EXPLANATORY STATEMENT

Social Security (Exemptions from Non-payment and Waiting Periods - Activities) (DEEWR) Specification 2013 (No. 1)

Summary

Under certain provisions of the Social Security Act 1991 (the Act), recipients of Youth Allowance (YA) and Newstart Allowance (NSA) may be subject to certain non-payment periods (e.g. seasonal work preclusion period, or due to a move to area of lower employment prospects) or waiting periods (e.g. liquid assets test waiting period or ordinary waiting period) before they can receive payment. The Social Security (Exemptions from Non-payment and Waiting Periods – Activities) (DEEWR) Specification 2013 (No. 1) (the Specification) replaces the Social Security (Exemptions from Non-payment and Waiting Periods – Activities) Specification 2009 (No. 1) and is made under subsections 549A (6), 553B (2A), 553C (5), 598 (8A), 620 (3), 633 (5) and 634 (2A) of the Act.  These subsections provide that the Secretary may, by legislative instrument, make a determination specifying certain activities for the purposes of exempting YA and NSA recipients who undertake these activities from certain non-payment and waiting periods. The instrument also relies on the authority in subsection 33(3) of the Acts Interpretation Act 1901, which, in summary, provides that where an Act confers a power to make any instrument of a legislative or administrative character, the power shall be construed as including a power to repeal, rescind, revoke, amend or vary any such instrument. 

The Specification adds a further category of activity than was listed in the Social Security (Exemptions from Non-payment and Waiting Periods – Activities) Specification 2009 (No. 1) – an activity undertaken as part of the Remote Jobs and Communities Program for those persons undertaking the program who otherwise would have been referred to another activity mentioned in the Specification.  

The Remote Jobs and Communities Program will begin on 1 July 2013. It replaces Job Services Australia, Disability Employment Services, the Indigenous Employment Program, and the Community Development Employment Projects Program as a single streamlined employment, participation and community development service for identified remote areas.

The Specification also updates the definition of Stream 4 employment services used in the Revoked Specification to services specified as “Stream 4” in the Employment Services Deed 2012-2015 (instead of the Employment Services Deed 2009-2012).

Explanation of provisions

Sections 1 and 2 of the Specification are mechanical provisions that provide for the name of the Specification and its commencement, respectively. The Specification commences on 1 July 2013 to coincide with the commencement of the Remote Jobs and Communities Program.

Section 3 revokes the Social Security (Exemptions from Non-payment and Waiting Periods – Activities) Specification 2009 (No. 1).

Section 4 contains definitions relevant to the Specification.

Section 5 specifies the activities that, if a person undertakes them, result in the person being exempt from:

• a liquid assets waiting period;
• an ordinary waiting period;
• a 26-week exclusion period, because the person has moved to an area of lower employment prospects; and
• a seasonal work preclusion period.

Paragraph 5 (a) provides that if a person claiming or qualified for YA or NSA is undertaking an activity as part of Stream 4 employment services provided to the person, they are exempt from serving the waiting or non-payment periods mentioned above. Under the Employment Services Contract 2012-2015, Stream 4 employment services are provided to the most disadvantaged or long-term unemployed jobseekers.

Paragraph 5 (b) provides that if a person claiming or qualified for YA or NSA is undertaking a rehabilitation program, they are exempt from serving the waiting or non-payment periods mentioned above. A ‘rehabilitation program’ is defined in the Act and currently means Disability Employment Services – Disability Management Service (DES-DMS), a program for people with a disability, injury or health condition which provides support in building work capacity, assistance in locating and gaining suitable work and access to on-going support.

Paragraph 5 (c) provides that if a person claiming or qualified for YA or NSA is participating in the Remote Jobs and Communities Program, they are exempt from serving the waiting or non-payment periods mentioned above if the person would have been referred to Stream 4 employment services or a rehabilitation program (i.e. DES-DMS), if not for being in the Remote Jobs and Communities Program.

With the introduction of the new Remote Jobs and Communities Program, this paragraph is intended to provide those people participating in this program the same provisions as would have applied had they been referred to Stream 4 employment services or a rehabilitation program.

Consultation

Consultation regarding this amendment was undertaken with the Department of Families, Housing, Community Services and Indigenous Affairs and the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education to ensure a co‑ordinated approach.

This amendment is of a minor technical nature and so public consultation was not undertaken.

Regulatory Impact Analysis

The Specification does not require a Regulatory Impact Statement nor a Business Cost Calculator Figure.  The Specification 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 (Exemptions from Non-payment and Waiting Periods - Activities) (DEEWR) Specification 2013 (No. 1)

The Social Security (Exemptions from Non-payment and Waiting Periods - Activities) (DEEWR) Specification 2013 (No. 1) 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 (Exemptions from Non-payment and Waiting Periods - Activities) (DEEWR) Specification 2013 (No. 1) (the Specification) revokes and replaces the Social Security (Exemptions from Non-payment and Waiting Periods – Activities) Specification 2009 (No. 1) (the Revoked Specification) to add certain income support payment recipients who are participating in the Remote Jobs and Communities Program as people who are exempt from certain non-payment and waiting periods under the Social Security Act 1991 (the Act).

Exemptions from certain waiting periods and non-payment periods

A person can be approved to receive Youth Allowance or Newstart Allowance but under the Act a person may be first required to serve one of the following:

• a liquid assets test waiting period (ss 549A and 598);
• an employment-related exclusion as a result of moving to an area of low employment prospects (ss 553B and 634);
• a seasonal work preclusion period (ss 553C and 633); and
• an ordinary waiting period (s 620).

These waiting and non-payment periods may be imposed generally because the person would have the means to support themselves or, in the case of an employment related exclusion, to discourage a person from moving to an area with low employment prospects.

However, the Act exempts certain people from serving the above mentioned periods if undertaking activities specified by the Secretary by legislative instrument. The Specification lists the following activities:

• an activity undertaken by a person as part of Stream 4 employment services[1] provided to the person;
• a rehabilitation program[2]; or
• an activity undertaken by a person as part of the Remote Jobs and Communities Program but only where a person would otherwise have been referred to activities listed in section 5 (a) or 5 (b) if not for the person being placed in the Remote Jobs and Communities Program.

The Specification adds the last category to the list of activities that exempts job seekers from certain non-payment and waiting periods in the Revoked Specification. It ensures that persons, who would be eligible for an exemption under Stream 4 or rehabilitation program exemptions but for the introduction of the Remote Jobs and Communities Program, will still be eligible for an exemption from waiting and non-payment periods while undertaking that program. This new Specification will not change the eligibility for exemptions from what is currently available in practice.

Human rights implications

The Specification engages the following human rights:

• the right to social security as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
• the right to an adequate standard of living in Article 11 of ICESCR and Article 28 of the Convention on the Rights of Persons with Disabilities  (CPRD).

The Specification promotes these rights by providing exemptions to any waiting and non-payment periods applicable under the Act for persons undertaking the activities specified. Persons undertaking the specified activities have been identified as those most in need - the long-term unemployed participating in employment services and persons undertaking rehabilitation programs. In addition, the activities specified are consistent with the progressive realisation of the right to work in Article 6(2) of ICESCR by providing technical and vocational guidance and training programs, and the rights of persons with disabilities to rehabilitation services and programs (see Article 26 and Article 27 of the CRPD).

The Specification should be considered in the context of other provisions of the Act which allow for exemptions from the waiting and non-payment periods. The Act includes hardship provisions to ensure a person is financially supported (except in relation to the employment-related exclusion under sections 553B and 634). Additionally, the Act allows for a person to be exempt from the employment-related exclusion for reasons that are consistent with human rights and freedoms (see ss 553B(3) and 634(3) of the Act), such as the rights to family life (see article 17 and 23 of the ICCPR) and rights of persons with disability. These reasons include moving to live with or near a family member who has already established a place of residence, moving for the purposes of treating or alleviating a physical disease or illness suffered by the person or by a family member; or satisfying the Secretary that the move was reasonable due to an extreme circumstance (for example, the person had been subjected to domestic or family violence in the original place of residence). In all cases where no exemption to the employment-related exclusion applies, a person may move to another area with greater job prospects in which their payment may be reinstated.

Conclusion

The Specification is compatible with human rights because it promotes the right to social security and right to an adequate standard of living.

Lisa Marian Paul AO PSM, Secretary, Department of Education, Employment and Workplace Relations

[1]  Job Services Australia offers four levels of service, or streams, to meet the needs of job seekers according to their job readiness or barriers to employment. Stream 4 services are for job seekers who have been assessed as having complex and/or multiple non-vocational barriers and who require integrated assistance which combines pre-employment and employment activities tailored to their individual needs.

[2] Under the definition in the Act, a ‘rehabilitation program’ currently means Disability Employment Services–Disability Management Service, a program which provides services to customers with temporary or permanent disability, injury or health conditions who are assessed as needing no ongoing support, or flexible ongoing support to retain employment in the open labour market.