EXPLANATORY STATEMENT
Social Security (Satisfaction of the Activity Test – Classes of Persons) (DEEWR and FaHCSIA) Specification 2009 (No. 1) – Instrument of Revocation 2015
Authority
The Social Security (Satisfaction of the Activity Test – Classes of Persons) (DEEWR and FaHCSIA) Specification 2009 (No. 1) – Instrument of Revocation 2015 (the Revocation Instrument) is made by the Secretary of the Department of Employment (the Secretary) under subsections 541(1AB), 601(4A) and 731A(11A) of the Social Security Act 1991 (the Act).
The purpose of the Revocation Instrument is to revoke the Social Security (Satisfaction of the Activity Test – Classes of Persons) (DEEWR) Specification (No. 1) 2009 and the Social Security (Satisfaction of the Activity Test – Classes of Persons) (FaHCSIA) Specification (No. 1) 2009 (the Current Instruments).
Explanation
Certain provisions of the Act require recipients of Youth Allowance, Newstart Allowance and Special Benefit Allowance to satisfy the activity test to remain qualified for their social security payment. In general terms, the activity test requires the recipient to be “actively seeking” and willing to undertake suitable paid work in Australia. However, subsections 541(1AA), 601(4) and 731A(11) of the Act provide that a recipient is taken to satisfy the activity test if he or she is complying with the terms of their Employment Pathway Plan (EPP) and the person is in a class of persons specified in an instrument made under subsections 541(1AB), 601(4A) or 731A(11B) as the case may be. An EPP is an individually tailored plan that identifies the job seeker's vocational goals, and records the activities the job seeker will undertake to satisfy their activity requirements and which may help them reach these goals. EPPs can only contain activity requirements which are reasonable for the job seeker, as set out in the Social Security (Employment Pathway Plan Requirements) (DEEWR) Determination 2009 (No. 1).
Previously, the former Department of Education, Employment and Workplace Relations (DEEWR) was responsible for all participation payments except for Special Benefit, which was the responsibility of the former Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA). Accordingly there was the DEEWR instrument that related to Youth Allowance and Newstart Allowance, and the FaHCSIA instrument that related to Special Benefit Allowance. Under the current Administrative Arrangement Orders, the Department of Employment is responsible for participation requirements for all payment types, including Special Benefit. Accordingly, the Employment Secretary is revoking both of the Current Instruments.
The Current Instruments specify the classes of persons, for the purposes of subsections s541(1AA), 601(4) and 731A(11), who are not required to be actively seeking and willing to undertake work if those requirements are not specifically included within their EPP. The classes of persons are job seekers in Stream 4 (as specified in the Employment Services Deed 2009-2012), job seekers with less than 15 hours work capacity due to physical or mental impairment and Principal Carer Parents. The Current Instruments are redundant, as subsections 541(1AA)(b)(ii), 601(4)(b)(ii), and paragraph 731A(11)(b)(ii) of the Act allow the Secretary to determine on a case by case basis that any job seeker, even if not in a class of persons specified in the Current Instruments, can fully meet their requirements purely by complying with the terms of their EPP (regardless of whether or not it includes a requirement to undertake job search activities). It has been longstanding policy under successive governments that such case by case determinations are made by delegates of the Secretary in accordance with legislative and operational guidelines, which have been and are currently issued by the appropriate policy department.
The Current Instruments only apply to the legislative requirement for job seekers to undertake job search in subsections 541(1)(b), 601(1), and 731A(1) and they do not prevent job seekers from being required to undertake job search activities where that is included in their EPP. As a result, the Current Instruments do not in practice affect whether or not any job seeker can be required to undertake job search to satisfy the activity test.
The revocation of the Current Instruments will not impact on current requirements for job seekers or have any impact on what job seekers may be required to undertake to meet the activity test in the future.
Explanation of the provisions
Section 1 – Name of instrument
Section 1 provides that the name of the instrument is the Social Security (Satisfaction of the Activity Test – Classes of Persons) (DEEWR and FaHCSIA) Specification 2009 (No. 1) – Instrument of Revocation 2015.
Section 2 – Commencement information
Section 2 provides that the instrument will commence the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 – Revocation
Section 3 provides that the Current Instruments, the Social Security (Satisfaction of the Activity Test – Classes of Persons) (DEEWR) Specification (No. 1) 2009 and the Social Security (Satisfaction of the Activity Test – Classes of Persons) (FaHCSIA) Specification (No. 1) 2009 are revoked.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary such instrument.
Section 4 – Expiry
Section 4 provides that the instrument expires on the day after it commences, as if it had been repealed by another instrument.
Consultation
The Department of Social Services has been consulted regarding the instrument and has confirmed that the revocation of the instrument will not have an impact on their portfolio. No further consultation was undertaken as the instrument will not impact current policy or procedures and no job seekers or businesses will be affected by the change. In this regard, the instrument is of a minor or machinery nature and does not alter existing arrangements.
Regulatory Impact Statement
This revocation does not require a Regulatory Impact Statement (RIS) nor a Business Cost Calculator Figure. The revocation does not affect the financial or other interests of business or the not-for-profit sector in any direct or substantive way.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Satisfaction of the Activity Test – Classes of Persons) (DEEWR and FaHCSIA) Specification 2009 (No. 1) – Instrument of Revocation 2015 (the Revocation Instrument)
This Revocation 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 Revocation Instrument under the Social Security (Administration) Act 1999 (the Act)
The purpose of the Revocation Instrument is to revoke the Social Security (Satisfaction of the Activity Test – Classes of Persons) (DEEWR) Specification (No. 1) 2009 and the Social Security (Satisfaction of the Activity Test – Classes of Persons) (FaHCSIA) Specification (No. 1) 2009 (the Current Instruments).
Recipients of Youth Allowance, Newstart Allowance and Special Benefit Allowance are required under the Act to satisfy the activity test to remain qualified for their social security payment. The Current Instruments specify the classes of persons who are taken to satisfy the activity test if he or she is complying with the terms of their Employment Pathway Plan (EPP) and accordingly the recipients are not required to be actively seeking and willing to undertake work if those requirements are not specifically included within their EPP. An EPP is an individually tailored plan that identifies the job seeker's vocational goals, and records the activities the job seeker will undertake to satisfy their activity requirements and which may help them reach these goals. EPPs can only contain activity requirements which are reasonable for the job seeker, as set out in the Social Security (Employment Pathway Plan Requirements) (DEEWR) Determination 2009 (No. 1).
The Current Instruments were originally intended to allow recipients who required significant assistance before they were capable of entering the workforce, such as persons with physical, intellectual, psychological or psychiatric impairments which prevent the person from working more than 15 hours a week without support, to be taken to satisfy the activity test by complying with their EPPs.
The Current Instruments only apply to the legislative requirement for job seekers to undertake job search in subsections 541(1)(b), 601(1), and 731A(1) and do not prevent job seekers from being required to undertake job search activities where that is included in their EPP.
However, subsections 541(1AA)(b)(ii), 601(4)(b)(ii) and paragraph 731A(11)(b)(ii) of the Act allow the Secretary to determine on a case by case basis that any recipient, even if not in a class of persons specified in the Current Instruments, can fully meet their requirements purely by complying with the terms of their EPP. As a result, the Current Instruments do not in practice affect whether or not any job seeker can be required to undertake job search to satisfy the activity test and revocation will not impact on current requirements for job seekers or have any impact on what job seekers may be required to undertake to meet the activity test in the future. Accordingly, the Current Instruments are redundant and the Revocation Instrument revokes the Current Instruments.
Human rights implications
The Revocation Instrument engages the following human rights:
- the right to social security – article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);
- the right to adequate standard of living – article 11 of ICESCR; and
- the right to work – article 6 of ICESCR, article 11 of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and article 27 of the Convention on the Rights of Persons with Disabilities (CRPD).
Right to social security and the right to adequate standard of living
Article 9 of the ICESCR recognises the right of everyone 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 11 of the ICESCR recognises the right of everyone to an adequate standard of living including adequate food, water and housing, and to the continuous improvement of living conditions.
The Committee on Economic, Social and Cultural Rights has stated that limitations on this right must be proportional and the least restrictive alternative where several types of limitations are available, and even where such limitations are permitted, they should be of limited duration and subject to review.
The measures in the Revocation Instrument engage these rights as failing to meet activity requirements has the potential to reduce job seeker’s social security payments.
The Revocation Instrument revokes the Current Instruments as they are redundant as the Act allows the Secretary to determine on a case by case basis that any recipient can fully meet their activity requirements purely by complying with the terms of their EPP. Recipients who may require significant assistance before being capable of entering the workforce will thereby not be disadvantaged as the Secretary can still determine that the recipient is taken to satisfy the activity test. Consequently, the Revocation Instrument will not affect or otherwise limit a recipient’s rights to social security or to an adequate standard of living.
The right to work
Article 6 of ICESCR recognises the right of everyone 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. Article 27 of the CRPD recognises the right of persons with disabilities to work, on an equal basis with others.
The measures in the Revocation Instrument engage these rights as it relates to when job seekers may be required to look for work as an activity requirement, including whether persons with physical, intellectual, psychological or psychiatric impairments may be required to look for work.
The Current Instruments only apply to the legislative requirement for recipients to undertake job search activities in subsections 541(1)(b), 601(1), and 731A(1) of the Act and does not prevent recipients from being required to undertake job search activities where that is included in their EPP. The Revocation Instrument also will not prevent recipients from being required to undertake job search activities where that is included in their EPP and thereby promotes the right to work by encouraging job search activities.
Conclusion
The Revocation Instrument is compatible with human rights because it does not limit the right to social security nor an adequate standard of living and it promotes the right to work.