EXPLANATORY STATEMENT
Social Security (Parenting payment participation requirements – class of persons) Instrument 2021
The Social Security (Parenting payment participation requirements – class of persons) Instrument 2021 (the Instrument) is made by the Minister for Employment, Skills, Small and Family Business under subsection 500(2) of the Social Security Act 1991 (the Act).
Purpose and Operation of Instrument
The Instrument is made under subsection 500(2) of the Act and specifies a class of persons, described as Compulsory Participants, for the purposes of paragraph 500(1)(ca) of the Act. The effect of the Instrument is that Parenting Payment recipients in this class of persons may be required to meet the participation requirements in section 500A of the Act, unless an exemption – for one or more of a range of reasons, including domestic violence, certain caring responsibilities, sickness, injury or other reasons – applies. Compulsory Participants may be required to meet these participation requirements to continue to qualify for parenting payment (paragraph 500(1)(ca) of the Act).
The Instrument supports the streamlining of ParentsNext announced by the Australian Government as part of the 2020-21 Budget.
ParentsNext
ParentsNext is a pre-employment program that aims to help parents plan and prepare for employment before their youngest child starts school. Participants, 95 per cent of whom are women, receive personalised assistance to help them identify their education and employment goals, improve their work readiness and link them to activities and services in the local community. Activities may include attending playgroups or similar activities, which provide social connections and networking opportunities for those with limited work history and significant non-vocational barriers, through to further education and training.
For many parents, particularly women, caring for young children means less time spent in the paid workforce. While valuable new skills and social networks can be acquired through parenting, parents also risk losing work-specific skills and the confidence to enter paid employment. For parents in receipt of government income support payments, this can increase the risk of long-term welfare dependency.
ParentsNext was first trialled in 10 locations across Australia from April 2016. ParentsNext demonstrated positive outcomes for parents during the trial with the ParentsNext Evaluation Report indicating that participation in the trial program improved a parents’ attitude to work and wellbeing, as well as chances of engagement in further education and employment.
ParentsNext was rolled-out nationally on 1 July 2018 and has continued to achieve positive outcomes for parents. Between 1 July 2018 and 31 December 2020, over 150,000 parents have received assistance through the program. This includes 65,500 parents who have commenced education and over 34,000 parents who have commenced employment. Over 4,500 parents have exited the program as a result of finding stable work.
The national expansion of ParentsNext included two separate streams with different eligibility requirements. The Intensive Stream provided services in 30 locations, including the 10 original pilot locations and a further 20 locations where a higher proportion of Parenting Payment recipients identified as Indigenous. Intensive Stream participants received additional assistance including access to the Participation Fund (a flexible pool of funds Providers can use to assist participants to gain the tools, skills and experience needed to prepare for future employment), employer wage subsidies (financial incentives used to encourage employers to hire work ready parents), and the Relocation Assistance To Take Up a Job (RATTUAJ) Program (financial assistance for parents to relocate to take up an offer of employment).
The Targeted Stream was delivered to disadvantaged parents with young children in the remaining non-remote locations. As at 31 December 2020, 57 per cent of ParentsNext participants were in the Targeted Stream and 43 per cent were in the Intensive Stream.
At times, the two-stream service resulted in complexity for ParentsNext participants and providers. The Instrument outlines changes to the program to streamline and simplify eligibility requirements.
Under the new eligibility requirements, parents with a lower level of educational attainment and those that were already receiving income support before they had their youngest child receive support earlier than parents who were employed immediately prior to having their youngest child. This recognises that parents with a lower level of education or a longer time on income support are at greater risk of long-term welfare dependency and are likely to benefit from early support to help them plan and prepare for employment before their youngest child starts school.
Any existing Intensive and Targeted Stream participants who, from 1 July 2021, do not become Compulsory Participants because they do not meet the new eligibility requirements but who remain in receipt of parenting payment will be able to volunteer to remain in ParentsNext, but will not be compelled to do so.
Additional assistance for ParentsNext participants
Separately to the Instrument, the single stream service will also include extended access to the Participation Fund, employer wage subsidies, and the RATTUAJ Program for all participants. This will mean that more than 50 per cent of ParentsNext participants, including more than 6,600 Indigenous participants, will have access to financial assistance not previously available to help them achieve their education and employment goals.
The Targeted Compliance Framework will apply in the same way as previously
Compulsory Participants will be subject to the Targeted Compliance Framework (TCF) in Division 3AA of Part 3 of the Social Security (Administration) Act 1999 in the same way that existing Intensive and Targeted Stream participants are currently subject to the TCF.
Evidence from the program indicates that those most in need of the support provided are less likely to participate if it is not compulsory with attendance at appointments increasing from 66 per cent during the trial (where attendance was voluntary) to almost 80 per cent since the national roll-out (when ParentsNext participants became subject to the TCF). The application of the TCF also encourages participants to develop work like behaviours to support them to transition to work when they are ready or to other employment service programs.
The Instrument – specifying a class of persons for ParentsNext
The Instrument repeals the Social Security (Parenting payment participation requirements – classes of persons) Instrument 2018 (No. 1) (the 2018 Instrument). The Instrument will commence on 1 July 2021. It specifies one class of persons, in contrast to the 2018 Instrument which had specified two classes of persons. Through specifying a single class of persons, the Instrument will bring together the Intensive and Targeted Streams, as specified in the 2018 Instrument, by aligning and simplifying the eligibility criteria that will apply to all Parenting Payment recipients. A person in this class may be required to adhere to the participation requirements in section 500A of the Act to remain qualified for the payment, if the Secretary of the Department of Education, Skills and Employment or a delegate of the Secretary decides to impose such requirements on the person.
However, such a person will not be required to comply with participation requirements during a period where due to their circumstances, one or more of a range of exemptions applies to them – including to domestic violence, certain caring responsibilities, sickness, injury or other reasons. These exemptions are set out in Division 3A of Part 2.10 of the Act.
Regulatory Impact Analysis
The Office of Best Practice Regulation (OBPR) confirmed on 8 December 2020 that the Instrument does not require a Regulation Impact Statement. The Instrument is not regulatory in nature, will not impact business activity, and will have no, or minimal compliance costs or competition impact. (OBPR Ref No.: 42962).
Commencement
The Instrument will commence on 1 July 2021.
Consultation
In making the changes to the Instrument the department has considered feedback from key stakeholders including participants, providers and peak bodies. Feedback received since the national expansion, including at the ParentsNext conference in 2019, highlighted the complexity of a two-Stream eligibility criteria and delivery model, and with limiting access to additional supports of the Participation Fund, wage subsidies and relocation assistance to only one Stream. The Instrument directly incorporates this feedback by streamlining the eligibility criteria into a single Stream of Compulsory Participants receiving consistent financial support.
The consultation satisfies section 17 of the Legislation Act 2003.
Explanation of the provisions
Section 1 – Name of instrument
This section provides that the title of the Instrument is the Social Security (Parenting payment participation requirements – class of persons) Instrument 2021.
Section 2 – Commencement
This section provides that the Instrument will commence on 1 July 2021.
Section 3 – Authority
This section provides that the Instrument is made under subsection 500(2) of the Act.
Section 4 – Definitions
Section 4 defines terms used in the Instrument. The notes in section 4 alert the reader to the fact that certain expressions used in the Instrument are defined in the Act and have the meanings in the Act.
For example, the term ‘PP child’ is used in the Instrument and is defined in the Act. The Act provides that a person has a PP child if:
(i) the person has a child, is a member of a couple, the child has not turned 6, and the person is the principal carer of the child; or
(ii) the person has a child, is not a member of a couple, the child has not turned 8, and the person is the principal carer of the child.
The definitions in the Instrument are relevant to determining which persons fall within the class of persons in section 6. In particular:
(a) The definition of early school leaver is a person who is under 22 years of age and has not completed the final year of school.
(b) The definition of final year of school is the final year of secondary school or equivalent level of education.
(c) The definition of jobactive employment region is a geographical region in Australia in which employment services were delivered by one or more jobactive employment service providers on 1 December 2020. Reference to a specific date helps to identify the applicable regions with additional clarity. The date of 1 December 2020 is a specific date for that purpose and has no other significance.
(d) The definition of work is:
- work that generates employment income; or
- work where the person carries on a business and the most recent information reported to Services Australia in relation to the profitability of the business was that the business was generating a profit.
Section 5 – Schedule 1
This section repeals the 2018 Instrument which specifies the classes of persons subject to the existing ParentsNext program.
Section 6 – Class of persons – Compulsory Participant
Section 6 specifies the Compulsory Participant class of persons. Compulsory Participants are parents who face an increased risk of long-term welfare dependency having regard to their age, their highest level of education, recent employment circumstances and history of income support, as well as the age of their youngest child for which they are receiving a Parenting Payment.
Compulsory Participants may also be approaching a point where they will have compulsory job search requirements (which occurs when their youngest child turns 6 and they move to a different employment service program). Compulsory Participants will benefit from the extra support available through ParentsNext to overcome barriers to planning for their future education and employment.
Subsection 6(1) provides that a person is in the Compulsory Participant class of persons if, on a particular day on or after 1 July 2021, the criteria set out in paragraphs 6(1)(a) – (f) apply to the person.
Paragraph 6(1)(a) requires that the person resides in a jobactive employment region.
Paragraph 6(1)(b) requires that the person has been receiving a parenting payment (partnered or single) for a continuous period of at least 6 months prior to the particular day.
Paragraph 6(1)(c) requires that the person has a youngest PP child who is at least 9 months old and under 6 years of age. Engaging eligible parents with early assistance will allow them to use more of their time out of the labour force to become work ready.
Paragraph 6(1)(d) requires that the person has not engaged in work in the 6 month period immediately prior to the particular day.
Paragraph 6(1)(e) requires that the person be under 55 years of age.
Paragraph 6(1)(f) requires that the person:
- is an early school leaver; or
- is at least 22 years of age; and
- has not completed the final year of school; and
- has continuously received an income support payment or combination of income support payments for at least two years immediately prior to the particular day; or
- has completed their final year of school and continuously received an income support payment or combination of income support payments for at least four years immediately prior to the particular day.
Subsection 6(2) provides that a person ceases to be in the Compulsory Participant class of persons if the person ceases to meet the criteria in paragraph 6(1)(a), (c) or (e). This would occur if the person ceases to reside in a jobactive employment region, or whose youngest PP child is no longer between 9 months and 6 years of age, or if the person is no longer under 55 years of age.
A note to section 6 alerts the reader to the fact that section 38B of the Act relates when a person will be treated as being in continuous receipt of income support payments.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Parenting payment participation requirements – class of persons) Instrument 2021 (the Instrument)
The Disallowable 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 Disallowable Legislative Instrument
The Instrument is made under subsection 500(2) of the Act and specifies a class of persons, described as Compulsory Participants, for the purposes of paragraph 500(1)(ca) of the Act. The effect of the Instrument is that Parenting Payment recipients in this class of persons may be required to meet the participation requirements in section 500A of the Act, which must take account of their circumstances, unless an exemption – for one or more of a range of reasons, including domestic violence, certain caring responsibilities, sickness, injury – applies. Compulsory Participants may be required to meet these participation requirements to continue to qualify for parenting payment (paragraph 500(1)(ca) of the Act).
The Instrument supports the streamlining of ParentsNext announced by the Australian Government as part of the 2020-21 Budget.
ParentsNext
ParentsNext is a pre-employment program that aims to help parents plan and prepare for employment before their youngest child starts school. Participants, 95 per cent of whom are women, receive personalised assistance to help them identify their education and employment goals, improve their work readiness and link them to activities and services in the local community. Activities may include attending playgroups or similar activities, which provide social connections and networking opportunities for those with limited work history and significant non-vocational barriers, through to further education and training.
For many parents, particularly women, caring for young children means less time spent in the paid workforce. While valuable new skills and social networks can be acquired through parenting, parents also risk losing work-specific skills and the confidence to enter paid employment. For parents in receipt of government income support payments, this can increase the risk of long-term welfare dependency.
ParentsNext was first trialled in 10 locations across Australia from April 2016. ParentsNext demonstrated positive outcomes for parents during the trial with the ParentsNext Evaluation Report indicating that participation in the trial program improved a parents’ attitude to work and wellbeing, as well as chances of engagement in further education and employment.
ParentsNext was rolled-out nationally on 1 July 2018 and has continued to achieve positive outcomes for parents. Between 1 July 2018 and 31 December 2020, over 150,000 parents have received assistance through the program. This includes 65,500 parents who have commenced education and over 34,000 parents who have commenced employment. Over 4,500 parents have exited the program as a result of finding stable work.
The national expansion of ParentsNext included two separate streams with different eligibility requirements. The Intensive Stream provided services in 30 locations, including the 10 original pilot locations and a further 20 locations where a higher proportion of Parenting Payment recipients identified as Indigenous. Intensive Stream participants received additional assistance including access to the Participation Fund (a flexible pool of funds Providers can use to assist participants to gain the tools, skills and experience needed to prepare for future employment), employer wage subsidies (financial incentives used to encourage employers to hire work ready parents), and the Relocation Assistance To Take Up a Job (RATTUAJ) Program (financial assistance for parents to relocate to take up an offer of employment).
The Targeted Stream was delivered to disadvantaged parents with young children in the remaining non-remote locations. As at 31 December 2020, 57 per cent of ParentsNext participants were in the Targeted Stream and 43 per cent were in the Intensive Stream.
At times, the two-stream service resulted in complexity for ParentsNext participants and providers. The Instrument outlines changes to the program to streamline and simplify eligibility requirements.
Under the new eligibility requirements, parents with a lower level of educational attainment and those that were already receiving income support before they had their youngest child receive support earlier than parents who were employed immediately prior to having their youngest child. This recognises that parents with a lower level of education or a longer time on income support are at greater risk of long-term welfare dependency and are likely to benefit from early support to help them plan and prepare for employment before their youngest child starts school.
Any existing Intensive and Targeted Stream participants who, from 1 July 2021, do not become Compulsory Participants because they do not meet the new eligibility requirements but who remain in receipt of parenting payment will be able to volunteer to remain in ParentsNext, but will not be compelled to do so.
Additional assistance for ParentsNext participants
Separately to the Instrument, the single stream service will also include extended access to the Participation Fund, employer wage subsidies, and the RATTUAJ Program for all participants. This will mean that more than 50 per cent of ParentsNext participants, including more than 6,600 Indigenous participants, will have access to financial assistance not previously available to help them achieve their education and employment goals.
The Targeted Compliance Framework will apply in the same way as previously
Compulsory Participants will be subject to the Targeted Compliance Framework (TCF) in Division 3AA of Part 3 of the Social Security (Administration) Act 1999 in the same way that existing Intensive and Targeted Stream participants are currently subject to the TCF.
Evidence from the program indicates that those most in need of the support provided are less likely to participate if it is not compulsory with attendance at appointments increasing from 66 per cent during the trial (where attendance was voluntary) to almost 80 per cent since the national roll-out (when ParentsNext participants became subject to the TCF). The application of the TCF also encourages participants to develop work like behaviours to support them to transition to work when they are ready or to other employment service programs.
The Instrument – specifying a class of persons for ParentsNext
The Instrument repeals the Social Security (Parenting payment participation requirements – classes of persons) Instrument 2018 (No. 1) (the 2018 Instrument). The Instrument will commence on 1 July 2021. It specifies one class of persons, in contrast to the 2018 Instrument which had specified two classes of persons. Through specifying a single class of persons, the Instrument will bring together the Intensive and Targeted Streams, as specified in the 2018 Instrument, by aligning and simplifying the eligibility criteria that will apply to all Parenting Payment recipients. A person in this class may be required to adhere to the participation requirements in section 500A of the Act to remain qualified for the payment, if the Secretary of the Department of Education, Skills and Employment or a delegate of the Secretary decides to impose such requirements on the person.
However, such a person will not be required to comply with participation requirements during a period where one or more of a range of exemptions applies to them – for example due to domestic violence, certain caring responsibilities, sickness or injury. These exemptions are set out in Division 3A of Part 2.10 of the Act.
Human rights implications
- the right to social security – Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 26 of the Convention on the Rights of the Child (CRC)
- the right to an adequate standard of living – Article 11 of ICESCR and Article 27 of the CRC
- the right to work – Articles 2 and 6 of ICESCR and Article 11 of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)
- the right to education – Article 13 of ICESCR, article 10 of CEDAW and Article 28 of the CRC
- the right to equality and non-discrimination – Articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR), Article 2 of the CRC, Articles 2, 3, 4 and 15 of CEDAW, and Article 5 of the International Convention on all Forms of Racial Discrimination (CERD)
- the obligation to consider the best interests of the child in all actions concerning children – Article 3 of the CRC.
- Right to social security/Right to an adequate standard of living
Article 9 of the ICESCR recognises the right of every person to social security. The right to social security requires State Parties to establish a social security system and, within their maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education. Article 26 of the CRC recognises the right of every child to benefit from social security, taking into account the resources and circumstances of both the child and the person responsible for the child.
Article 11 of the ICESCR recognises the right of every person to an adequate standard of living including adequate food, water and housing, and to the continuous improvement of living conditions. Article 27 of the CRC also recognises the right of the child to an adequate standard of living for the child’s physical, mental, spiritual, moral and social development.
The Committee on Economic, Social and Cultural Rights (CESCR) has stated that limitations on this right must be proportional; the least restrictive alternative should be adopted where several types of limitations are available; and, where such limitations are permitted, they should be of limited duration and subject to review.[1] The CESCR is a body of independent experts that monitor the implementation of the ICESCR. The CESCR’s views are influential but not binding on States Parties to the ICESCR.
As noted in the Overview above, by virtue of the Instrument, a person who falls within the Compulsory Participant class of persons may be required to meet participation requirements under section 500A of the Act if an exemption does not apply.
Failure to meet these requirements will result in the person being subject to the relevant compliance action under the TCF including the suspension, reduction or cancellation of the person’s parenting payment, depending on the circumstances. This engages the right to social security and the right to an adequate standard of living.
Reason for limitation - legitimate objective
The objective of ParentsNext is to encourage and assist eligible parents who are in receipt of parenting payment and have young children to identify and make progress towards achieving their education and employment goals through participation in activities and connecting to local services. This is a legitimate objective because the attainment of educational qualifications and skills that support undertaking work assists parents to find employment when their children reach school age and reduces the risk of long-term poverty and welfare dependency for themselves and their children.
Rational connection between the limitation and the objective
Participants often come from families that are subject to intergenerational disadvantage and may suffer from complex circumstances that act as barriers to employment and education. These circumstances can include homelessness, domestic violence, drug and alcohol dependency, mental health challenges, and/or language and numeracy difficulty. This can mean they are unable to identify ways to improve their education and work prospects, and are discouraged from seeking, or unable to seek, support.
The risk of compliance action has proved to be effective in ensuring participants engage with providers delivering ParentsNext and similar programs, and are able to benefit from the services that they offer (including support to address the barriers to employment and education identified above). Linking participation requirements to the continued receipt of income support payments also acts as a re-engagement mechanism to ensure participants continue to actively participate and are focussing on the long-term outcomes for themselves and their children.
As noted above, ParentsNext was first trialled in 10 locations across Australia from April 2016. ParentsNext demonstrated positive outcomes for parents during the trial with the ParentsNext Evaluation Report indicating that participation in the trial program improved a parent’s attitude to work, confidence, self-esteem and wellbeing, as well as chances of engagement in further education and employment.
ParentsNext was rolled-out nationally on 1 July 2018 and has continued to achieve positive outcomes for parents. The majority of participants consider it to be an effective program.
Between 1 July 2018 and 31 December 2020, over 150,000 parents have received assistance through the program. This includes 65,500 parents who have commenced education and over 34,000 parents who have commenced employment. Over 4,500 parents have exited the program as a result of finding stable work.
Limitation is reasonable, necessary and proportionate
Any limitations there may be to the right to social security and the right to an adequate standard of living, due to imposing requirements directed at overcoming barriers to employment, are reasonable and necessary in view of the evidence outlined above. The limitations are also proportionate for the reasons discussed below.
A person who falls within the Compulsory Participant class is required to attend quarterly appointments with ParentsNext providers, agree to a Participation Plan containing a compulsory activity – unless the most suitable activity can only be voluntary e.g. medical treatment – and participate in that activity. This is much less than standard participation requirements for those serviced by jobactive employment service providers, which usually include more regular appointments, monthly job search requirements, and more intensive activities with minimum hourly requirements.
A ParentsNext provider is required to work actively with a person to understand their specific needs, the barriers to employment and education that they face, and their family circumstances in determining an appropriate compulsory activity. In agreeing the Participation Plan, the person agrees that the compulsory activity is appropriate and undertakes to complete the activity.
Activities may include, for example, updating existing skills or gaining recognition of prior skills; training or further study (particularly Year 12 or Certificate III qualifications for parents who have not completed the final year of secondary school); referrals to local services, literacy and numeracy courses; or referrals to services to address non-vocational barriers to employment like confidence building, health care or counselling.
Participation requirements must take account of the person’s capacity to comply with the requirements and of their needs – section 501A(6) of the Act. In having regard to a person’s capacity to comply, a range of circumstances must be taken account of, including circumstances relating to their health, skills, education, local labour market, family and caring responsibilities, and any other circumstances which the person considers to be relevant, or which the Secretary of the Department of Education, Skills and Employment or a delegate considers to be relevant – section 501A(7) of the Act.
In relation to the compliance action that may (or will) be taken if a person fails to comply with their participation requirements, all participants are given two business days to resolve any non-compliance to facilitate their re-engagement with the program, if required, before a payment suspension is applied. Should a participant’s parenting payment be suspended, the payment suspension is lifted once the participant re-engages.
Should a payment suspension result in a participant’s payment being temporarily withheld, the participant will still receive the full amount of payment (including back payment) once they have re-engaged in the program.
A financial penalty or payment cancellation will not occur if the person has a reasonable excuse for the failure. A reasonable excuse includes, for example, where the person is suffering from a serious illness, has unforeseen family or caring responsibilities, or is experiencing family or domestic violence.
Participants are unlikely to incur financial penalties, as penalties will only be applied if there are repeated instances of non-compliance. Providers work closely with participants, who can have their participation requirements adjusted if they are having difficulty meeting them – for example appointment times can be changed or participants can be referred to different activities.
Also, not all aspects of the TCF apply to ParentsNext participants. The Social Security (Administration) Act 1999 expressly provides that participants cannot be subject to compliance action for work refusal failures (refusing an offer of suitable employment without a reasonable excuse) or for unemployment failures (becoming unemployed due to a voluntary act which was not reasonable, or due to misconduct as an employee) – see paragraphs 42AD(aa) and 42AE(1)(aa) respectively. Further, participants will also be able to seek a review of any decision to apply a financial penalty or to cancel their payment. Finally, notwithstanding non-compliance, Family Tax Benefits payable to the person remain unaffected.
ParentsNext providers make participants aware of the risks of not meeting participation requirements and work actively to support them to do so. Participants also receive notifications, including SMS and email reminders, about the requirements they must meet. Once commenced in the program, participants usually see its benefits very quickly and choose to actively engage for the benefit of themselves and their families.
2. Right to work
Article 2 of ICESCR requires that each State Party undertakes to take steps to the maximum of its available resources, especially economic and technical, to realise the rights recognised in the Covenant, particularly through legislative measures. Article 6 of ICESCR recognises the right of every person to the opportunity to gain a living by work which they freely choose or accept, and Article 11 of CEDAW provides for equality of men and women in employment, including the right to free choice of profession and employment.
The Instrument promotes the right to work by increasing the opportunities of those within the specified class to gain employment. Participation in the ParentsNext program will assist those persons to identify their education and employment goals and to achieve these goals by participating in activities and connecting to local support services. Participants will not be required to look for work, but will be supported to increase their education, and improve their work readiness, broader networks, and greater self-confidence to better enable them to work when their youngest child starts school or earlier should they choose to do so.
3. Right to education
Article 13 of ICESCR recognises the right of every person to education. Relevantly, it recognises that secondary education, including technical and vocational secondary education, should be made generally available and accessible to all. Article 28 of the CRC recognises the right of children to education and Article 10 of CEDAW provides for equality in access to education for women and for the organisation of programs for girls and women who have left school prematurely.
The Instrument promotes the right to education by providing support for parents, including young parents, to continue their education. Participants, particularly early school leavers will receive support to identify education or training that will assist them to attain a Year 12 (or Certificate III equivalent qualification). The program will support all participants to identify and work towards their education goals. As noted above, ParentsNext providers may assist participants through the use of the Participation Fund to achieve their education and employment goals. The program can also assist participants to address literacy and numeracy difficulties, where needed.
4. Right to equality and non-discrimination
The right to equality and non-discrimination is protected by Articles 2, 16 and 26 of the ICCPR and Article 2 of the CRC. This is a fundamental human right that is essential to the protection and respect of all human rights. It provides that every person is entitled to enjoy their rights without discrimination of any kind on the basis of a number of prohibited grounds, and that all people are equal before the law and entitled without discrimination to the equal and non-discriminatory protection of the law.
The United Nations Human Rights Committee (HRC) which monitors implementation of the ICCPR by its State parties defines 'discrimination' as a distinction based on a personal attribute (for example, race, sex or religion), which has either the purpose ('direct' discrimination), or the effect ('indirect' discrimination), of adversely affecting human rights.[2] The HRC has explained indirect discrimination as 'a rule or measure that is neutral on its face or without intent to discriminate', which exclusively or disproportionately affects people with a particular personal attribute. Views of the Committee are influential but not binding on States Parties to the ICCPR.
Article 5 of the CERD reinforces the general prohibition in the ICCPR and recognises the right of everyone to equality before the law, without distinction as to race, colour, or national or ethnic origin.
Articles 2, 3, 4 and 15 of CEDAW further describe the content of the right to equality and non-discrimination as it relates to women, outlining the specific elements that States Parties are required to take into account to ensure relevant rights are maintained for women.
The Instrument, by specifying a particular group of parents who comprise mostly young people, early school leavers, and females, engages the right to equality and non‑discrimination. The ParentsNext program is designed to support participants depending on whether they are in a particular age range and meet other criteria. The identification of participants based on their age is direct discrimination on the basis of a personal attribute and therefore limits the right to equality and non-discrimination.
ParentsNext could also be considered indirectly discriminatory on the basis of sex, as the vast majority of those affected by the Instrument will be female, with 95 per cent of current or previous participants being female. Any indirect discrimination against females may limit the right to equality and non-discrimination.
In contrast to the 2018 Instrument, the Instrument does not make reference to Indigenous people or to any other racial group.
Permissible limitation - legitimate objective
It is appropriate to restrict the eligibility for ParentsNext to particular groups of parents as the program is designed to provide those groups with support to address the specific disadvantage they face.
Since the national roll out on 1 July 2018, ParentsNext has continued to achieve positive outcomes for Australian parents. As noted above, between 1 July 2018 and 31 December 2020, over 150,000 parents have received assistance through the program. This includes 65,500 parents who have commenced education and over 34,000 parents who have commenced employment. Over 4,500 parents have exited the program as a result of finding stable work.
The Instrument targets those groups which are most at risk of experiencing sustained hardship without appropriate assistance. That is, historically, 95 per cent of ParentsNext participants have been women, many of whom are young Australians, who have not completed their final year of school. The Instrument aims to improve the ability of particular groups to access education (such as a year 12 certificate), and community services, to improve their work readiness and return to, or enter the work force once their youngest child starts school. By doing so, the Instrument aims to reduce intergenerational poverty and welfare dependence.
Rational connection between the limitation and the objective
If parents on income support are assisted to gain employment-related skills and education earlier, as well as using the time when their children are young to stabilise their family life, they are more likely to gain ongoing employment and less likely to need to rely on income support on a continuing basis. ParentsNext will assist more parents to identify their barriers to education and employment, to develop a plan to address those barriers and to participate in activities to meet their education and employment goals, thereby increasing their capacity to work in the future.
Limitation is reasonable, necessary and proportionate
The identification of specific groups of parents, including by reference to their age, their children’s age, and indirectly, their sex, is reasonable, necessary and sufficiently precise to assist those parents to improve their family wellbeing, educational attainment and employment prospects and to begin to disrupt the intergenerational disadvantage from which many suffer. It also recognises that the right to education and the right to work are essential for realising other human rights.
5. Rights of the Child
The obligation to consider the best interests of the child as a primary consideration is contained in article 3 of the CRC. The objective of ParentsNext is to encourage and assist parents of young children in receipt of parenting payment to progress towards their education and employment goals. The attainment of educational qualifications and work-specific skills will assist parents to find employment in the future, therefore helping to disrupt intergenerational disadvantage and reducing the risk of long-term welfare dependency for participating parents and their children.
The rights of children are given primary importance in ParentsNext. A ParentsNext provider is required to work actively with participants to understand their specific needs, the barriers to employment and education that they face, and their family circumstances. Participation in ParentsNext will connect parents, and by proxy their children, with local services and community organisations which will assist and support them to meet their identified needs. Depending on a person’s circumstances, support provided to the person may include assistance with accessing appropriate childcare or other services.
Finally, notwithstanding non-compliance of a participant with participation requirements, Family Tax Benefits payable to that person will remain unaffected.
Conclusion
The Disallowable Legislative Instrument is compatible with human rights. It promotes the right to work, the right to education, and the rights of the child. To the extent that it limits rights to social security and an adequate standard of living, or the right to equality and non-discrimination, those limitations are for a legitimate objective, have a rational connection to achieving the objective, and are reasonable, necessary and proportionate to achieve the objective. That objective is to help parents plan and prepare for employment before their youngest child starts school by assisting them to identify their education and employment goals and to attain these goals by participating in activities and connecting them to relevant local services.
[1] See UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 19: The right to social security (Art. 9 of the Covenant), 4 February 2008, E/C.12/GC/19, available at: https://www.refworld.org/docid/47b17b5b39c.html [accessed 21 December 2020].
[2] See CCPR, General comment No. 18: Non discrimination, 10 November 1989, available at: https://www.refworld.org/docid/453883fa8.html [accessed 21 December 2020]