This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Social Security Legislation Amendment (Youth Allowance)
Date Introduced: 2 October 1997
Portfolio: Social Security
Commencement: 1 July 1998 *
* Clause 2 of the Bill specifies that the amending
Act is to commence on 1 July 1998. However, if Part
8 of the Student and Youth Assistance Act 1973
(containing the current YTA provisions) has not been repealed by
the anticipated commencement of the amending Act, then the amending
Act commences immediately after that Part is repealed.
The Youth Allowance is to replace a number of payments presently
made under the Social Security Act 1991 and the
Student and Youth Assistance Act 1973. The payments that
are to be replaced include:
- Youth Training Allowance (YTA), Newstart Allowance (NSA), and
Sickness Allowance for 16 to 20 year olds and most 15 year olds
receiving these payments;
- Austudy for students aged 16-24 inclusive, and older if the
student commences a course prior to turning 25 years, and 15 year
olds receiving Austudy;
- 'More than minimum Family Payment' for secondary students aged
16-18 not receiving Austudy.
The main aims of the government in presenting the legislation
are spelt out in the Explanatory Memorandum and include:
- Reducing complexity and duplication by providing for a single
payment, thus creating a more flexible income support system;
- Reducing the number of different rates of payment and
addressing concerns relating to the fragmentation of income support
schemes between DEETYA and DSS;
- According to the explanatory memorandum, 'The Youth Allowance
reinforces the Government's philosophy that families should support
young people until they have achieved financial
Trends in the youth labour market
Over the last two decades, massive changes have occurred in the
employment, education and life cycle experiences of young
people.However, the presumptions underlying income support
arrangements for young unemployed people and students have not kept
pace with these changes.
In the late 1970s and early 1980s most young people left school
before completing Year 12 and moved into the labour market often
into unskilled and low paying jobs. In 1966 nearly 60 per cent of
15-19 year olds were in full-time employment.
By 1996 the situation had changed dramatically, with two thirds
of teenagers being engaged in education and training and only
around 30 per cent being in the labour market.This large shift in
the activity of teenagers reflects to a significant degree the
declining opportunities for less skilled workers in the labour
market in general and especially for young people.
Recent NATSEM research on young people found that:(2)
- Between 1978 and 1996 the share of all full-time employment in
Australia held by 15-24 year olds fell from 26 per cent to 16 per
cent while their share of part-time employment grew from 23 per
cent to 29 per cent.
- The proportions of 15-24 year old men and women in full-time
employment fell from 59 per cent to 44 per cent for men and from 44
per cent to 32 per cent for women.At the same time the proportions
of part-time employment rose from 6 per cent to 18 per cent for men
and from 10 per cent to 27 per cent for women.
Young people who leave school and do not continue on to
full-time education or training are increasingly disadvantaged in
the labour market.The proposed Youth Allowance represents a desire
to maximise incentives/pressure for young people to achieve a
minimum level of education before they look for work and to ensure
that the costs of young people's exclusion from the labour market
are passed on to families rather than to public transfers.
Trends in income support for unemployed young people
Policy in relation to youth unemployment benefits from their
inception to the 1970s, generally supported a differential between
youth and adult benefits consistent with age related wage
structures and with the belief that young people would receive some
A deterioration in the labour market for young people marked by
an increase in unemployment in the 1970s, shifted attention to the
incentive effects of unemployment benefit rates.Linkages in
Government policy between age related educational outcomes and
unemployment benefits for the young unemployed were introduced in
the 1980s, aimed at increasing education retention rates.Parental
responsibility for the younger unemployed has been reinforced
through income tests.At the same time income support policy has had
to contend with the complexities and diversity of young peoples'
life experiences during a period of considerable social change eg.
independence and homelessness.
Factors influencing school completion
A major priority for government over the past two decades has
been to increase Australia's school retention rate.After a period
of substantial and sustained growth in the proportions of young
people completing school during the 1980s, recent years have seen a
Nationally, the proportion of young people remaining to Year 12
grew from approximately one-third at the beginning of the 1980s to
a peak of 77 per cent in 1992.Since then it has fallen annually,
dropping to a rate of 71 per cent in 1996 (ABS, 1996).(3)The trend
has been experienced by both males and females, though slightly
stronger amongst males.
A similar pattern of decline was recorded in the 1970s largely
involving males.Underpinned by growth in apprenticeships and by
narrowly focused senior school programmes which failed to appeal to
broader populations, teenagers (particularly males) placed more
value on the labour market than on school as a source of economic
security.A further incentive to leave school was the provision of
unemployment benefits for 16-17 year olds which provided short-term
financial incentives to leave full-time education.
Growth in school retention returned in the 1980s.Factors which
contributed to this increase included increased government
financial assistance (study allowances) for low income families and
the abolition of unemployment benefits for 16-17 year olds.In
addition, several states made important changes to the provision of
senior secondary curriculum to accommodate a broader range of
Trends in school completion have been based on long-term social
and economic influences such as changes in industry and
occupational structures, shifts in the full-time and part-time
labour markets for young people, and changing attitudes on the
importance of school.
Lamb (1996) argues that one of the effects of the large
expansion in school completion in the 1980s has been the
devaluation of the benefits of completing Year 12.Completion of
Year 12 has become widespread and available to a broadening
population of qualifiers, which tends to lessen its economic and
social value.In addition, the growth in post-school opportunities
and further education and employment has not kept pace with the
expansion of the number of school leavers, there is now a high
level of disappointment attached to school completion.
A recent study of educational disadvantage in Victoria found
that across the state, regions which experienced the biggest falls
in school completion had also experienced increases in VCE failure
in the 1990s.This suggest that academic achievement is a strong
influence on young people's plans and behaviour, reinforcing the
need for schools to find appropriate ways of maintaining high
levels of general attainment and ensuring that young people from
all backgrounds are able to reach those levels.(4)
Transition to stable employment
Most young people make the transition to continuous full-time
employment.However, there is a substantial proportion of young
people who have not had a continuous period of full-time employment
of at least a year even by the age of 24.
Casual part-time work, combinations of full-time and part-time
work, periods of job seeking, and working for multiple employers
are now the norm for a significant number of young people after
they leave school.Full-time work for a year with the one employer
now seems to be the exception rather than the rule.
Over recent years there has been a growing awareness of the
limited size of Australia's arrangements for the transition from
school to work, compared to those available in other OECD
countries.This has led to the development of national targets for
young people's education and training.These specify that by the
year 2001, ninety-five per cent of nineteen year olds should have
completed Year 12, an initial post-school qualification or be
participating in recognised education and training (Finn,
ACOSS have argued that Australia does not do well in preparing
many of its young people for work even though the doubling of
school retention rates over the last decade has resulted in us now
having the best educated cohort of school leavers in our entire
In 1996 15-24 year olds constituted over 40 per cent of
participants in VET, with the participation for 15-17 year olds
close to world's best practice levels.However, even when
differences in data definitions and OECD cross country comparisons
are taken into account, there is a gap between the current
Australian participation rates and the country with the highest
participation rate per age cohort.In particular, the participation
of 18-24 year olds would need to be expanded considerably in order
to obtain the participation rates of 'best practice'
Availability of VET places
DEETYA have argued that not all young people affected by the
proposed changes to income support would seek a training place in
the vocational education and training (VET) sector.The Department
predict that the majority of young people will seek to remain at
school or return to school and that around 25 000-27 000 may seek
to return to education and training as a result of the Youth
In the context of current negotiations over a new ANTA
agreement, State, Territory and Commonwealth Ministers for
Vocational Education and Training have recognised that the Youth
Allowance and an increased emphasis on the provision of vocational
education and training in schools will impose additional costs for
the VET sector.(8)
In the 1996-97 Budget an efficiency dividend on Commonwealth
own-purpose outlays resulted in a 5 per cent reduction of funding
provided to ANTA. In 1997-98 the Commonwealth will reduce annual
funding to the States and Territories appropriated under the
Vocational Education and Training Funding Act 1992, to
provide 'an incentive to the States and Territories to achieve
efficiency gains in vocational education and training
operations.'(9) The reduction, which takes effect from 1 January
1998 and is anticipated to be carried into subsequent years, is
estimated to be $20 million in the 1998 calendar year.
There is greater unmet demand for VET than higher education, 8.3
per cent of VET placement seekers unable to gain a place compared
with 3.1 per cent of higher education placement seekers.In addition
the Government's promotion of the availability of funding for
220,000 new apprenticeships and traineeships in the next two years
with 35,000 being made available in the next six months, has
contributed to the need for growth in the VET sector.
Historical trends in income support - 1940s to the 1970s
From the 1940s to the early 1970s, there was very little change
to the income support arrangements for unemployed youth.The 1990s
saw a long list of incremental changes to the income support
arrangements for unemployed youth and students.Set out below is a
chronology of these developments.Generally, the changes to income
support responded to the changed life experiences of young people
in the 1990s featuring increased financial and social independence
and the mixing of employment with study.However, the changes were
largely at the margin rather than achieving fundamental change to
address the issues of inequity, complexity and adequacy.
The issues and objectives that drove these changes were:
- the provision of equitable assistance between like groups based
on need rather than activity;
- the removal of disincentives for young people in low income
families to remain in or re-enter education;
- the provision of assistance that is adequate;
- the tensions between lower youth rates of assistance compared
to higher adult rates without incurring increased cost; and
- the provision of appropriate assistance during the school to
The fact that the current system still has five different income
support payments featuring thirteen different payment regimes
clearly indicates that despite the best efforts of Governments, the
current arrangements are still complex and inequitable.
Unemployment benefit introduced in 1944
With the introduction of unemployment and sickness benefits in
1944, the rates for single persons aged less than 21 years were set
at a lower rate than the full adult rate.This mirrored the
prevailing age related wages structure in Australia.
The full adult rate of unemployment benefit was also kept at a
level substantially less than minimum award wages recognising its
purpose as temporary assistance and that payment should not act as
a disincentive to look for and accept work.Lower than full adult
rates of unemployment benefit for youth also acknowledged the
belief young people would be at home and receiving support from
The long periods of high levels of economic growth and low
levels of unemployment which prevailed from 1945 to the early 1970s
placed little pressure for change on the rates of unemployment
Increased unemployment instigated changes to income support
arrangements in the 1970s
For much of the period since 1944, youth rates of unemployment
benefit have been consistently less than the full adult allowance
rate, except in the period March 1973 to November 1975, when the
rates were at the same level.The then Government accepted the
concept that a young unemployed person did not have lower living
The rate differentials were resumed with the introduction of the
intermediate rate (18 to 20 year olds) in November 1975 which was
Levels of unemployment increased dramatically from the early
1970s.In 1972 there were about 70,000 unemployed aged 15 to 25,
growing to 320,000 for the same group by 1983 and 364,400 in May
1992.In the mid-1970s, increased education participation rates did
assist in pegging levels of young unemployed, except for those who
left education very early.
In the early 1970s, the Whitlam Government formulated the policy
of bringing benefit rate levels up to parity with pension rate
levels and raising both payments progressively to the equivalent of
25% of average weekly earnings.Concerns grew that income support
rates were providing too much of a financial advantage to the
unemployed.Support for this view is generally agreed to emanate
from the correlation of increases in youth wages relative to those
of adults in the period 1972 to 1974, the significant jump in youth
unemployment rates in 1975 and the continuance of high youth
unemployment through the 1970s.
Increased youth unemployment was due to both reductions in
full-time jobs arising from changes in the labour market and the
population growth in this age grouping generated by the bulge in
Australia's demographic profile.There is some evidence the
full-time labour market for young people began to collapse before
the commencement of the recession in 1971.
In August of 1966, 59% of teenagers held full-time jobs, but by
1984 this had fallen to 32.6%.This fall corresponded with the rise
in casual/part-time work being undertaken by students.
Changes in the 1980s - income support young unemployed needed
to complement student assistance and to promote education
The 1984/85 Budget saw the commencement of explicit linkages in
Government policy between age-related educational allowances and
unemployment benefits for young unemployed aged 16 to 20.
Young Homeless Allowance was introduced in July 1986 as an
additional payment for single unemployed aged less than 18 who are
by definition homeless.
1986 and 1987 saw substantial increases in the rates of
educational allowance for secondary students and the liberalisation
of the parental income test for these allowances.
Initiatives aimed at increasing post-compulsory school retention
rates and increasing places in tertiary and further education were
introduced in the 1986/87 Budget.The initiatives reflected the
unstated desire to discourage young people from leaving home and
seeking unemployment assistance.
These initiatives featured:
- Unemployment assistance was re-structured attempting to achieve
parity with student assistance rates.
- The expansion of the work search activity test for unemployed
18 to 20 year olds to include the requirement to undertake training
to improve labour market skills.
- Educational allowance (now called AUSTUDY) moved to an
1988 saw the introduction of Job Search Allowance (JSA) for the
16 to 17 year old unemployed and confirmed the concept of
responsibility for parents to provide support for younger
unemployed with the associated parental income test similar to that
applied under AUSTUDY.
Changes in the 1990s- many incremental changes but no
Young Homeless Allowance as a separate component to JSA ceased
to be paid.These cases were paid the 'independent' and 'homeless'
A lower 'at home' rate of JSA for 18 to 20 year olds was
introduced.The higher 18 to 20 year JSA rate continued to be paid
to those who do not live at the home of their
Up to September 1990, the full adult rate was paid to all
married unemployed regardless of age or number of children. From 20
September 1990, the married rate was only paid where both of the
married couple were aged 21 years or more, or, had a dependent
child.For married recipients under 21 years without children the
rate was restricted to an age based rate.
Entitlement to special benefit was extended to single under 21
year olds with no dependents during 13 week education leavers
deferment period if in severe financial hardship and eligible
recipients were exempted from parental income test (i.e. they met
the independent requirements).
Certain 15 year olds could qualify for JSA, Sickness Allowance
or Special Benefit.The conditions to be met were:
- a full-time employment history;
- reached the minimum school leaving age, or exempted from
attending school by the education authority of the State or
Territory in which they were living;
- not at the home of either parent/guardian; and
- not receiving regular financial support from either
Also, for an independent young person, 13 weeks registration
with the CES as unemployed was interchangeable with the requirement
to be employed full-time for at least 13 weeks, since leaving the
16 to 17 year olds in substitute care (care by a person other
than the natural or adoptive parent in the carer's home) under
State or Territory law, for whom no on-going substitute care or
similar allowance is paid, were also able to be paid the
Independent rate YTA recipients could elect to be paid weekly
rather than fortnightly to assist with their budgeting.
The Rent Assistance (RA) waiting period abolished for people
aged 18 years or more and also for people under 18 years with a
dependent child and/or partner.Prior to 20 March 1992, allowance
recipients with a dependent child did not serve a RA waiting
RA was extended to people under 18 years of age, paid at the
homeless or independent rate of allowance or benefit, after an 18
week waiting period.
The full-time employment eligibility criteria for certain 15
year olds was made more flexible.Periods of CES registration could
be included to make up the required 13 weeks of full-time
Also, for an independent young person living away from home, the
period to be considered independent was reduced from 6 months to 18
Newstart Allowance (NSA) and JSA clients aged under 18
registered with the CES for 12 months or more became eligible for
the $200 Education Entry Payment.
The 18 week waiting period for RA for persons under age 18 years
receiving JSA was abolished.
Youth Training Allowance (YTA) was introduced.Young people aged
16 to 17 either unemployed or in training (and certain 15 year
olds) are eligible for YTA rather than JSA.
There are three rate categories for YTA payment:
- at home
- away from home, ie living away from home to undertake training
or job search approved by the Commonwealth Employment Service
- independent (including homeless)
These are the same as the AUSTUDY basic rates of payment.YTA
rates are indexed every January.
All YTA under 18 year olds receiving the independent and
homeless rate have a review by a social worker 3 months after
The minimum rate for YTA was abolished.The parental income test
(PIT) was applied to determine an actual rate of payment.The PIT
was not be applied to those under 18 who are eligible for the
independent, married or with dependent child rates.
This Bill makes use of two schedules to amend the Social
Security Act 1991 (the Act). Schedule 1 sets out provisions
relating to the Youth Allowance. Schedule 2 sets out provisions to
create a Youth Allowance Rate Calculator. The sections of the Bill
relating to the calculator are important as they set out criteria
according to which the rate of benefits payable is determined, eg.
defining when a person is considered 'independent'.
Schedule 1 - Youth Allowance
The proposed provisions creating the Youth Allowance are to be
inserted in a new Part 2.11 of the Act. (Item 6 of Schedule 1). The
Job Search Allowance previously occupied Part 2.11 of the Act, but
provisions relating to it were repealed in 1996. On 20 September
1996, Job Search Allowance and NSA payments were merged into one
payment, Newstart Allowance (NSA).(10)
Schedule 1 comprises ten Divisions.
Qualification for Youth Allowance
These provisions are contained in Division 1 of Schedule 1 of
Proposed s. 540 sets out the general rule for qualification for
Youth Allowance (YA). This includes:
- satisfaction of the activity test (Subdivision B); or, in some
circumstances, not being required to satisfy the activity test
- being of YA age(Subdivision D);
- satisfying requirements of a Youth Allowance Activity Agreement
(YAAA) (Subdivision E);
- satisfying residency requirements (Subdivision F).
Proposed s. 541 provides the detailed requirements of the
Activity test, which must be met for an applicant to qualify for YA
payments. The Bill contains many similar provisions to those
applying in the present activity tests for NSA and YTA payments. As
the Bill seeks to achieve the aim of creating a single payment by
combining Austudy, NSA and YTA payments, the activity test
provisions are necessarily broad. The YA test can be satisfied by a
person undertaking full-time study or a combination of activities
including study, voluntary work, part-time work and job search.
The person seeking YA payments must be:
- undertaking full-time study, or
- actively seeking and willing to undertake 'paid work' (other
than work which is unsuitable according to proposed s.541D)or
- taking reasonable steps to comply with a YAAA, or
- taking reasonable steps to comply with particular requirements
of the Secretary that can be issued to an applicant under proposed
s. 541(2). These include a requirement to
- undertake paid work; or
- participate in a 'work for the dole' program; or
- participate in training, rehabilitation or labour market
The proposed section makes provision for the particular
circumstances of remote areas where there is no locally accessible
Proposed s. 541A lists the circumstances in which there will be
found a failure to satisfy the activity test. The section is
broadly modelled on the YTA and NSA provisions. The circumstances
(in summary) are:
- failure to satisfy notified requirements of the Secretary;
- failure to comply with a Youth Allowance Activity
- failure to attend job interview;
- failure or refusal to participate in a labour market
- failure to participate in 'work for the dole' program as
- failure (of YA recipients not in full-time study) to comply
with a notice requiring application for a particular number of
advertised job vacancies (proposed s. 541C(1)); and
- failure to supply a written statement from employers confirming
that the YA recipient applied for a job vacancy (proposed s.
The section uses the term 'reasonable steps' the meaning of
which is elucidated in proposed s. 541F.
Proposed s. 541B sets about defining full-time study for the
purposes of qualification for YA. Five proposed requirements must
be met before an applicant will meet the definition of a 'full-time
Proposed s. 541C provides that the Secretary can require a YA
applicant to apply for a particular number of advertised job
vacancies within a notified time period. It mirrors existing
requirements in YTA and NSA legislation.In addition, the discussion
below of the decision of the Social Security Appeals Tribunal
(SSAT) in Re Bartlett (1994) is relevant [under heading
'Youth Allowance Activity Agreements'].
Proposed s. 541D defines unsuitable paid work for the purposes
of the activity test. This proposed section is virtually identical
to the provisions relating to NSA in s.601(2A) of the Act, except
for the removal of provisions in relation to work considered
unsuitable where it would require a person to move home to another
location considered unsuitable. In summary, the types of work that
can be held unsuitable 'in the Secretary's opinion' , are if
- applicant lacks required skills and no training is
- applicant has illness or injury likely to be aggravated by the
- work conditions are a risk to health and safety and would
contravene OH&S laws;
- work involves 'self employment';
- work would be covered by an award but employment was made
conditional upon employees agreementto join an agreement that would
reduce or abolish award rights;
- work was not covered by an award and involves under-award
- work requires excessive commuting; or
- the work requires enlistment in the Defence Forces.
Proposed s.541E contains provisions which qualify proposed
s.541A relating to failure to satisfy the activity test. It
provides a number of exemptions from the requirement to participate
in a 'work for the dole' program. In normal circumstances, under
the proposed scheme a refusal would risk of failure of the activity
Proposed sub-section 541E(3), in effect, states that the mere
fact of participation by a YA recipient in a 'work for the dole'
program, as directed by the Secretary under proposed s.541(2), does
not provide the participant with the legal status of 'employee' for
the purpose of various Commonwealth statutes. This legislation is
the Occupational Health and Safety (Commonwealth Employees) Act
1991, the Safety, Rehabilitation and Compensation Act
1988, the Superannuation Guarantee (Administration) Act
1992, and Workplace Relations Act 1996. In other
words, the benefits, protections and obligations associated with
'employee' status under that legislation will not be available to a
YA recipient in these circumstances.
Proposed s. 541F contains a definition of 'reasonable steps',
necessary for the functioning of Subdivision B of Division 1
(Qualification for Youth Allowance). These provisions are virtually
identical to those presently applicable to Newstart applicants in
the context of Newstart Activity Agreements (s.601(6) of the
The proposed section sets out that a failure to take reasonable
steps will be established with a failure to meet:
- a notice of Secretary's requirements (proposed s.541(2));
- a Youth Allowance Activity Agreement (YAAA); or
- a notice under proposed s. 541C(1).
where this failure was within the person's control, or was a
matter reasonably foreseeable by that person.
Proposed subdivision C sets out exemptions from the activity
test. Proposed s. 542 sets out situations in which the activity
test is not applicable. The provisions following it, proposed
sections 542A- 542H set out the detail of each exemption. These
- temporary incapacity (proposed s.542A);
- pre and post natal exemptions (proposed s.542D);
- remote area exemption (proposed s.542E);
- unpaid voluntary work (proposed s.542F);
- defence force reserve training camp (proposed s.542G); and
- special circumstances (proposed s.542H). These are not
specified in the Bill, in order to provide a wide discretion to the
decision maker. This replicates provisions presently found in the
Part of the Act dealing with NSA at s.603A(1).
Proposed sections 542A, 542B, 542C set out the temporary
incapacity exemption, and circumstances in which it may terminate.
Proposed s. 542B provides, along the lines of the present NSA and
YTA provisions, that an exemption of this nature may be terminated
for failure to attend an interview, complete a questionnaire or
attend a medical, psychiatric or psychological examination.
Proposed s. 542C provides that the 'maximum exemption period' is 13
weeks or less.
Ages eligible for Youth Allowance
Proposed subdivision D sets out the ages eligible for Youth
Allowance. This part of the Bill is a key area of change to the
system of income support. The effect of this subdivision, when read
in conjunction with other proposed sections, is to make the
following categories of person eligible:
- full-time students 25 years of age or less (full-time student
defined in proposed s.541B);
- young people 21 years of age or less who are looking for work
or combining part-time study with job search; and
- 15 year olds who are considered independent (eg homeless).
Proposed s. 543 defines the term 'of youth allowance age'.
Proposed s. 543A sets out the minimum age for youth allowance.
As a general rule this is 16 years unless the person is 15 years
old and 'independent' as defined in proposed s. 1067A (refer
discussion below). Note the effect of proposed sub-section 543A(2)
in most circumstances is to render unqualified for Youth Allowance
persons under the age of 18 unless:
- the person has completed the final year of secondary school or
its equivalent; or
- the person is undertaking full-time study; or
- the Secretary has determined the person exempt.
Critics of the Bill have drawn particular attention to the
Bill's aim of removing unemployment payments for 16 and 17 year
olds.(11) These are the provisions that would attempt to achieve
Proposed s. 543B sets out the maximum age for youth allowance.
It is defined as:
- 21 years, if person is not in full-time study; or
- 25 years, if person is in full-time study.
The section contains some qualifications of these basic
Youth Allowance Activity Agreements
The effect of proposed subdivision E of Division 1 is to provide
for Youth Allowance Activity Agreements (YAAA). Similar provisions
for agreements are contained in the existing YTA and NSA
legislation. For example, the Employment Services Act 1994
presently provides in s.39(1) for Case Management Activity
Agreements for NSA claimants. YTA payments under the Student
and Youth Assistance Act 1973 are similarly subject to a Youth
Training Activity Agreement.
The nature of the agreement, obligations generated, and
consequences of failure to comply within the proposed sections are
all modelled on existing provisions in that legislation.
Proposed s. 544A provides that a person claiming or receiving YA
can be required to enter into a YAAA with the Secretary.
Proposed s. 544B sets out the terms of YAAAs. Again, in order to
take account of the fact that the Youth Allowance is to be a
combination of a number of existing payments, the provisions
governing the making of proposed Activity Agreements are
necessarily broad. A range of activities can be required of a Youth
Allowance recipient including job search, vocational and other
training, paid work experience, 'work for the dole', development of
self-employment, or participation in group enterprises, or
participation in a course of education. Included in the list is the
category in proposed s. 544B(1)(e) 'measures designed to eliminate
or reduce any disadvantage the person has in the labour
An agreement is to be drafted to require the applicant to
undertake any one or more of the activities listed above, where
these have been approved by the Secretary.
Note that the proposed subsection 544B(3) requires the Secretary
to take into account the applicant's capacity to comply with the
proposed agreement and the person's needs. The factors to be taken
into account [in proposed subsection 544B(4)] include the person's
education, experience, skills, age, physical condition, the state
of the local labour market and the training opportunities
Proposed s. 544C ('failure to negotiate') will allow the
Secretary to deem that a person has failed to enter into a YAAA,
thus disqualifying that person for YA during that time period. The
section provides that the person must be notified of the
requirement to enter into a YAAA. In addition, the section sets out
a number of scenarios which will constitute unreasonable delay in
entering into the agreement, only one of which the Secretary need
be satisfied. One of these is expressed as:
the person's failure to....(iii) agree to terms of the agreement
proposed by the Secretary. [proposed sub-section
Proposed subsection 544C(2) sets out that a notice of failure to
enter a YAAA must be in writing, provide reasons and set out review
and appeal rights. In Re Bartlett (1994) the Social
Security Appeals Tribunal considered the question of an alleged
failure to negotiate a Newstart Activity Agreement. It held that a
notice supplied to the applicant in question did not constitute
proper notice as it, firstly, was not a notice specifically
directed to the applicant, but was a copy of an internal
'Administrative Breach Report' and, secondly, did not contain
necessary information relating to appeal rights.(12)
In the same case, the Social Security Appeals Tribunal
considered the question of what would constitute appropriate
contents of a Newstart Activity Agreement. The Agreement in
question had required the applicant to produce copies of job
applications for inspection. The Tribunal ruled:
I do not think that there is any place in a Newstart Activity
Agreement for a term designed solely to enable officers of the CES
or the Department of Social Security to monitor compliance by an
individual with the requirements of the [Social Security] Act...The
Act is a beneficial piece of legislation which, prima facie, ought
to be construed favourably to those whom it was intended to
benefit, including the unemployed. Its provisions in relation to
Newstart Activity Agreements detract from the operation of the
common law principle of freedom of contract, in so far as they
permit the Secretary to require the agreements be entered into, and
provide for possible adverse financial consequences in the event of
a person failing to agree to contractual terms proposed by a CES
officer. Given all those factors, I believe that the provisions in
question ought to be given a restricted interpretation, at least to
the extent they should be construed as not authorising the
inclusion of contractual terms purely for the purposes of an
allowance recipient's compliance with the Act being
Note that proposed s. 541C(2) aims to include a similar
obligation into the text of the Act. If enacted it will generate an
obligation on a YA recipient, if notified, to provide to the
Secretary 'a written statement from each employer whose job vacancy
the person applied for, that confirms that the person applied for
the job vacancy.' This obligation is tempered by proposed
subsection 541C(4) which provides that if the Secretary is
satisfied that 'special circumstances' exist in which it is not
reasonable to expect the person to give the statement' referred to
Situations where Youth allowance not payable
This situation is considered within Division 2 of Schedule 1 of
the Bill. Seven different circumstances are set out, in which YA is
not payable even if the person qualifies for it. The provisions
within this division are based closely on the YTA and NSA rules.
The circumstances are contained in proposed s. 547 which sets out
when YA is not payable, including:
- during waiting periods (subdivision C);
- during so-called 'activity test non-payment periods'
(Subdivision D), arising from activity test breaches;
- administrative exclusion (subdivision E);
- alternative support exclusion (subdivision F); and
- employment related exclusion ( Subdivision G).
Proposed s. 550 sets out provisions relating to so-called
'activity test breaches'. These provisions replicate existing YTA
and NSA rules for non-payment periods resulting from activity test
breaches where they are the third or subsequent time a person has
committed such a breach.
Whilst many of the administrative exemptions proposed are merely
a repetition of present provisions applying to NSA applicants,
proposed s.551F is an addition to the range of administrative
exemptions. Entitled 'failure to nominate parent', it is proposed
to apply to the category of YA applicants who are aged 16-17 and
not considered 'independent'. It provides that if a person in this
category fails within 28 days to nominate a parent into whose bank
account YA payments are to be made (pursuant to proposed s.559E),
that person becomes subject to an administrative exclusion. (For
discussion of proposed s.559E, refer paragraphs below). Note that
proposed s.551F contains a qualification of this general exclusion
rule, based on the power granted to the Secretary to direct that
payment be made to the applicant or another person, in proposed
Rate of Youth Allowance
These provisions are contained in Division 5 of Schedule 1 of
the Bill. This division provides for:
- calculation of the rate of YA payable using the YA Rate
- activity test reductions in rate of YA (Subdivision B);
- administrative breach reductions in rate of YA (Subdivision
Subdivisions B and C replicate provisions in the YTA and NSA
Payment of Youth Allowance
These provisions are contained in Division 6 of Schedule 1 of
the Bill. The provisions set out when payment of YA is to commence,
payment by instalments, payment in periods of less than a
fortnight, the rounding off of payments,public holidays, payment
into bank accounts etc. They are very similar or identical to
provisions throughout the Act relating to payment of a range of
pensions and benefits including NSA.
Proposed s. 559D deals with the payment of instalments to
persons 18 or over or persons under 18 defined as 'independent'.
(Proposed s.1067A contains a definition of 'independent'.) Proposed
s. 559E deals with persons under 18 not considered independent, and
provides as a general rule that YA payments are to be paid on
behalf of that person to a nominated 'parent', and not to that
person directly (as defined in s.5(1) of the Act).
This represents a marked divergence from the provisions of the Act
dealing with the payment of NSA (s.649). That section provides that
payment of a person's Newstart allowance is to be made to that
person. The proposed provision perhaps most clearly implements the
government's policy expressed in the Explanatory Memorandum
The Youth Allowance reinforces the Government's philosophy that
families should support young people until they have achieved
It appears that the Bill has been drafted so that one of the
only means for YA applicants aged less than 18 years to avoid this
system of payment, is if they are considered 'independent' under
proposed s.1067A. The principal avenue for gaining such status
would be via proposed sub-section 1067A(9) where the applicant can
show that it would be 'unreasonable' for that person to live at
home. In order to satisfy this test, three criteria must be met,
including proof of 'extreme family breakdown or similar exceptional
circumstances' or the risk of violence or sexual abuse.
Protection of Youth Allowance
These provisions are contained in Division 7 of Schedule 1 of
the Bill. Proposed s. 560 provides that a person's YA payment is to
be absolutely inalienable. In other words, it is not to be sold,
assigned, or subjected to or affected by a charge, writ of
execution, or bankruptcy, or other events. This Division closely
matches provisions that applied to the payment of NSA (previously
ss 654, 655 of the Act).
However, this protection is subject to a number of conditions
and limitations. The Division should be read in the context of
Chapter 5 of the Act, entitled 'Overpayments and Debt Recovery'.
Within proposed s. 560, these include:
- payment to the Commissioner of Taxation at the recipient's
- deductions from YA instalments in order to assist the payment
of a debt of a third party (with the recipient's consent) in the
same manner as is provided for in the case of other social security
recipients by s.1234A of the Act.
Section 1234A makes provision for the voluntary deduction of an
amount of money in order to assist the payment of a debt of a third
party social security recipient (who is a debtor under the
Social Security Act 1991, the Student and
Youth Assistance Act 1973, the Data-matching Program
(Assistance and Tax) Act 1990, the 1947 Act, or the Farm
Household Support Act 1992).
Proposed s. 560A, makes provision for the protection of a 'saved
amount' of YA payments in a recipient's bank account to be
protected from a garnishee order which has been secured from a
Court by third party creditors to recover an unpaid judgment debt.
The saved amount is calculated according to a formula provided in
sub-section (2), only protecting amounts of YA paid within the four
week period preceding the Court orderwhich have not been
withdrawn from the recipient's bank account.
Obligations of Recipients
These provisions are contained in Division 8 of Schedule 1 of
the Bill. These provisions are very similar to those presently
applying to YTA and NSA recipients. These include requirements to
supply a tax file number, or the TFN of another person, as well as
notice of particular events and changes in circumstances.
Proposed s. 561B confers power upon the Secretary to give a
'recipient notification notice' to a YA recipient(16) requiring the
person to tell the Department if a specified event or change of
circumstances occurs or if the person is aware that the above is
likely to occur. This proposed section closely mirrors the existing
s.657 relating to NSA.
Note that failure to comply with proposed s. 561B may lead to
automatic termination of YA (s.563C), or automatic reduction of the
rate of YA payment (s.564A)
Proposed s. 561C confers power upon the Secretary to give a
'recipient statement notice' to a YA recipient(17) requiring the
person to give the Department 'a statement about a matter that
might affect the payment of the allowance to the person'. This
provision closely mirrors the existing s.658 relating to NSA.
Failure to comply with proposed s. 561C may lead to automatic
Note that both proposed sections 561B, C create a criminal
offence of 'refusal or failure to comply with notice' with a
maximum penalty of 6 months imprisonment.
Continuation, variation and termination of payment
These provisions are contained in Division 9 of Schedule 1 of
the Bill. The provisions mirror very closely existing provisions
relating to the NSA found in ss 660-660L of the Act.
Proposed sections 563B and 563C provide for the Secretary to
take follow-up action after issuing a 'recipient notification
notice' under proposed s.561B, in the form of automatic termination
of payments. This is possible in the event that there is either
non-compliance with reporting obligations or indeed compliance with
reporting obligations, where either circumstance leads to:
- the person ceasing to be 'qualified' for YA (in accordance with
Division 1); or
- YA ceasing to be payable to the person. (in accordance with
Proposed s. 563D provides for automatic termination of YA where
there is a failure by a YA recipient to provide a 'recipient
statement notice' in compliance with the requirements of proposed
s.561C. Note that the proposed section would provide for the
Secretary to disregard the failure in the event of 'special
circumstances' (proposed s.563D(2)). There has been some
consideration of the meaning of this term by the Tribunal in this
and other contexts arising under the Act.xviii
These proposed provisions are contained in Division 10 of
Schedule 1 of the Bill. The provisions mirror very closely existing
provisions relating to the NSA found in s.660LA to s.660LF of the
Act. They allow for the payment of special bereavement payments to
a YA recipient upon the death of their partner for a period of 14
weeks. Proposed s. 567 sets out the criteria for qualification for
payment. These include the requirements that:
- the claimant is a long term social security recipient receiving
- immediately before the death of the partner, the partner was
receiving a social security pension, or a service pension or was a
long term social security recipient.
Schedule 2 - The Youth Allowance Rate Calculator
The Youth Allowance Rate Calculator is contained within Schedule
2 of the Bill. It is to be used to determine the rate of YA payable
to an applicant, according to criteria such as whether the
applicant is of 'independent' status.
The proposed provisions setting out the Calculator are to be
inserted a new Part 3.5 into Chapter 3 of the Act. The effect is to
replace some provisions previously applying to NSA within the
'Benefit Rate Calculator A' which resides within s.1067 of the
When a person is regarded as independent
Proposed new s. 1067A sets out criteria for determination of
whether an applicant fits the definition of 'independent'. This has
crucial implications for the rate of YA payable, the payment of
rent assistance, and whether the family assets test, parental
income test and the family actual means test are applied.
The categories of persons regarded as 'independent' are:
- a member of a 'Youth Allowance couple';
- person with dependent child;
- person aged 25 or more;
- if (both) parents cannot exercise responsibilities;
- person in State care;
- where unreasonable to live at home;
- self supporting applicant; and
- specially disadvantaged applicant.
The categories 'unreasonable to live at home' and 'people who
are disadvantaged' merit particular attention. Proposed sub-section
1067A(9) sets out the criteria for determining if a person gains
'independent' status where it is considered unreasonable for that
person to live at home because of the risk of violence or sexual
abuse and failure to receive 'continuous' financial or
non-financial support. This sub-section would appear to have
particular importance for some YA applicants aged less than 18, as
the proposed sub-section 1067A(12) ('people who are disadvantaged')
only applies to persons aged 18 years or more.
Presently the Act contains definitions of 'homeless person' and
'independent young person', in subsection 5(1). It is relevant to
note that the test for determining 'where [it is] unreasonable to
live at home' contained in proposed s.1067A(9) is proposed to be
inserted into the Act, as opposed to Regulations. This appears to
be the first time that this approach has been adopted for this
particular test, which is presently part of the Austudy scheme in
the form of Regulation 74 of the Austudy Regulations under
the Student and Youth Assistance Act 1973. This drafting
decision may, in some circumstances, have the effect of reducing
the discretion available to departmental staff in administering the
scheme to take account of particular client circumstances.
Accommodated Independent Person
Proposed s.1067B defines the category of persons considered
'accommodated independent person', for use within the YA Rate
Calculator. The effect is to create an additional category of
independent persons, who will receive a lower rate of fortnightly
payment than persons classified as an 'independent person'. These
persons will be:
- paid the lower 'at home' maximum basic YA rate (refer Module
- will not be paid rent assistance.
Youth Allowance Couple
Proposed s.1067C defines the category 'member of a youth
allowance couple' for the purposes of determining the whether the
independent rate of payment of youth allowance is payable using the
Similarly to other provisions in the Act, this proposed
amendment does not make provision for same sex couples. The
proposed provisions require that 'the person has a relationship
with a person of the opposite sex'.
In Re H (1989), Re Brown and Commissioner for
Superannuation (1995) and Secretary DSS v SRA (1993),
issues surrounding social security eligibility which turned on
definitions of sex and relationships received lengthy
Proposed s. 1067C sets out when a person is a member of a 'Youth
allowance couple'. If a person fits this category he or she fits
the criteria for independent rate of payment (proposed s.
Living away from home / at home
Proposed s. 1067D defines the category of persons 'required to
live away from home', for use within the Rate Calculator. Persons
falling within this category, although not being considered
independent, will be paid the higher 'away from home' maximum basic
rate and may be eligible for Rent Assistance.
Proposed s. 1067E defines the category of persons 'living at
home' for the purpose of use within the Rate Calculator. These are
persons not considered 'independent' or 'required to live away from
home'. These persons are at least 21 years old, not a member of a
couple, and are engaged in full-time study, and in addition have
been in receipt of any one of a number of allowances and benefits
for at least 26 of the 39 preceding weeks, prior to becoming a
Rate Calculator Modules
Proposed s. 1067G, a lengthy section, contains the actual text
of the Youth Allowance Rate Calculator. It is divided into Modules
A to L.According to the Explanatory Memorandum:
It follows a similar course to other overall rate calculation
process Method statements in the Social Security Act, including
establishing the maximum basic rate, to which is added
pharmaceutical allowance and rent assistance to arrive at the
maximum payment rate.(20)
Module A contains details of the proposed overall rate
calculation process. It states clearly that the rate of allowance
is a fortnightly rate.
Module B contains proposed details for working out the maximum
basic rate for a person, depending on their circumstances.
Module C provides criteria for determining whether a YA
recipient is eligible for pharmaceutical allowance. In order to
qualify it is essential that the YA recipient has a 'temporary
incapacity exemption' under proposed s. 542A.
Module D provides criteria for determining whether a YA
recipient is eligible for Rent Assistance. Broadly, rent assistance
will be available to YA recipients who are married or have a
dependent child, are independent and living away from their
parental home, and dependent recipients who have an employment or
study related reason for living away from home. Further, the person
must be renting privately and paying rent above a specified minimum
threshold, which is set out at Table DA in the Calculator.
For the first time, Commonwealth rent assistance will be
available to some students. Previously only State and Territory
administered schemes were available to Austudy recipients.
According to the Department's document entitled 'Youth Allowance:
Questions and Answers':
Rent assistance has been extended to students...to remove one of
the key differences in income support arrangements between students
and other young people.(21)
Module E contains provisions related to the YA assets test.
Module F contains the parental income test provisions. This
module is further divided into six 'Submodules'. It contains points
for working out the effect (if any) of the parental income test on
a person's rate of payment for a particular payment period. The
parental income test applies to persons not considered
'independent' (ie falling outside the definition contained within
proposed s. 1067A. (refer to Point 1067G-F2).
Module G contains the 'family actual means test' which is part
of the overall parental means test, which when seen together,
examines parental income, assets and actual means.
The Actual Means Test (AMT) has applied to students under the
Austudy scheme since 1996, and the Bill seeks to adapt and
incorporate it into the Youth Allowance scheme. The 'working out'
of the actual means of a person's family is to be determined by
reference to Regulations. According to the Explanatory Memorandum,
these provisions are to be replaced by the inclusion of the
substantive provisions within the Act, 'in due course'.(22) However
it is unclear from the Explanatory Memorandum as well as the
proposed amendments to the Act, in particular Points 1067G-G2 and
1067G-G3 and 1067G-G4, exactly which Regulations are being referred
to by the phrase employed, "the regulations". It would appear
curious if an attempt were to be made to rely upon the Austudy
Regulations, made under the Student and Youth Assistance
Act 1973, in order to carry out the legal effect of the
Social Security Act 1991. Presumably, prior to the
foreshadowed inclusion of the AMT provisions into the Social
Security Act, it will be necessary to replicate (with
necessary alterations) the AMT provisions of the Austudy
Regulations, as Regulations under the Social Security Act
1991. According to Sutherland and Anforth (1996), to date, no
regulations have been made using the power provided by s.1364 of
The operation of the AMT, provided for by Division 1B of Part 1
of the Austudy Regulations, has been the subject of considerable
debate and criticism since its introduction, and it is understood
that after a Departmental review, the Austudy Regulations under the
Student and Youth Assistance Act 1973 are to be
In the main, recent criticism has drawn attention to the
complexity of the AMT form and tests and to difficulties for DEETYA
clients, especially those of non-English speaking backgrounds, in
understanding and complying with the application requirements. One
MP argued in a submission to DEETYA that further difficulties could
arise if the same test were applied to test the 'actual means' of
the parents of the young unemployed:
After seeing the difficulty relatively intelligent people have
had understanding the forms and the rationale behind the AMT
itself, I question whether the test, in its current form can be
successfully applied to those seeking unemployment benefits as is
proposed in the Common Youth Allowance.(25)
Another critic, Professor Tim Carney of the National Children's
Youth Law Centre stated:
The poor drafting of the AMT has given rise to a host of
anomalies which would be laughable were it not for the fact that it
is impacting so adversely on hard pressed families.(26)
Module H contains the 'income test', otherwise known as the
'personal income test' which will apply to all YA recipients. The
points contained within this module provide a means for determining
the effect, if any, of a person's income (and their partner's
income, if applicable) on their YA payment rate.
Proposed new Module Jprovides for the creation of a 'student
income bank'. This initiative is available to full-time students
(as defined in proposed s. 541B) and is designed to accommodate the
fact that most full-time students who undertake paid work tend to
do so during holiday periods. Students can accumulate any unused
part of their fortnightly 'income free area' of $230 per fortnight
up to a maximum of $6000. The aim is to enable full-time students
to undertake some holiday employment without risking major
reductions in their income support.
Module K provides for an additional payment of 'remote area
allowance' to YA recipients living in a remote area.
Newstart training supplement
This additional payment is presently available to certain NSA
recipients under s.644 of the Act. It is unclear whether the Bill
or consequential amendments will affect payment of this
Education and Employment Entry Payments
These payments are presently made available to NSA and YTA
recipients by Parts 2.13 and 2.13A of the Act. The entry payments
are to be restricted or abolished by the Social Security Amendment
(Entry Payments) Bill 1997, which aims to abolish the employment
entry payment and to restrict the availability of the education
Concession and Health Care Cards
The Health Insurance Act 1973 provides for a scheme of
assistance with the cost of health care to 'disadvantaged persons',
under the Disadvantaged Persons Health Scheme. Sections 5D and 5E
of the Health Insurance Act provides for NSA and YTA
recipients to be eligible upon meeting certain residency and
dependents tests to be eligible to hold a Health Care Card
At present NSA and YTA recipients are automatically entitled to
a HCC. However, there appears to be no provision within the Bill to
extend this automatic entitlement to Austudy recipients who will be
brought within the Youth Allowance scheme. It appears that this
category of YA recipients will need to apply for a HCC and satisfy
the income tests in order to obtain a card.
Note that the Explanatory Memorandum suggests that a number of
matters will be dealt with by forthcoming consequential amendments
prior to the anticipated commencement of the Act in July 1998. It
A further forthcoming social security Bill will provide for the
remaining amendments that are consequential on the primary
amendments, including to other legislation. (29)
- Explanatory Memorandum, p.2.
- National Centre for Social and Economic Modelling (NATSEM)
Income Distribution Report, Australia's Youth, issue 6 June
- Australian Bureau of Statistics (1996), Schools, Australia
1995.Catalogue No. 4221.0. Canberra: Australian Bureau of
- Evidence on poorer higher education transition rates of
children from lower socio-economic backgrounds is provided in the
report by Williams, Long, Carpenter and Hayden (1993b) on higher
education entry, and a report by Lamb (1994) on the benefits of
completing Year 12 in Australia.
- The Future of Work and Young People's Pathways to
Adulthood ACOSS Paper Series Paper No. 76 Commission for the
Future of Work Issues Paper No. 3.
- Senate Employment, Education and Training Legislation
Committee, Vocational Education and Training Funding Amendment
Bill 199; September 1997.
- Joint Statement from State, Territory and Commonwealth
Ministers for Vocational Education and Training, Australian
National Training Authority Agreement25 September 1997
- Vocational Education and Training Funding Amendment Bill 1997,
Second Reading Speech
- CCH Australia, (1997), Australian Social Security
Guide, Vol 1, Par 35 050.
- Australian Youth Policy and Action Coalition, (1997), Broad
Alliance Opposes Youth Allowance Proposal, Media Release, 17
- Re Bartlett and SDSS (1994) 19 AAR 398; 80 SSR 1169,
cited in Sutherland and Anforth (1996), Annotations to the
Social Security Act 1991, Third Edition, Federation Press, at
- Re Bartlett and SDSS (1994) 19 AAR 398; 80 SSR 1169,
cited in Sutherland and Anforth (1996), Annotations to the
Social Security Act 1991, Third Edition, Federation Press, at
- Explanatory Memorandum, p.2.
- In order to comply with s.1359 of the Social Security
Act and s.218 of the Income Tax Assessment Act.
- Including where payment is being made to the recipient's parent
or another person acting on his/her behalf.
- Including where payment is being made to the recipient's parent
or another person acting on his/her behalf.
- In relation to "special circumstances" affecting a decision of
automatic termination of a Newstart payment see Re Eisen and
SDSS (1993) 30 ALD 750; 76 SSR 1102. For discussion of case
law relating to meaning of "special circumstances" in other
contexts within the Act refer Sutherland and Anforth, op.cit.,
- Re H and SDSS (1989) 17 ALD 639, Re Brown and
Commissioner for Superannuation (1995), unreported AAT,
No.10186, 15 May 1995; SDSS v SRA (1993) 43 FCR 299; 118
- Explanatory Memorandum, p.69.
- Department of Social Security (1997), Youth Allowance :
Questions and Answers, October, p.7.
- Explanatory Memorandum, p.80.
- Sutherland and Anforth, op.cit., p.779. A search of a
computerised index of Commonwealth regulations failed to reveal any
regulations presently in force that had been made under the
Social Security Act 1991: refer to Internet URL
- Senator Vanstone (1997) 'Vanstone Intervenes to Streamline
Austudy Actual Means Test', Media Release, 20 February 1997. See
also Austudy Regulations in force under the Student
and Youth Assistance Act 1973, comprising Statutory Rules 1990
No.443 as amended.
- Peter Andren MP, submission to DEETYA Austudy Actual Means Test
Review, July 1997, at p.2.
- ABC, 7.30 Report, 4 February 1997.
- Social Security Amendment (Entry Payments) Bill 1997,
Bills Digest No.44, 1997 8.
- CCHAustralia, Australian Social Security Guide, Vol.1,
Par 76-080, 76 100
- Explanatory Memorandum, p.61.
James Prest, Peter Yeend and Susan McDonald
29 October 1997
Bills Digest Service
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