Bills Digest No. 46 2002-03
Family and Community Services Legislation Amendment
(Special Benefit Activity Test) Bill 2002
WARNING:
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
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Family and Community Services
Legislation Amendment (Special Benefit Activity Test) Bill
2002
Date Introduced: 26 September 2002
House: House of Representatives
Portfolio: Family and Community Services
Commencement: There are various
commencements dates for the three Schedules in the Bill and these
dates are set out in the Table in Clause
2 of the Bill. The largest Schedule of the Bill
(Schedule 1) commences on 1 January 2003.
Purpose
To place into the
Social Security Act 1991 (SSA) the activity test and
mutual obligation requirements, that currently apply for unemployed
jobseekers on newstart allowance (NSA) and youth allowance (YA), so
that they will also apply for specified SpB recipients. The SpB
recipients who are to be exposed to the activity testing and mutual
obligation requirements are those who are holders of a TPV issued
for temporary protection, humanitarian or safe haven purposes.
SpB is a unique payment provided under the SSA,
as, unlike all other income support payments, much of the
conditions for qualification and payment are prescribed in
guidelines approved by the Secretary under the SSA. This is unlike
all other income support payments provided under the SSA, where the
qualification requirements and much of the conditions for payment
are set out in the SSA. These qualification requirements set out in
the legislation are commonly age, residence, income and asset
limits. Individual payments also have other payment specific
legislative requirements. Some examples are being a full-time
student, unemployed, incapacitated for work, a full-time carer, or
a sole parent etc.
SpB was first introduced along with unemployment
benefit and sickness benefit under the Unemployment and
Sickness Benefits Act 1944 and was aimed at persons who could
not qualify for those benefits and were also ineligible for age,
invalid, widow's or service pensions. It was to be granted 'at
the discretion of the Director-General', to a person 'by
reason of physical or mental or domestic circumstance, or any other
reason, is who unable to earn a sufficient
livelihood'.(1) On the surface this appears to
provide a very wide range of situations that could attract SpB, but
in its origins it was agreed that the States would still provide
for the unemployable and indigent persons.
This comparatively discretionary nature of the
provision of SpB was deliberate. It was aimed at allowing
flexibility of provision, recognising the myriad of different and
often quite unique circumstances for individuals and small groups
in the community, who do not otherwise qualify for one of the
mainstream payments under the SSA, but are suffering hardship and
in need.
Since 1944, SpB has been provided in specified
types of situations as set out in guidelines prescribed by the
Secretary under the SSA. Sub-section 729(1) of the SSA empowers the
Secretary to prescribe in guidelines under what circumstances SpB
can be paid.(2) SpB does not have other qualification
requirements like age, residence, income and asset limits set out
in legislation. Rather sub-section 729(1) gives broad powers to the
Secretary to prescribe requirements seen as appropriate.
The different circumstances in which it is now
seen as appropriate to provide SpB have evolved over time. Broadly,
SpB has been provided where a person, or class of persons, has been
seen as:
-
- in need of support
-
- not able to access any other payment
-
- not being able to provide for themselves
-
- not being reasonably able to obtain support from any other
source, and
-
- being likely to be in significant hardship without
support.
Some of the more common prescribed categories of
SpB are set out below. These categories have evolved over time,
responding to identified needs of persons in need of support but
who cannot otherwise qualify for other payments under the SSA.
-
- Claimant in hardship. SpB can be considered if they are:
-
- awaiting the determination of a pension/allowance claim where
the grant may be delayed
-
- waiting for the first payment delivery day, or
-
- A newly arrived resident subject to the two year newly arrived
resident waiting period and some unforeseen event has resulted in
them being unable to support themselves.
-
- A victim of a natural disaster
-
- An expectant mother unable to qualify for any other payment and
in hardship
-
- The partner of a person who:
-
- is disqualified from NSA or YA owing to involvement in
industrial action
-
- is imprisoned, on remand or confined in a psychiatric
institution
-
- chooses not to be employed, or
-
- has voluntarily adopted a lifestyle which makes it difficult or
impossible for them to provide support.
-
- A repatriated distressed Australian
-
- A sponsored resident unable to be supported by their
sponsor
-
- A person not residentially qualified for another payment, eg.
an incapacitated person who was disabled prior to arriving in
Australia and is yet to serve the 10 year qualifying period for
Disability Support Pension
-
- A carer providing short-term care unable to obtain any other
means of support
-
- Full-time students aged less than 18 who cannot qualify for any
other payment
-
- Full-time student aged under 16 who is also homeless and cannot
qualify for any other payment, and
-
- A dependent child who is a legal Australian resident, but whose
parent/guardian is a non-resident.
Under guidelines prescribed by the Secretary, set out below are
the holders of TPVs who may be paid SpB, even though they are not
Australian residents. These guidelines would be agreed between the
Secretary under the SSA and the Department of Immigration and
Ethnic and Indigenous Affairs:
-
- Subclass 820 - spouse
-
- Subclass 826 - interdependent
-
- Subclass 309 - offshore spouse
-
- Subclass 310 - offshore interdependent
-
- Subclass 785 - temporary protection
-
- Subclass 786 - humanitarian concerns
-
- Subclass 447 - secondary movement (Offshore Entry), and
-
- Subclass 451 - secondary movement Relocation
For persons provided with one of these TPVs, SpB
and access to family assistance is provided, but they are not
entitled to any of the range of special settlement services that
are provided for people granted permanent residence under the
humanitarian migration program, or persons who 'legally' enter
Australia and are subsequently granted permanent protection visas.
Under migration law any non-citizen in Australia without a visa is
required to be detained until they are either granted a visa (which
may be a protection visa), or removed from the country. All persons
subsequently granted a TPV are held in detention until granted a
TPV.
The government introduced a new class of visa
called Temporary Protection Visa (TPV) with the passage of the
Migration Legislation Amendment (Temporary Safe Haven Visas)
Act 1999. Bills Digest No. 162 1998-99 refers.(3)
The original Act was mainly aimed at Kosovar refugees but use of
the new visa classes (that is TPVs) was later expanded for those
persons who were unauthorised arrivals and who were assessed as
meeting refugee classification requirements. The new visa classes
were centred on persons who had arrived as an unauthorised arrival
and were found to be a refugee. The TPV is only provided for three
years, in the first instance. This contrasts with refugees who were
authorised arrivals who are provided with immediate access to a
permanent protection visa.
This change was announced by the Minister for Immigration and
Multicultural and Indigenous Affairs, the Hon. Mr Phillip Ruddock,
MP in a Media Release dated 13 October 1999 titled Ruddock
Announces Tough New Initiatives.(4) Department of
Immigration and Multicultural and Indigenous Affairs Fact Sheet No.
64 - Temporary Protection Visas provides a good summary of
the visa changes.(5)
Further changes to the issuing of TPVs came into
force from 27 September 2001. Briefly, unauthorised arrivals
assessed as meeting refugee classification, who, since leaving
their home country, have resided for at least seven days in a
country where they could have sought and obtained effective
protection, will not be able to access a permanent protection visa.
They will continue to have access to a three year TPV. Department
of Immigration and Multicultural and Indigenous Affairs Fact Sheet
No. 64 - Temporary Protection Visas provides a good
summary of the visa changes.(6)
2000-01 Budget - original
announcement of the Unauthorised Arrivals in Australia Package:
reducing the incentives for unauthorised
arrivals
In the 2000-01 Budget, the government announced
several measures as a part of the Unauthorised Arrivals in
Australia Package, aimed at reducing the incentives for
unauthorised arrivals.(7) One of the measures announced
was that recipients of SpB, who were TPV holders, would be required
to meet the activity test and other mutual obligation requirements
that apply to other allowance recipients of work-force
age.(8)
The stated aims of the measure were to:
-
- Encourage social and economic participation by treating TPV
holders of work-force age in a similar way to Australian nationals
of work-force age by requiring them to be self-reliant and to
fulfil a mutual obligation to the Australian community, and
-
- To reinforce community support for the humanitarian immigration
program and the treatment of these refugees.(9)
The Budget papers indicated that the original
package was scheduled to commence from 1 January
2001.(10)
For the special benefit activity testing part of
the Unauthorised Arrivals in Australia Package, the Budget
papers projected costs of $3.982m in 2000-01, $0.942m in 2001-02,
followed by savings of $1.900m in 2002-03 and $2.036m in
2003-04.(11)
Notwithstanding the announcement of the
Unauthorised Arrivals in Australia Package in the 2000-01
Budget, no legislation to amend the SSA was presented to the
Parliament before the presentation of the 2001-02 Budget. The
2001-02 Budget saw the re-announcement of the SpB measures in the
package.(12) The re-scheduled start date was 1 January
2002.(13)
The revised package as presented in the 2001-02
Budget had projected costs of $2.128m in 2001-02, $4.581m in
2002-03, $4.228m in 2003-04 and $3.797m in
2004-05.(14)
In an answer to a question by Senator Andrew
Bartlett taken on notice by the Department of Immigration and
Multicultural and Indigenous Affairs (DIMIA) it was detailed DIMIA
did not possess statistics on the number of TPV holders engaged in
employment. DIMIA also detailed that there had been 8 441 TPVs
issued to 14 June 2002 and of these Centrelink data shows 4 741
principle applicants were receiving SpB. The remaining 3 700 are
either dependants of another applicant, have gained employment or
are supporting themselves through other means.(15)
Presentation of legislation in
September 2002 for a May 2001-02 Budget measure - why the
delay?
This Bill proposes that the SpB measures, that
were re-announced in the 2001-02 Budget, are to commence from 1
January 2003. One question that is not addressed in either the
second reading speech or in the Explanatory Memorandum attached to
the Bill, is the long delay in presenting the Bill. The probable
answer to this is the detailed and complex arrangements necessary
for the involvement of non-legal resident TPV holders in all of the
activities and programs they could be potentially exposed to under
activity testing and mutual obligation. This ranges across looking
for work, attending a training program, undertaking work search
activities prescribed by a contracted Job Network employment
placement provider, undertaking paid work experience, participating
in a Work for the Dole program, undertaking part or full-time work
etc.
Whilst many of these activities present no
problems for legal residents in receipt of NSA or YA, the
involvement of TPV holders, who are not legal residents, would have
required some investigation and examination to ensure there were no
legal problems and issues. Many of these activities are directly or
indirectly government funded and/or authorised and the engagement
on non-legal residents would have been problematic.
Clearly, it is the government's intention to
expose this group of non-resident TPV holders to as full a range of
activity testing and mutual obligation requirements as possible.
This potentially means a very wide range of activities, especially
in terms of activities and actions that a Job Network employment
placement provider may ask a jobseeker to undertake.
Schedule 1 of the Bill runs to
some 41 Items and appears to be an extensive piece of legislation
for what is likely to be a small group affected. The length of
Schedule 1 is explained by the fact that many of
the items mirror the provisions already contained within the SSA
used for the application of jobseeker activity testing, mutual
obligation requirements, breaches and penalties for unemployed
jobseekers on NSA and YA.
It is interesting to note that for the first
time, a significant amount of detail about the payment conditions
attached to the provision of SpB is being placed into the SSA. This
is unprecedented. It is probable that the reason for this is, is to
ensure the same rigour that applies under these arrangements for
NSA and YA recipients, will apply to the SpB recipients.
Whenever adverse decisions can be made in
respect of the provision of income support payments, it is far more
secure and less open to challenge or variance by courts/tribunals,
if the decision is supported by specific legislation, rather than
in guidelines attached to legislation. Certainly, guidelines
attached to legislation do have the benefits of greater flexibility
as they do not need to be examined and passed by the Parliament and
are therefore far more readily varied and kept up-to-date.
Contrasting with this, where the provision of payments is supported
by legislation examined and passed by the Parliament, then this has
far more weight and security in terms of application and is far
less at risk of challenge or variance by courts/tribunals.
It is not unprecedented for work search activity
testing to be applied to certain types of SpB recipients. Generally
speaking, SpB recipients who are currently required to look for
work are those of working age capable of working. Common examples
are those paid SpB under an Assurance of Support, newly arrived
residents in the 104 week waiting period for NSA or YA. The
activity test requirements are basically the same as for NSA and YA
recipients but there are no financial penalties for failing the
activity test, as applies with the 6 month payment reduction
periods for NSA and YA. However, the Secretary does have the power
to cancel SpB in cases where the specified activity testing
requirements are not met. All of the SpB work search activity test
requirements are set out in the Guide to Social Security Law not in
the SSA.(16)
Item 16 provides for the
continuance of activity agreements across the transfer from SpB to
YA. The transfer from SpB to YA could only occur after the person
has been granted legal permanent residence.
Item 18 mirrors Item
16 but applies for transfers from SpB to NSA and the same
comments apply.
Items 19 and
20 alter the basic qualification section in the
SSA that applies for SpB to add for temporary visa holders of
certain classes (that is, temporary protection, humanitarian and
safe haven), that they have to satisfy extra qualification
requirements. Items 19 and 20 further add that other conditions
need to be met for the additional qualification requirements to
apply. These additional requirements are the ones that also
commonly apply to newstart and youth allowance, for example.
Items 19 and 20 further
stipulate that these extra qualification requirements apply only
for those claiming SpB on or after 1 January 2003, or, where being
paid SpB before that date, are still being paid SpB and reach
work-force age after 1 January 2003.
Items 22 to 25 insert the
activity test requirements and penalties for the designated TPV
holders and mirrors the activity test provisions already in the SSA
for NSA and YA.
Item 27 provides the additional
$20.80 per fortnight participation supplement also provided to NSA
and YA recipients.
Subdivision C inserts the rate
reduction provisions for work search activity test breaches that
also apply for NSA and YA recipients. Subdivision
D inserts the rate reduction provisions for administrative
breaches that also apply for NSA and YA recipients.
Schedule 2 of this Bill amends
the activity test and mutual obligation provisions set out in
Schedule 1 of the Bill. The reason these
amendments are necessary is that the commencement of
Schedule 2 amendments is contingent on the passage
of the Family and Community Services Legislation Amendment
(Australians Working Together and other 2001 Budget Measures) Bill
2002 (the AWT Bill). The AWT Bill is currently before the
Parliament and Bills Digest No. 159 2001-02 refers.(17)
Schedule 2 is designed to commence immediately
after the commencement of Schedule 5 of the AWT Bill (1 July 2003)
and to ensure that activity testing requirements will be consistent
for SpB and NSA recipients.
Schedule 3 makes minor
legislative housekeeping amendments arising from the passage of the
Youth Allowance Consolidation Act 2000.
The feature of this Bill is Schedule
1, proposing to place into the SSA provisions to ensure
that TPV holders who are unauthorised arrivals have to comply with
the work search activity test and mutual obligation requirements of
NSA and YA to qualify for SpB.
-
- T. H. Kewley, Social Security in Australia 1900-72,
2nd edition, Griffin Press Adelaide, 1972, p. 269.
- PART 2.15-SPECIAL BENEFIT
Division 1-Qualification for and payability
of special benefit
Subdivision A-Qualification
Qualification for special
benefit
729.(1) A person is qualified for a special
benefit for a period if the Secretary determines, in accordance
with subsection (2), that a special benefit should be granted to
the person for the period.
Note: special benefit is a discretionary benefit
and is available only to a person who is not able to get any other
income support payment (see paragraphs (2)(a) and (b) below).
- Bills
Digest No. 162 1998-99, Migration Legislation Amendment (Temporary
Safe Haven Visas) Bill 1999.
-
Ruddock Announces Tough New Initiatives, Media Release No. MPS
143/99, The Hon Minister for Immigration and Multicultural and
Indigenous Affairs, the Hon. Mr Phillip Ruddock, MP, 13 October
1999.
- Department of
Immigration and Multicultural and Indigenous Affairs Fact Sheet No.
64 - Temporary Protection Visas.
- ibid.
- 2000-01 Budget, Budget Paper No. 2 - Budget Measures, pp. 132
135.
- 2000-01 Budget, Budget Related Paper No. 1.8, Family and
Community Services, Portfolio Budget Statements, p. 171.
- ibid.
- ibid.
- ibid.
- 2001-01 Budget, Budget Related Paper No. 1.8, Family and
Community Services, Portfolio Budget Statements, p. 201.
- ibid.
- ibid.
- Examination of Budget Estimates 2002-03, Immigration and
Multicultural and Indigenous Affairs Portfolio, Additional
Information Volume 3, August 2002, Question No. 60, p. 948.
- Guide to Social Security Law
3.7.5.10 - What is the SpB Activity
Test?
Summary
The SpB activity test requires SpB recipients
who are capable of looking for work to do so. Requiring 'capable'
SpB recipients to meet the SpB activity test means that Centrelink
can be sure that they are actively looking for work. The SpB
activity test is part of the mutual obligation to the community
that all people receiving income support need to fulfil. The SpB
activity test recognises that the primary focus for SpB recipients
who are capable of working should be finding paid work. It also
ensures that SpB recipients are endeavouring to earn a sufficient
livelihood and become self supporting.
Requirements of the SpB activity
test
SpB recipients who are considered capable of
looking for and undertaking work must meet the requirements of the
SpB activity test by:
-
- registering as a job seeker with Centrelink and completing a
'Looking for work' form, AND
-
- accepting referral to and enrolling with at least one Job
Network member, AND
-
- demonstrating that they are actively looking for suitable work
by reporting four (4) work efforts a fortnight on an 'Application
for payment' form (SU19), one of which must be by way of contact
with a Job Network member.
SpB recipients, including those subject to the
SpB activity test, are not required to enter into PFWAs, are not
compelled to complete a Job Seeker Diary and are not required to
complete Employer Contact Certificates. SpB recipients may choose
to undertake voluntary work however, they will still be required to
meet all requirements of the SpB activity test as well.
Suitable work opportunities
As with NSA recipients, SpB recipients should
not restrict their job search to their traditional occupations or
work that they would prefer to do. They should be seeking and
accepting any suitable employment. Customers are not expected to
look for or accept unsuitable work.
-
- Bills
Digest No. 159 2001-02, Family and Community Services Legislation
Amendment (Australians Working Together and other 2001 Budget
Measures) Bill 2002.
Peter Yeend
14 October 2002
Bills Digest Service
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