EXPLANATORY STATEMENT
Issued by the authority of the Minister for Social Services
Social Security Act 1991
Social Security (Prospective Determinations) Guidelines 2015
Purpose
These Guidelines provide guidance to the Secretary in deciding whether the criteria for making a prospective determination that a person is qualified for parenting payment, youth allowance or newstart allowance are satisfied.
These Guidelines also revoke and replace the Social Security (Prospective Determinations for Newstart Recipients) Guidelines No. 1 of 1996 and the Social Security (Prospective Determinations for Parenting Payment Recipients) (DEWR) Guidelines 2006).
Background
Parenting payment recipients who have participation requirements, and activity tested youth allowance and newstart allowance recipients are required to demonstrate that they continue to qualify for payment on a fortnightly basis. However, under sections 500E, 546 and 600 of the Social Security Act 1991 (the Act), the Secretary can make a prospective determination for parenting payment, youth allowance and newstart allowance. That is, the Secretary can determine in advance that a person will be qualified for payment for a period longer than a fortnight with a consequence that the person is not required to demonstrate their qualification on a fortnightly basis during that period.
In making such a determination, paragraphs 500E(1)(b), 546(1)(b) and 600(1)(b) of the Act provide that the Secretary must be satisfied of a number of criteria at the start of the prospective determination period. These are:
that a person is reasonably expected to qualify for parenting payment, youth allowance or newstart allowance during the period;
it is reasonable to expect that parenting payment, youth allowance or newstart allowance will be payable to the person; and
the person will comply with the Act during the period.
Paragraphs 500E(2)(a), 546(2)(a) and 600(2)(a) of the Act provide that the Minister must determine guidelines for making decisions under paragraphs 500E(1)(b), 546(1)(b) and 600(1)(b). This legislative instrument provides guidelines for the purposes of paragraph 500E(2)(a), 546(2)(a) and 600(2)(a) (‘the Guidelines’).
Paragraphs 500E(2)(b), 546(2)(b) and 600(2)(b) of the Act provide that the Minister may revoke or vary a determination by legislative instrument. The Guidelines revoke the previous guidelines in relation to prospective determinations for parenting payment and newstart allowance. There are no previous guidelines in relation to prospective determinations for youth allowance.
These Guidelines commence immediately after the revocation of the previous guidelines in relation to parenting payment and newstart allowance, as required by subsections 500E(2) 546(2) and 600(2).
Commencement
The Guidelines commence on the day after they are registered.
Consultation
The Guidelines were developed in consultation with the Department of Human Services as the agency responsible for delivery of parenting payment, youth allowance, and newstart allowance. No issues or concerns were identified during consultation.
Further consultation was considered unnecessary as the Guidelines propose only minor changes to the existing arrangements, primarily to simplify and align the criteria across payments.
Regulation Impact Statement (RIS)
The Guidelines do not require a Regulatory Impact Statement (Office of Best Practice Regulation reference number 19714). The changes proposed by the Guidelines are minor and machinery in nature, with no compliance costs.
Explanation of the provisions
Section 1
This section provides how the Guidelines are to be cited, that is, as the Social Security (Prospective Determinations) Guidelines 2015.
Section 2
This section provides that the Guidelines commence on the day after they are registered.
Section 3
This section provides that the Social Security (Prospective Determinations for Newstart Recipients) Guidelines No. 1 of 1996 and the Social Security (Prospective Determinations for Parenting Payment Recipients) (DEWR) Guidelines 2006 are revoked.
These Guidelines are consolidated guidelines for prospective determinations for parenting payment, youth allowance and newstart allowance. As a result, the previous guidelines in relation to prospective determinations for parenting payment and newstart allowance, in effect prior to the commencement of these Guidelines, are no longer necessary. There are not currently any guidelines in effect in relation to prospective determinations for youth allowance.
Section 4
This section provides a definition of terms used in the Guidelines. The only defined term is ‘the Act’ which means the Social Security Act 1991.
Other words and phrases used in the Guidelines that are defined in the Act have the meaning given by the Act.
Section 5
Section 5 sets out the purpose of the Guidelines. The purpose is to provide guidance to the Secretary in deciding whether the criteria set out in paragraphs 500E(1)(b), 546(1)(b) and 600(1)(b) of the Act are satisfied.
Section 6
This section provides guidance to the Secretary in making decisions about prospective determinations.
If the Secretary is satisfied that one or more of the matters listed in paragraphs 6(a) to (d) apply to the person, the Secretary may conclude that the person does not satisfy the criteria relating to prospective determinations and is not qualified for a prospective determination.
The first matter in paragraph 6(a) is where a person is required to provide additional evidence that the person satisfies:
- the participation requirements for parenting payment; or
- the activity test for youth allowance or newstart allowance.
Such additional evidence may include written records of approaches made to potential employers about work. Where a person is required to provide such additional evidence, it is likely to demonstrate that the person may need to report ongoing qualification for the relevant payments on a fortnightly basis. In such a case, a person may not reasonably be expected to qualify for payment during the prospective period, and therefore may not satisfy the criteria relating to prospective determinations.
Under paragraph 6(b), if a parenting payment, youth allowance or newstart allowance recipient has incurred overpayments arising from a failure to comply with the provisions of the Act, then the Secretary may conclude the person does not satisfy the criteria relating to prospective determinations. If a person has previously failed to comply with the Act, there is an increased risk that a future failure may also occur. It is only by complying with the Act that a person retains eligibility for payment. It may be necessary for such a person to report regularly to ensure that they accurately report any earnings and that overpayments do not occur in the future.
Under paragraph 6(c), if a person has not complied with the provisions of the Act, then the Secretary may conclude the person does not satisfy the criteria relating to prospective determinations. In determining if a person is qualified for a prospective determination, likely compliance with the Act is a specific criterion which the person must meet. It is only by complying with the Act that a person retains eligibility for payment. If a person has previously failed to comply with the Act, there is an increased risk that a future failure may also occur.
Finally, the Secretary may conclude that a person does not satisfy the criteria in the Act if the person has had a change in domestic circumstances that might affect the person’s qualification for, or rate of, parenting payment, youth allowance or newstart allowance. A change in a person’s circumstances, for example, entering into a relationship, could result in parenting payment, youth allowance or newstart allowance no longer being payable to the person. This would mean the person would not satisfy the qualification criteria relating to prospective determinations.
Section 7
This section provides that a prospective determination cannot be longer than 12 weeks.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Prospective Determinations) Guidelines 2015
The Determination 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 (Prospective Determinations) Guidelines 2015 (‘the Guidelines’) provide guidance to the Secretary in deciding whether the criteria for making a prospective determination that a person is qualified for parenting payment, youth allowance, or newstart allowance are satisfied.
Human rights implications
The Guidelines engage Article 22 of the Universal Declaration of Human Rights and Article 9 of the International Covenant on Economic, Social and Cultural Rights; the right to social security. The Guidelines are compatible with these Articles as they do not vary or limit an individual’s entitlement to social security. Rather they merely provide guidelines for making a determination that a person be considered entitled for a prospective period of time.
Where such a determination is made, the individual will not have to lodge a continuation of qualification form during the period. If a determination is not made, the individual will have to lodge a fortnightly continuation of qualification form. The social security a person receives is not affected.
The criteria to be considered in making a determination are directly linked to the requirements under the Social Security Act 1991(‘the Act’) that the Secretary’s decision be based on the reasonable expectation that a person is likely to remain qualified for parenting payment, newstart allowance or youth allowance for the duration of the period. As such, the criteria in the Guidelines have no greater ambit than the power already provided for in the Act.
Conclusion
The Guidelines are compatible with human rights because they do not vary or limit the right to social security, or any other human right.
The Hon Christian Porter MP, Minister for Social Services