Bills Digest no. 14 2008–09
Social Security and Veterans' Entitlements Legislation
Amendment (Schooling Requirements) Bill 2008
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
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 27
August 2008
House: House of Representatives
Portfolio: Education, Employment and Workplace
Relations
Commencement:
Royal
Assent
Links:
The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Bill amends
the Social Security (Administration) Act 1999 (Cth) (SSAA), the A
New Tax System (Family Assistance) Act 1999 (Cth) (FAA), the
Student Assistance Act 1973 (Cth) (SAA) and the Veterans
Entitlements Act 1986 (Cth) (VEA), enabling the suspension or
cancellation of income support payments to a parent whose child is
either not enrolled in school or has unsatisfactory attendance at
school. The legislation will also provide for the implementation of
the School Attendance and Enrolment Pilot announced in the 2008 09
Budget.[1]
It has been extremely difficult to determine
how many children of school age are not attending school, either
because of non-enrolment or non-attendance. The Deputy Prime
Minister noted in her second reading speech on the Bill:
it is estimated that up to 20,000 Australian
children of compulsory school age may not be enrolled in school.
Many more are not attending school regularly enough to meet any
reasonable benchmark.[2]
School attendance has long been a concern
because, as Graeme Withers noted in his paper for the Dusseldorp
Skills Forum, it is not only a legal requirement but, more
significantly, it impacts on educational and thereby future life
outcomes, and thus society more broadly:
Failure to be in school long enough (early
leaving) or often enough (truancy) to gain basic skills and
knowledge has personal and social costs. Unemployment, poverty,
homelessness and minor or gross criminal activity can often be
linked to this basic failure. The community bears the social and
economic costs, which escalate if any trends to increased
non-compliance with the laws of compulsory school attendance are
not noticed and action taken to remedy the situation.[3]
The states have always had responsibility for
school attendance. The principle of compulsory education and the
requirements that compulsory school aged children must be enrolled
in and attending school, registered for home schooling or eligible
for exemption, are ensconced in state and territory education
legislation. These legislative requirements are supported by a
range of attendance-related policies and programs, which are
intertwined with more general programs such as those targeting
students at risk of becoming disengaged from school and students
with behavioural problems, as well as Indigenous education
strategies.
Generally, there are a number of features
common to these legislative provisions and programs, including:
- systems of regulated exemptions for attendance including home
education, distance education, inability to attend because of
illness or disability, and suspension or expulsion
- general prohibition of children of compulsory school age
working during school hours
- mandatory daily attendance registers for each school and
- processes for pursuing and resolving the non-enrolment or
non-attendance of compulsory school aged children. These processes
may be initiated by a school or other concerned persons, or by
authorised attendance officers (including police) who are empowered
to approach any child of compulsory school age who is not in school
during school hours. Mediation, counselling and support, usually
involving interagency collaboration, are provided to families and
children.
The final option is prosecution, which is
viewed as a last resort the preference is to try and resolve
attendance problems. However, this appears to be changing. While
most jurisdictions report few or no prosecutions (and even fewer
that are successful),[4] in NSW, as a result of legislative changes, 154
attendance prosecutions involving 191 children have been launched
since April this year approximately ten times the number heard over
the same period in 2007. [5]
State and territory school attendance
strategies are generally in accord with the consensus amongst
educators and community workers about what strategies work well.
According to a US analysis of the research into effective truancy
prevention and intervention, those approaches which have a solid
research evidence for their effectiveness , are intensive ongoing
interventions, involving well-defined attendance policies, parental
engagement, family counselling, individualised plans, a team
approach, trained school staff and ongoing evaluation.[6]
The same analysis singled out financial
sanctions against families and tying benefits to children s school
attendance as not having an impact on truancy.[7] Evaluations of US school
attendance programs have found that case management, not sanctions,
was the most important attribute of successful programs.[8]
However, research for the UK National
Foundation for Educational Research did find some support for
prosecutions prosecution made parents aware of their
responsibilities and made them realise the importance of school
attendance, albeit more successful for younger children.[9] An evaluation of the UK
school attendance strategy[10] concluded that, for secondary school students, the
effect of legal sanctions on the most disaffected students was
limited; however, the sanctions did send an important message and
were a deterrent to other students and their families.[11]
The Bill comes in the wake of recent national
developments targeting school attendance, which have all had a
particular focus on Indigenous children. As the result of
resolutions by the Council of Australian Governments (COAG) and the
Ministerial Council on Education, Employment, Training and Youth
Affairs (MCEETYA), all states and territories are now providing to
MCEETYA aggregated government and non-government school attendance
data, which will be reported in the National Report on
Schooling in Australia. This data will be provided for
analysis to the newly established National Student Attendance Unit,
which was also agreed to by COAG.[12]
With agreement from state and territory
education officials, the Australian Government has commissioned
research to develop a national picture of non-enrolments and
non-attendance, with an additional focus on Indigenous school
attendance. The research will:
- investigate the way data is collected and attendance is
managed, to get a more consistent approach
- collect information on successful practice strategies and
- recommend complementary strategies for the Australian
Government to implement.[13]
It is well known that education outcomes for
Indigenous children remain well below those for the general
population. The 2007 national reading tests show, for instance,
that 80.7 per cent of Year 3 Indigenous students met the national
benchmark compared to 93.4 per cent for all students; in Year 7 the
difference extended out to 64.7 per cent for Indigenous students
compared to 89.3 per cent for all students.[14] School retention rates for Indigenous
students also continue to be well below those of non-Indigenous
students the 2007 Year 12 apparent retention rate for
Indigenous students was 42.9 per cent compared to 75.6 per cent for
non-Indigenous students.[15]
The recent national school attendance
developments have therefore all had a particular focus on
Indigenous children, including an agreement to address absenteeism
in the Aboriginal homelands by sharing enrolment information
between South Australia, Western Australia and the Northern
Territory. In June 2008 the Department of Education, Employment and
Workplace Relations signed a contract with the Western Australian
Government to manage this project.
The Australian Labor Party (ALP) flagged the
issue of school attendance for Indigenous children in April
2007:
Special attention must be given to improving
the outcomes for Indigenous students. The research supports the
need not only for extra classroom support for at-risk children, but
diagnostic assessment to identify these children in the early years
of their schooling. In Indigenous communities, where low school
attendance is often a pressing problem, literacy and numeracy
skills foster a continued engagement with formal schooling.
Children feel that they can participate, understand and keep up
with classroom and other activities at a basic level. [16]
It later made an election commitment to
support a trial linking family and welfare payments to school
attendance .[17]
The 2008 09 Budget measure, the School Attendance and Enrolment
Pilot, gave effect to this commitment.[18]
The immediate effect of the Bill is the
implementation of the School Attendance and Enrolment Pilot. The
pilot, commencing from January 2009, will operate in six Northern
Territory communities and two metropolitan locations Cannington in
Western Australia and one other site, yet to be announced.[19] Under the pilot all
parents, who are also income support recipients, will be required
to notify Centrelink of their child s enrolment at school. State
education authorities or schools will be able to notify Centrelink
of a child s non-attendance at school. Centrelink can then advise
the parent that taking steps to ensure school attendance is a
condition of receiving income support.
A number of recent trials and policies have
linked school attendance to eligibility or access to welfare
payments. Such a policy is an extension of the broader concept of
mutual obligation in which eligibility for welfare payments is
dependent upon recipients carrying out certain activities such as
job-seeking or work for the dole programs.
In 2005, the Halls Creek School in Western
Australia, in partnership with the Remote Area Service Centre and
Centrelink, commenced a trial no school, no welfare
program.[20] Around
16 Parenting Payment recipients, whose children had school
attendance problems, were asked to attend an interview at
Centrelink. Those who did not turn up to the interview risked
having their payment suspended. A number of recipients had their
payments suspended during the two-month period that the trial was
running.
The trial was stopped when concerns were
raised that there were no provisions under the SSAA to suspend
payments for failure to turn up to an interview when the interview
was not regarding payment eligibility or participation related
issues.[21] The
concerns, expressed in the trial s evaluation report, should not be
a surprise. The powers in the SSAA (and also the FAA and the VEA)
can only be used for the purposes of the Act, which is to ask
questions only about qualification or the rate of payment. This
realisation not only led to a second voluntary trial the
Engaging Families trial but also the Income Management
Regime (IMR) arrangements of 2007, in which payment could be
diverted to a Centrelink-run account (see below).
The voluntary trial, Engaging
Families, ran from February to July 2006, involving 30
Parenting Payment recipients who had 66 school aged children in
their care. The trial involved parents signing an agreement with
Centrelink to participate in job seeking, training and other
activities whilst also encouraging their children to attend school.
There was no threat of sanctions or payment suspension. These
parents were previously exempt from activity test participation
requirements under Remote Area Exemptions.
The initial 2005 Halls Creek trial, which
suspended payments for those who failed to attend an interview,
reportedly increased school attendance rates from 54 per cent to 80
per cent.[22]
However, the number involved in the trial was very limited. The
subsequent Engaging Families trial saw no improvement in
school attendance rates.[23]
Generally, welfare
payments are inalienable that is, where a person is qualified to
receive a payment and entitled to an amount of payment, the payment
is his or her legal right and cannot be refused or provided to
someone else. This applies to the income support and income
supplement payments provided under the Social Security Act
1991 (Cth) (SSA), the family assistance payments provided
under the FAA and payments provided under the VEA.
There have been
long-standing provisions in the SSA, the SSAA and the VEA providing
for the inalienability of payments. The Bill will add another
circumstance where, notwithstanding the current inalienability of
payment provisions in the SSAA and the VEA, there will be
circumstances where an individual qualified to receive a payment
will not be paid that payment. This will be where the Bill s
proposed suspension and cancellation of income support provisions
for a child s non-enrolment or non-attendance at school will
apply.
The inalienability provisions
in the various Acts are set out below:
- section 60 of the SSAA provides for inalienability of payments
under the SSA.[24]
Section 61 of the SSAA allows the payment recipient to elect to pay
some part of his or her payment (deductions) to another party, for
example, to an energy or electricity provider. Section 238 of the
SSAA allows deductions to be made to the Taxation Commissioner for
tax owed or to the Child Support Agency for an enforceable (child)
maintenance liability. Sections 1231 and 1234A of the SSAA allow
deductions to recover debts; that is, section 1231 for debts
arising under the SSAA and section 1234A for deductions for other
debts with the person s consent. Other than these specific
qualifications, the inalienability provisions in the SSAA mean that
payments under the SSAA must be provided to the qualified
person.
- section 66 of the FAA provides for the inalienability of its
payments[25]
and
- section 125 of the VEA provides for the inalienability of its
payments.[26]
The main purpose of the inalienability
provisions in the SSAA, the FAA and the VEA is to provide for the
protection of payments. That is, to ensure that where a person is
qualified to a payment and entitled to a rate of payment, he or she
receives that payment. There would be no point in providing for
payments in a welfare or payments assistance Act if another person
or body, or other legislation, allowed for the diversion or
non-payment of the payment to the individual. For example, the
provisions protect payment from a Minister or a public official
deciding that a payment should not be provided to an individual or
to a group of persons.
The payment suspension and cancellation
provisions in the Bill, which override the general inalienability
provisions of the SSAA and the VEA, have parallels with the IMR
arrangements that were introduced under the national emergency
response to protect Aboriginal children in the Northern
Territory.[27]
Under the IMR arrangements, payments are diverted into a
Centrelink-controlled account for the individual, from which
purchases and payments can be made for approved items like rent,
food, transport, etc.
The main difference between the IMR provisions
and the suspension and cancellation arrangements presented in the
Bill is that under the IMR provisions payments are diverted into a
Centrelink controlled account for the individual. Payments continue
and are not suspended or cancelled.
The other main difference is that the
provisions in the Bill refer only to income support payments and
not to income supplement payments. Income support payments refer to
the pension type payments under the SSA, such as the Age Pension,
Disability Support Pension and Parenting Payment Single.[28] Income support
payments under the SSA also refer to the benefit and allowance
payments such as Newstart Allowance,[29] Sickness Allowance, Parenting Payment
Partnered,[30]
Youth Allowance[31]
and Austudy Payment.[32] The income support payments provided under the VEA
refer to the Age Service Pension, Partner Service Pension,
Invalidity Service Pension, Defence Force Income Support Allowance
and Income Support Supplement.
The suspension and cancellation provisions in
the Bill do not refer to the income supplement payments provided
under the FAA that is, Family Tax Benefit Part A, Family Tax
Benefit Part B and Child Care Benefit. Therefore, where the income
support payment is suspended or cancelled under the provisions in
the Bill, the person would continue to receive any income
supplement payments they are otherwise entitled, such as Family Tax
Benefit Part A, Family Tax Benefit Part B and Child Care Benefit.
This contrasts with the IMR arrangements where management of
payments includes both income support pension and benefits payments
and also income supplement payments like Family Tax Benefit Part
A.
Had these schooling provisions extended to
income supplement payments, they would have applied to a greater
number of families with a schooling requirement child , being those
on an income supplement but not on income support. Certainly the
non-payment sanction would be more diluted being referenced to only
the income supplement families, especially those on lower or
minimum rate payments. In the 2006 07, a total of 1 769 453
families received Family Tax Benefit Part A in respect of 3 447 535
children. Of these, 437 632 families received Family Tax Benefit
Part A in respect of 828 955 children and were also paid income
support. This leaves 1 332 008 families paid in respect of 2 618
580 children who received Family Tax Benefit Part A not on income
support.[33]
The amendments proposed in the Bill will
empower Centrelink to suspend for up to 13 weeks and then cancel
income support payments where a child of the parent does not comply
with the school enrolment or attendance requirements. If a
suspension is lifted, because the school enrolment or attendance
requirements of a parent are considered met, payment will be
restored and arrears paid.
Where a parent has a reasonable excuse or is
taking reasonable steps to ensure school attendance, they will be
considered to have complied with their requirements. These are not
described in the Bill, so that will be a matter for guidelines,
which are yet to be developed.
The Minister in presenting the Bill
announced:
Suspension of payments would only be used as a
last resort following repeated attempts to engage a parent over a
considerable period of time and would only be applied in those
cases where a parent has not provided a reasonable excuse or there
are some other special circumstances accounting for their inability
to comply.
Only in the most extreme cases of parental
noncooperation, where there is no evidence of a reasonable excuse
or special circumstance, and only after a minimum of 13 weeks of
suspended payments, it may be appropriate to cancel income support
payments. [34]
In an answer to a Question without Notice,
Senator the Hon. Chris Evans advised that examples of reasonable
excuses will include:
- no appropriate school places available in area
- reasonable belief that school cannot provide a safe environment
(and no other appropriate school available)
- school or education authority rejects application (and no other
appropriate school available) and
- school vacation period.[35]
Provisions in the Bill insert schooling
requirements into the SSAA and the VEA to be complied with in
respect of certain income support payments. Schooling requirements
would apply to a claimant, or a person receiving payment, where the
person has a schooling requirement child .
A child is a schooling
requirement child of the person where the child is:
- a dependent child of the person
- under a family law order or a parenting plan made under the
Family Law Act 1975 (Cth) (FLA), the child is supposed to
live with or spend time with the person or
- assuming the family law order or a parenting plan made under
the FLA is complied with during the period, the child is in the
person s care for at least 14 per cent of the time.
The provisions in the Bill provide for the
suspension and cancellation of income support payment where a
person fails to comply with the school enrolment and attendance
requirements of the Bill. Set out below are the principal elements
of the suspension and cancellation provisions and some general
comments and observations about these provisions:
- payment can be suspended for up to 13 weeks.
Suspension of
payment is commonly used in other circumstances in the SSA. For
example, under the breach provisions attached to the Newstart
Allowance in which payment can be suspended for eight weeks on the
third breach in twelve months. Suspension means the payments are
not cancelled and the person remains qualified for the payment the
payment is just suspended. Suspension of payment also means that
where it is decided to recommence payment, the person does not need
to reclaim as payment has not been cancelled.
- where payment is suspended but later restored, full arrears of
payment are to be made. Arrears can be in the form of a lump sum or
a series of payments.
Payment may be
suspended more than once arising from the one non-compliance with
the schooling provisions. This provides for flexibility in the
application of suspensions, as there may be a restoration where it
is considered the schooling requirements are about to be complied
with, but the compliance fails to eventuate.
- where suspension of payment exceeds 13 weeks, the relevant
Secretary must make a decision as to whether to continue the
suspension of payments or to cancel payments.
This means there
is provision for the continued suspension of payment for more than
13 weeks. This gives some flexibility on a case-by-case basis,
where it is considered the decision to cancel payment (with the
consequences that step entails) may not be appropriate, as the
person is about to comply with the schooling provisions. Given
suspension means the non-payment of income support to a
welfare-dependent person, it is highly unlikely that any suspension
will ever approach 13 weeks in duration.
- after 13 weeks suspension of payments, the Secretary can cancel
payments.
This also means
that cancellation of payment under the schooling requirements
cannot be done until suspension exceeds 13 weeks. The 13-week
period need not be a continuous period but can be an accumulation
of 13 weeks suspension of payment.
The cancellation
of payment has greater consequences than the suspension of payment.
Cancellation requires the person to reclaim for payment to commence
again. This would mean that if and when payment is subsequently
made to the person, payment would commence from the date of
reclaiming.
- where payment has been suspended for less than 13 weeks and is
then later restored, full arrears of payment are to be made.
The vast majority
of suspensions will probably be for less than 13 weeks, so in most
cases full arrears will be made.
- where payment has been suspended for more than 13 weeks and
then later restored, the restoration date is normally to be the
date the decision to restore payment is made.
However, the restoration date can be earlier
and can be determined by the Secretary. This will probably be a
matter for guidelines and there is the power to provide full
arrears. This provides some flexibility as to how much arrears are
to be paid when suspension exceeds 13 weeks.
The measures provided by the Bill will cost
$17.6 million over three years: $0.1 million in 2007 08, $16.7
million in 2008 09 and $0.8 million in 2009 10.[36] The high amount in 2008 09 is
for the School Attendance and Enrolment Pilot, which will commence
from January 2009.
Item 1 amends the definition
of receiving in subsection 3(1) of the FAA to include references to
an income support payment. Item 2 inserts
proposed section 3AA to provide the meaning of
receiving to be affected by suspension of certain schooling
requirement payments. There are provisions in the FAA that refer to
whether the claimant is receiving an income support payment. For
example, where an income support payment is being received the
person is entitled to the maximum rate of Family Tax Benefit Part
A. These amendments will ensure that a person continues to be
considered as receiving a payment during a schooling requirement
suspension period. There are like provisions that apply where a
Newstart Allowance recipient is serving an eight-week non-payment
period for their third beach in twelve months. They are considered
to be still receiving an income support payment and therefore
continue to qualify for maximum rate Family Tax Benefit Part A.
Item 3 inserts
proposed section 37AA into the SSAA, to provide
for the granting of a claim for an income support payment without
payment commencing as the schooling requirement provisions apply at
grant. The claim is still considered to have been granted and the
date of grant is not altered. It is just that no payments are
made.
Item 4 inserts
proposed paragraph 85(1)(a), providing for the
regranting of a payment after cancellation. As with other decisions
under the SSA and the SSAA, the appeal has to be made within 13
weeks of the cancellation decision for any restoration to take
effect from the date of cancellation.
Item 6 inserts the
substantive schooling requirement provisions (Part 3C Schooling
requirements).
Proposed section 124 sets out
to whom the schooling requirement provisions are to apply, being to
a person claiming an income support payment with a child in his or
her care as required by the schooling provisions and the child is
required by a state or territory law to be enrolled in and attend
school.
Proposed
section 124A sets out definitions of attendance ,
enrolment and person responsible at a school for the purposes of
the schooling requirement provisions.
Proposed
section 124B sets out more schooling definitions, being
school requirement child and schooling requirement period . A child
is a schooling requirement child of the person where the child
is:
- a dependent child of the person or
- under a family law order or a parenting plan made under the
FLA, the child is supposed to live with or spend time with the
person or
- assuming the family law order or a parenting plan made under
the FLA is complied with during the period, the child is in the
person s care for at least 14 per cent of the time.
Proposed subsection 124B(2)
provides for the Minister, by way of a legislative instrument, to
describe a school requirement period. Under the Legislative
Instruments Act 2003 (Cth) (LIA), legislative instruments are
generally disallowable by the Parliament.[37] This makes sense as it provides for
flexibility in deciding what periods the schooling requirements are
to apply, being linked to school periods in different locations and
in individual cases.
Proposed section 124C
provides for the Minister, by way of a legislative instrument, to
determine school enrolment and attendance. The Ministerial
determinations would then be disallowable by the
Parliament.[38] As
described by the Minister in her second reading speech, Centrelink
is to exercise discretion in applying suspensions and they are to
be only used as a last resort.[39] Given that suspensions and cancellation of
payments for a child s non-enrolment or non-attendance at school
has not been previously done, it makes sense to have the actual
detail of when suspensions and cancellations should occur in
determinations issued by the Minister if it is not to appear in the
Act itself.
Proposed section 124D sets
out the definition of school requirement payment , being the income
support payments provided under the SSA and the VEA. The income
supplement payments like Family Tax Benefit Part A, Family Tax
Benefit Part B and Child Care Benefit are not included, so during
any school requirements suspension period they continue to be
received. Both the income support and supplement payments are
included with the IMR provisions of 2007,[40] which can include payments
administered by Centrelink. There is no explanation as to why the
income supplement payments are not included here.
Proposed section 124E
provides for the treatment of income support payments under the VEA
as if they were administered by Centrelink. It essentially gives
powers to Centrelink in regard to payments under the VEA normally
administered by the Department of Veterans Affairs (DVA). Rather
than have the schooling provisions for VEA payments administered by
DVA, the provisions will enable Centrelink to apply the school
requirement provisions to VEA income support payments. The
Explanatory Memorandum explains that this is for reasons of
effective and streamlined delivery of the provisions.[41]
Given the probable smaller number of schooling
requirement cases for the income support payments provided under
the VEA, compared to those applied under the SSA, it probably makes
sense. It also makes sense (as a matter of consistency) if the
application of the provisions, that is considerations about whether
the suspension or cancellation is to apply to a case, should be
made by one agency.
Proposed section 124F
empowers the Secretary to require a schooling required person to
provide proof of school enrolment, either in writing or in an oral
statement.
Proposed section 124G is the
main section authorising the suspension or cancellation of an
income support payment, where the school enrolment requirements are
not met. For example, under proposed
subsection 124G(1), a schooling requirement
payment is not payable where the person fails to provide proof of
school enrolment. Proposed subsection
124(2) provides for the flexibility in the application of
this provision, where the Secretary considers the person has a
reasonable excuse or special circumstances apply. The details of
such circumstances are to be set out in the schooling requirements
determination (see proposed section 124C
above).
Proposed section 124H sets
out the provisions for the suspension and cancellation of payments
for non-compliance with school enrolment after a school enrolment
notice has been issued. Proposed paragraph
124H(2) details that the Secretary must suspend or cancel
payment only after payment has been suspended for a total of at
least 13 weeks. The 13-week suspension period can be made up of
separate periods it need not be 13 consecutive weeks. The Secretary
can also suspend or cancel after 13 weeks suspension; it need not
be a cancellation but, where it is not a cancellation, the
Secretary must decide to suspend payment. Proposed section
124H(3) provides the Secretary with the power to make
multiple decisions in relation to an enrolment notice.
Proposed section 124J sets
out the provisions for the resumption of payment after it has been
suspended. Proposed subsection 124J(2) states that
the Secretary must restore payment where the enrolment notice
provisions no longer apply. Proposed subsection
124J(3) provides that where payment has been
suspended for less than 13 weeks, full arrears are to be paid.
Proposed subsection 124J(4)
details that where payment has been suspended for more than 13
weeks (be that one period or an accumulation of periods), either
full arrears or only those incurred from the date of
reconsideration may be payable. Proposed
subsection 124J(5) gives the Secretary a
discretion to pay full arrears in special circumstances.
Proposed subsection 124J(6) allows for the arrears
to be paid in a lump sum or a series of regular payments.
Division 3 sets out proposed
provisions similar to those in Division 2, but for
school attendance requirements.
Proposed section 124K sets
out the school attendance provisions in regard to attendance
notices. Proposed subsection 124K(1) states that
section 124 applies where a person has a school
enrolment child and a person responsible for the operation of a
school gives the Secretary written notice that the child is failing
to attend school and that the schooling requirement person is
failing to take reasonable steps to ensure the child attends
school, as required by state or territory law. Proposed
subsection 124K(2) empowers the Secretary to then issue
the person a school attendance notice to take reasonable steps to
comply with the schooling requirements.
Proposed section 124L states
that a schooling requirement payment (income support payment) is
not payable where a schooling requirement person fails to comply
with a notice issued under subsection 124K. Proposed
subsection 124L(2) states that subsection
124L(1) does not apply if the Secretary is satisfied the
person has a reasonable excuse for failing or in other special
circumstances of the case. Therefore it is appropriate the notice
requirement provisions are not inflexible. What constitutes
reasonable excuse and also special circumstances are to be spelt
out in a Ministerial determination made under the proposed section
124C. Proposed subsection 124L(3) details that the
school attendance requirement suspension and cancellation
provisions can only be applied as set out in proposed
section 124M. Proposed subsection
124L(4) states a school requirement payment under the VEA
cannot be suspended or cancelled under proposed subsection
124L(1) except as provided by proposed section
124M (see below).
Proposed section 124M sets
out the suspension and cancellation provisions for non-compliance
with an attendance notice. They are identical to the proposed
suspension and cancellation provisions for the non-compliance with
an enrolment notice as set out in section 124H.
Similarly, proposed section 124N
sets out the circumstances where a schooling requirement payment,
that has been suspended or cancelled under proposed section
124L, may be reconsidered. They are identical to the
provisions in relation to the reconsideration of a payment that is
suspended or cancelled for failure to comply with a school
enrolment notice.
The amendments in Division 4
are about the information exchange between the department
(including Centrelink) and schools, education departments and other
portfolio departments.
Proposed section 124P allows
school persons, authorities and the states and territories to give
information to Centrelink about school enrolment and
attendance.
Items 8 and 9 amend the
information gathering powers in the SSAA (section 195) to include
not just the immediate information about a child s school enrolment
or attendance but also past or present enrolment or attendance.
This information may be relevant if the Secretary is to exercise
discretion about whether a schooling requirement person has a
reasonable excuse or if special circumstances exist for failing to
comply with an enrolment or attendance notice.
Item 11 amends section 202 of
the SSAA which concerns the protection of personal information.
Section 202 of the SSAA allows protected information to be obtained
and used for the purposes of the SSA and the SSAA. Proposed
subsections 202(6) and (7) will extend the application of
section 202 to allow information to be obtained, recorded and
disclosed for the purposes of the schooling requirement
provisions.
Items 12 to 20 insert new
definitions and terms such as attendance and enrolment into
Schedule 1 of the SSAA, which is the dictionary for that Act.
Items 22 to 28 amend the SAA.
The SAA basically provides the legislative framework for the
ABSTUDY scheme but payments are made by regulation, unlike the
Youth Allowance and Austudy payment, which are the two main student
assistance payments delivered under the SSA. The amendments to the
SAA refer to the exchange of information regarding recipients of
ABSTUDY payment for the purposes of the schooling requirements.
Items 29 to 33 amend the VEA
to provide that the income support payments provided under the VEA
may not be payable where they have been suspended or cancelled
under the schooling provisions of Part 3C of the SSAA. These income
support payments are the Age Service Pension, Partner Service
Pension, Invalidity Service Pension, Income Support Supplement and
the Defence Force Income Support Allowance.
The Minister has indicated that the suspension
or cancellation of income support payments will be a measure of
last resort and applied only if parents are not taking action to
remedy their child s non-enrolment or non-attendance at school. The
Bill does not address the non-enrolment or non-attendance of
school-aged children whose parents are not income support
recipients.
The Bill s schooling requirements for
claimants and payment of income support payments has parallels with
the IMR provisions introduced to the SSA, the FAA and the VEA in
2007 under the national emergency response to protect Aboriginal
children in the Northern Territory.[42] Similar to the IMR provisions, the
schooling requirement provisions in the Bill present the power to
not pay a person qualified to receive a welfare payment under the
SSAA or the VEA. However, these provisions go further payment may
be suspended and eventually cancelled. This is more radical than
the IMR provisions, where payment is diverted to Centrelink to be
managed and used for essential and reasonable expenditure of the
person. The IMR provisions do not contain any suspension or
cancellation arrangements.
Many governments and non-government
organisations and individuals have attempted to improve the social
and economic circumstances of Indigenous Australians for many
years. For a long time, the capacity to influence their behaviour
and change their circumstances has been limited by their
inalienable access to income support payments an individual s
willingness to change his or her behaviour may be diluted when he
or she knows that, whatever else happens, ultimately they will
still be provided with financial support. Awareness of this welfare
conundrum was reinforced by the social engagements and welfare
trials conducted at places like Halls Creek. As Noel Pearson,
Director of the Cape York Institute, has commented:
The predicament of Aboriginal people has thrown
into sharp relief the problems with welfare. The safety net as a
guarantee for those temporarily disengaged from the real economy
and as long-term support for the disabled and the aged, is a
measure and mark of our civil community and consensus. The safety
net as a permanent solution for able-bodied people, is not just
undesirable, it is destructive. The experience of Aboriginal
Australians disengaged from the real economy tells us this
plainly.[43]
The need to address the welfare conundrum was
at the heart of the national emergency response to protect
Aboriginal children in the Northern Territory. The schooling
requirement provisions in the Bill are motivated by the same
imperative, but they are much tougher. They are also being proposed
when the evidence about the effectiveness of income support
withdrawal and legal sanctions to improve school attendance is
mixed.
However,
while the Bill s provisions are unprecedented in welfare
legislation, the reality is that there will probably be very few
situations where a suspension of payment ever approaches 13 weeks.
A welfare-dependent family will not be able to tolerate that level
of financial disadvantage even if they continue to receive income
supplement payments such as Family Tax Benefit Part A.
[2]. Julia Gillard,
Minister for Education, Minister for Employment and Workplace
Relations and Minister for Social Inclusion, Second reading speech:
Social Security and Veterans' Affairs Entitlements Legislation
Amendment (School Requirements) Bill 2008 , House of
Representatives, Debates, 27 August 2008, p. 1,
http://parlinfoweb.aph.gov.au/piweb/TranslateWIPILink.aspx?
Folder=hansardr&Criteria=DOC_DATE:2008-08-27%3BSEQ_NUM:5%3B,
accessed on 31 August 2008.
[17]. K. Rudd, J.
Macklin and S. Smith, Federal Labor plan to get remote
Aboriginal children to enrol in school, media release, ALP,
Canberra, 1 July 2007, http://www.alp.org.au/media/0707/msedutfcsloo010.php,
accessed on 30 August 2008.
[24]. SSAA, subsection 60(1): A social security payment is absolutely
inalienable, whether by way of, or in
consequence of, sale, assignment, charge, execution, bankruptcy or
otherwise.
[25]. FAA, subsection
66(1):
Payments of the
following are absolutely inalienable, whether by way of, or in
consequence of, sale, assignment,
charge, execution, bankruptcy or otherwise:
(a) family tax benefit;
(b) family tax benefit
advances;
(c) baby bonus;
(d) maternity immunisation
allowance;
(e) child care benefit;
(f) payments under
section 219Q or
subsection 219QA(2) in respect of fee reduction;
(fa) payments of enrolment
advances under
section 219RA;
(g) one-off payment to
families.
[26]. VEA,
subsection 125(1): Subject to this Act, a pension, allowance or
other pecuniary benefit under this Act is absolutely inalienable,
whether by way of, or in consequence of, sale, assignment, charge,
execution, bankruptcy or otherwise.
[27]. Peter
Yeend and Coral Dow, Social Security and Other Legislation
Amendment (Welfare Payment Reform) Bill 2007 , Bills
Digest, no. 27, Parliamentary Library, Canberra, 2007
08, http://www.aph.gov.au/library/pubs/SearchResults.asp,
accessed on 1 September 2008.
[28]. Parenting
Payment single is payable to a sole parent and is a pension rate
payment and is more commonly referred to as the sole parent
pension.
[29]. Newstart
Allowance is payable to unemployed jobseekers aged 20 up to age
pension age and who are actively seeking paid work it is commonly
referred to as the unemployment benefit.
[34]. ibid.
[40]. Peter Yeend and Coral Dow, Social Security and Other
Legislation Amendment (Welfare Payment Reform) Bill 2007, Bills
Digest No. 27 2007-08, op. cit.
Marilyn Harrington and Peter Yeend
2 September 2008
Bills Digest Service
Parliamentary Library
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