATORY STATEMENT
Social Security (Employment Pathway Plan Requirements) (FaHCSIA) Determination 2009 (No. 1)
Summary
The Social Security (Employment Pathway Plan Requirements) (FaHCSIA) Determination 2009 (No. 1) (Determination) is made by the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary) under subsection 731M(1B) of the Social Security Act 1991 (the Act).
The Determination applies to Special Benefit Employment Pathway Plans. The purpose of this Determination is to set out requirements that cannot be contained in a Special Benefit Employment Pathway Plan.
Background
Recipients of special benefit who have participation obligations are generally required to enter into Special Benefit Employment Pathway Plan. A Special Benefit Employment Pathway Plan sets out the activities that a recipient must undertake as deemed by the Secretary as suitable for the person. While flexibility must be maintained to ensure that a broad range of activities can be included, the Government considers that recipients of special benefit should not be compelled to undertake certain activities. This Determination sets out some of those activities.
The Determination largely replicates the content of prior determinations on the same subject matter, including the Social Security (Employment Pathway Plan Requirements) (FaCSIA) Determination 2006.
Explanation of the provisions
Section 1 states the name of the Determination.
Section 2 states that the Determination commences on 1 July 2009. This corresponds with the commencement date of the amendments to the Act under which the Determination is made. The amendments are made by the Social Security Legislation Amendment (Employment Services Reform) Act 2009.
Section 3 provides that the Social Security (Activity Agreement Requirements) (FaCSIA) Determination 2006 is revoked.
Section 4 contains interpretation provisions.
Section 5 details the activities that must not be included in Special Benefit Employment Pathway Plans.
Section 5 consists of three paragraphs. Paragraph 5(a) sets out five specific types of activities (subparagraph 5(a)(i) to (v)) that cannot be a requirement in a Special Benefit Employment Pathway Plan for the payment of special benefit. The activities in paragraph 5(a) are: participation or involvement in a criminal activity; involuntarily undergoing psychiatric or psychological treatment; involuntarily undergoing medical treatment; for a person residing in Australia, being involved or undertaking 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.
While it may be appropriate that people undertake psychological treatment or medical treatment on a voluntary basis to assist them to prepare for work, it is considered inappropriate for involuntary treatment to be a requirement in a Special Benefit Employment Pathway Plan. Subparagraphs 5(a)(i) and (ii), however, do not preclude such treatment from being included in a Special Benefit Employment Pathway Plan as a voluntary activity if a person so chooses.
Paragraph 5(b) has the effect that any activity that would contravene a Commonwealth, State or Territory discrimination or occupational health and safety law cannot be a requirement in a Special Benefit Employment Pathway Plan. Paragraph 5(b) ensures that in setting activities within an agreement, specific consideration is given to relevant anti-discrimination and health and welfare legislation.
Paragraph 5(c) applies when it has been established by medical evidence that a person has an illness, disability or injury. If this has been established, then, as set out in subparagraph 5(c)(i), an activity that medical evidence indicates would aggravate the person’s illness, disability or injury cannot be a requirement in an Special Benefit Employment Pathway Plan. Additionally, as provided for in subparagraph 5(c)(ii), an activity in circumstances where appropriate support or facilities to take account of the person’s illness disability or injury are not available 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
This Determination is based on the Social Security (Employment Pathway Plan Requirements) (DEEWR) Determination 2009 (No. 1) prepared by the Department of Education, Employment and Workplace Relations (DEEWR). In developing their instrument DEEWR undertook consultation with the following organisations:
- Homelessness Australia;
- Catholic Social Services Australia;
- Mission Australia;
- National Employment Services Association;
- National Welfare Rights Network;
- Australian Council of Social Service;
- Commonwealth Ombudsman’s office; and
- Centrelink.
The organisations consulted were provided with a draft of the Instrument and
were invited to provide comments at a forum held on 12 March 2009.
In light of the consultation undertaken by DEEWR further consultation by the Department of Families, Housing, Community Services and Indigenous Affairs was considered unnecessary.
Regulatory Impact Analysis
This Determination does not require a Regulatory Impact Statement (RIS) nor a Business Cost Calculator Figure. This Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.