EXPLANATORY STATEMENT
Social Security (Exemptions from Non-payment and Waiting Periods – Activities) Specification 2015
Issued by the authority of the Secretary of the Department of Social Services
Social Security Act 1991
Social Security (Exemptions from Non-payment and Waiting Periods – Activities) Specification 2015
Purpose
The Social Security (Exemptions from Non-payment and Waiting Periods – Activities) Specification 2015 (the Specification) revokes and replaces the Social Security (Exemptions from Non-payment and Waiting Periods – Activities) (DEEWR) Specification 2013 (No. 1) (the Revoked Specification). The substance of the Revoked Specification has been retained in the Specification subject to some minor changes to replace the references to Stream 4 employment services with references to services specified as Stream C under the new jobactive employment services model to be introduced from 1 July 2015.
Background
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 an 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 Specification replaces the Revoked Specification 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, specify certain activities for the purposes of exempting a person who undertakes those activities from certain non-payment and waiting periods for YA and NSA. The Specification 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.
Commencement
The Specification commences on 1 July 2015.
Consultation
Consultation regarding this Specification was undertaken with the Department of Employment to ensure a co‑ordinated approach.
The amendments made by this Specification are of a minor technical nature and so public consultation was not undertaken.
Regulation Impact Statement (RIS)
The Specification does not require a Regulatory Impact Statement or 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.
Explanation of the provisions
Sections 1 and 2
These sections are mechanical provisions that provide for the name of the Specification and its commencement, respectively. The Specification commences on 1 July 2015.
Section 3
This section revokes the Social Security (Exemptions from Non-payment and Waiting Periods – Activities) (DEEWR) Specification 2013 (No. 1).
Section 4
This section contains definitions relevant to the Specification. The definition of Stream 4 employment services used in the Revoked Specification is replaced with a definition of Stream C employment services. Under the new jobactive employment services model to be introduced from 1 July 2015, new Stream C will be equivalent to previous Stream 4. Stream C employment services are provided to the most disadvantaged or long-term unemployed jobseekers. The definitions of rehabilitation program and Remote Jobs and Communities Program are the same as those definitions contained in the Revoked Specification.
Section 5
This section 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.
The reference to Stream 4 in the Revoked Specification is replaced with Stream C in the Specification.
Paragraph 5(a)
This paragraph provides that a person who is undertaking an activity as part of Stream C employment services provided to the person is exempt from serving the waiting or non-payment periods mentioned above for YA and NSA. Under the jobactive employment services model, Stream C employment services are provided to the most disadvantaged or long-term unemployed jobseekers.
Paragraph 5(b)
This paragraph provides that a person who is undertaking a rehabilitation program is exempt from serving the waiting or non-payment periods mentioned above for YA and NSA. A ‘rehabilitation program’ is defined in the Act.
Paragraph 5(c)
This paragraph provides that a person who is participating in the Remote Jobs and Communities Program is exempt from serving the waiting or non-payment periods mentioned above for YA and NSA if the person would have been undertaking Stream C employment services or a rehabilitation program, if not for being in the Remote Jobs and Communities Program.
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) Specification 2015
The Social Security (Exemptions from Non-payment and Waiting Periods - Activities) Specification 2015 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) Specification 2015 (the Specification) revokes and replaces the Social Security (Exemptions from Non-payment and Waiting Periods - Activities) (DEEWR) Specification 2013 (No. 1) (the Revoked Specification) in order to reflect the introduction of jobactive employment services from 1 July 2015. The jobactive Deed 2015-2020 replaces the existing Employment Services Deed 2012-2015 with Stream 4 services being provided for under the new Stream C. The Specification is made under subsections 549A(6), 553B(2A), 553C(5), 598(8A), 620(3), 633(5) and 634(2A) of the Social Security Act 1991 (the Act).
Exemptions from certain waiting periods and non-payment periods
A person whose claim for youth allowance or newstart allowance has been granted under the Act 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 C 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) of the Specification if not for the person being placed in the Remote Jobs and Communities Program.
The Specification replaces the reference to ‘Stream 4’ in the Revoked Specification with ‘Stream C’ to ensure that persons, who would be eligible for an exemption under Stream 4 but for the introduction of jobactive, will still be eligible for an exemption from waiting and non-payment periods while undertaking the equivalent activities under Stream C. 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 certain 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 programmes. 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 exemptions from certain waiting and non-payment periods on the basis of financial hardship 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 and 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. To the extent that it may have limited adverse impact on a person’s right to social security and an adequate standard of living, the limitation is reasonable, proportionate to the policy objective and for legitimate reasons.
Finn Pratt, Secretary, Department of Social Services
[1] Three levels of service, or streams, are offered in jobactive to meet the needs of job seekers according to their job readiness or barriers to employment. Stream C 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 programme 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.