Bills Digest no. 32,
2017–18
PDF version [300KB]
Don Arthur, Dale Daniels and
Matthew Thomas
Social Policy Section
Paula Pyburne
Law and Bills Digest Section
8 September 2017
This Digest replaces an earlier version dated 5 September 2017 as the original version only dealt with Schedules 12–14 of the Bill. This Digest deals with all Schedules (1–18).
Contents
Purpose of the Bill
Structure of the Bill
Structure of this Bills Digest
Committee consideration
Senate Community Affairs Legislation
Committee
Senate Standing Committee for the
Scrutiny of Bills
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Schedule 1—Creation of Jobseeker
Payment
Commencement
Financial implications
Background
Dependency based payments
Steps towards the removal of
dependency based payments
Changes to payments and transitional
arrangements
Position of major interest groups
Key provisions
Schedule 2—Cessation of Widow B
Pension
Commencement
Financial implications
Changes to eligibility
Table 1: Widow B Pension
Key provisions
Schedule 3—Cessation of Wife Pension
Commencement
Financial implications
Changes to eligibility
Table 2: Wife Pension
Key provisions
Transfer to pension
Transfer to carer payment
Transfer to jobseeker payment
Schedule 4—Cessation of Bereavement
Allowance
Commencement
Financial implications
Changes to eligibility
Table 3: Bereavement Allowance
Policy position of non-government
parties/independents
Key provisions
Schedule 5—Cessation of Sickness
Allowance
Commencement
Financial implications
Changes to eligibility
Table 4: Sickness Allowance
Key provisions
Schedule 6—Cessation of Widow
Allowance
Commencement
Financial implications
Changes to eligibility
Table 5: Widow Allowance
Key provisions
Schedule 7—Cessation of Partner
Allowance
Commencement
Financial implications
Changes to eligibility
Table 6: Partner Allowance
Key provisions
Schedule 8—Minister’s rules
Commencement
Financial implications
Key provisions
Schedule 9—Changes to activity tests
for persons aged 55–59
Commencement
Financial implications
Background
Key Provisions
Schedule 10—Start day for some
participation payments
Commencement
Financial implications
RapidConnect
The RapidConnect process
The new measures
Key issues and provisions
Stakeholder comment
Schedule 11—Removal of Intent to
Claim provisions
Commencement
Financial implications
Background
Policy position of non-government
parties/independents
Position of major interest groups
Key Provisions
Schedule 12—Establishment of a drug
testing trial
Commencement
Financial implications
Background
Principled versus pragmatic
considerations
Earlier Australian proposals
United Kingdom experience
Welfare reform proposals
Welfare Reform Act 2009
Plans for a pilot scheme
Income management proposal
The Black Review
Policy position of non-government
parties/independents
Australian Labor Party
Australian Greens
Nick Xenophon Team
Jacqui Lambie
Other independents
How the drug testing trial will
operate
Selection of the three trial sites
Selecting recipients for drug testing
Scrutiny of Bills Committee
Recipients who fail the first test
Recipients who fail second or
subsequent tests
Recipients to repay the cost of
positive tests
Sanctions
Refusal to undertake drug test
Key issues
Lack of consultation during policy
development
Questions about the Government’s
objectives
Evaluation
Privacy and stigmatisation
The role of contractors
Schedule 13—Removal of exemptions for
drug or alcohol dependence
Commencement
Financial implications
Background
Mutual obligation
requirements
Key provisions
Schedule 14—Changes to reasonable
excuses
Commencement
Financial implications
Background
Key provisions
Key issues
Whether the treatment
is ‘voluntary’
Availability of treatment
Whether substance use
and abuse is a barrier to employment
Figure 1: drug use by employment
status, people aged 14 or older, 2013 (per cent)
Stakeholder comments
Think tanks—The Centre for
Independent Studies
Drug and alcohol groups
Queensland Mental Health and Drug
Advisory Council
Australian National Council on Drugs
(ANCD)
Victorian Alcohol and Drug
Association (VAADA)
Western Australian Network of Alcohol
and other Drug Agencies (WANADA)
Penington Institute
Alex Wodak and GetUp
Welfare sector
Brotherhood of St Laurence
Australian Council of Social Service
(ACOSS)
National Social Security Rights
Network
Anglicare Australia
Catholic Social Services Australia
(CSSA)
UnitingCare Australia
Melbourne City Mission
Good Shepherd Australia New Zealand
Samaritans
Professional bodies
Royal Australasian College of
Physicians
Victorian Government
Schedule 15—Targeted compliance
framework
Commencement
Financial implications
Background
Current compliance framework
Proposed compliance framework
Policy position of non-government
parties/independents
Key issues and provisions
Current compliance failures
New compliance failures
Acting in an inappropriate manner
Actions for new compliance failures
Removal of waiver provisions
No payment pending merits review
Other provisions
Concluding comments
Schedule 16—Streamlining tax file
number collection
Commencement
Financial implications
Background
Position of major interest groups
Key Provisions
Table 7: Consequences of not
satisfying a request for a tax file number
Schedule 17—Information management
Commencement
Financial implications
Key provisions—FAA Act
Power to obtain information
Obtaining information about debtors
Notice provisions
Self-incrimination
Relationship with other laws
Other provisions
Amendments to the SSA Act
Amendments to the Student Assistance
Act
Schedule 18—Alignment with disability
discrimination law
Commencement
Financial implications
Key provisions
Human Rights Committee
Date introduced: 22 June 2017
House: House of Representatives
Portfolio: Social Services
Commencement: Various dates as set out in the body of this Bills Digest
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s homepage, or through the Australian Parliament website.
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at September 2017.
Purpose of
the Bill
The primary purpose of the Social Services Legislation
Amendment (Welfare Reform) Bill 2017 (the Bill) is to amend social welfare
statutes to:
- create
a single job seeker payment
- establish
a drug testing trial and
- remove
existing exemptions for jobseekers experiencing drug or alcohol dependence.
Structure of the Bill
The Bill has 18 Schedules as follows:
- Schedule
1 amends the A
New Tax System (Family Assistance) Act 1999 (FA Act) Farm Household
Support Act 2014, Income Tax
Assessment Act 1936 (ITAA 1936), Income Tax
Assessment Act 1997 (ITAA 1997), Social Security
Act 1991 (SS Act), Social Security
(Administration) Act 1999 (SSA Act) and the Veterans’ Entitlements
Act 1986 (VEA) to create a single job seeker payment
- Schedule
2 amends the ITAA 1936, the ITAA 1997, the SS Act, the SSA
Act, the Social
Security (International Agreements) Act 1999 (SS International
Agreements Act) and the VEA to bring about the cessation of widow B
pension
- Schedule
3 amends the FA Act, the Child Support
(Assessment) Act 1989, the ITAA 1936, the ITAA 1997, the SS Act,
the SSA Act, and the VEA to bring about the cessation of wife
pension
- Schedule
4 amends the ITAA 1997, the SS Act, the SSA Act, the SS
International Agreements Act and the VEA to bring about the
cessation of bereavement allowance
- Schedule
5 amends the A
New Tax System (Medicare Levy Surcharge—Fringe Benefits) Act 1999 and
other social welfare statutes to bring about the cessation of sickness
allowance
- Schedule
6 amends social welfare statutes to bring about the cessation of widow
allowance
- Schedule
7 amends socials welfare statutes to bring about the cessation of Partner
allowance
- Schedule
8 contains a rule-making provision for the Minister
- Schedule
9 amends the SS Act to change the activity tests for persons aged 55–59
- Schedule
10 amends the SSA Act to alter the start day to some participation
payments
- Schedule
11 removes the intent to claim provisions from the SS Act and the SSA
Act
- Schedule
12 establishes the drug testing trial
- Schedule
13 removes the exemptions for drug or alcohol dependence
- Schedule
14 amends the SSA Act to bring about changes to the reasonable excuses
- Schedule
15 introduces a new compliance framework for mutual obligation requirements in
relation to participation payments
- Schedule
16 streamlines the collection of tax file numbers
- Schedule
17 relates to information management and
- Schedule
18 amends the Disability
Discrimination Act 1992 to align the Social Security and disability
discrimination law.
Structure
of this Bills Digest
As the matters covered by many of the Schedules are
independent of each other the relevant background, stakeholder comments (where
available) and analysis of the provisions are set out under each Schedule
number.
Committee
consideration
Senate
Community Affairs Legislation Committee
The Bill has been referred to the Senate Community Affairs
Legislation Committee for inquiry and report by 4 September 2017.[1]
The Committee received 57 submissions. The contents of those submissions are
canvassed under the relevant Schedule headings below.
Senate Standing
Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny
of Bills Committee) reported on the Bill on 9 August 2017.[2]
The Committee made comments about certain amendments in Schedules 12, 14 and 15
of the Bill which are canvassed under the relevant Schedule headings below.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[3]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights reported
on the Bill on 15 August 2017.[4]
The Committee comments are canvassed under the relevant Schedule headings
below.
Schedule 1—Creation of Jobseeker Payment
Quick
guide to Schedule 1
The amendments in Schedule 1 to the Bill create the new
Jobseeker Payment. The rules about qualification for, and payment of,
Newstart Allowance in Part 2.12 of the Social Security Act will
provide the template for the Jobseeker Payment from 20 March 2020.
At that time Newstart Allowance, Sickness Allowance, Wife
Pension, Bereavement Allowance and Widow B Pension will cease and most
recipients of these payments will transition to Jobseeker Payment, Age
Pension or Carer Payment, depending on their circumstances.
|
Commencement
The amendments in Parts 1–5 of Schedule 1 to the Bill commence
on 20 March 2020. The amendments in Part 6 of Schedule 1 which relates to
enhanced residency requirements for pensioners commence immediately after the
commencement of Schedule 1 to the Social Services Legislation Amendment
(Payment Integrity) Act 2017 or on 20 March 2020—whichever is the later.[5]
However, if the Social Services Legislation Amendment (Payment Integrity)
Act 2017 does not commence, the amendments in Part 6 of Schedule 1 do not
commence at all.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 1 is an expense of $11.6 million.[6]
Background
Schedules
1–8 contain measures which abolish or amalgamate a number of payments for workforce-age
people. Many of the payments concerned are dependency-based payments which have
been closed to new applicants for many years as part of a policy implemented
late last century, which required all workforce-age income support recipients
to receive payments based on their employment capacity or their caring roles.
Several other payments are being amalgamated as part of a policy to simplify
the range of workforce-age payments.
In all, seven payments will cease to exist and one
Jobseeker Payment will be introduced to cater for the groups formerly eligible
for the abolished payments.
Dependency based payments
These changes complete a long running policy trend towards
the removal of dependency based payments from the social security system.
Dependency based payments were those which provided income support because a
person was dependent on another person who was no longer able to provide that
support. These payments were made for widows, deserted wives, divorced or
separated women and partners of income support recipients who had no workforce
attachment. Starting in 1987 with the tightening of eligibility for Widow Class
B Pension, income support was recast so that people formerly treated as
dependents had to seek income support in their own right based on their own
caring roles or capacity for employment.
Steps
towards the removal of dependency based payments
In July 1987, Widow Class B Pensions (WidB) eligibility
was restricted to:
- those
receiving WidB immediately before 1 July 1987
- those
who turned 45 years of age by 1 July 1987, and who received or subsequently
received Special Benefit (SpB) or Widow class A Pension and
- those
aged 50 years and over at 1 July 1987 and who were or subsequently became
widows.
This change reflected an expectation that older single
women should participate in the workforce.[7]
In September 1994, Partner Allowance (PA) was introduced,
replacing the additional amount of Newstart Allowance (NSA) or Sickness Allowance
(SA) paid to recipients with a dependent spouse. PA was paid directly to the dependent
spouse under the same rates and conditions as the partnered rate of NSA or SA
and subject to the same income and asset tests. This change reflected an
increased expectation that partnered women should not be treated as dependents
of their partners.[8]
In January 1995, Widow Allowance (WA) was introduced for
women who were no longer partnered, or who became separated, divorced or
widowed after turning 50 years of age and who had little or no recent workforce
experience. WA was paid under the same rates and conditions and income and
assets tests as Job Search Allowance (JSA) and Newstart Allowance (NSA). WA was
not activity tested and no job searching was required. Recipients were eligible
for certain labour market assistance, Employment Entry Payment and Education
Entry Payment. No new grants of WA were to be made after 30 June 2005. WA was
introduced due to concerns that the older widows without workforce experience
impacted by the Widow B Pension changes could not yet be expected to readily
move into the workforce. It was an interim measure until workforce attachment
for this age cohort improved.[9]
In July 1995, Parenting Allowance (PgA) was introduced for
PA recipients caring for children aged under 16 years. PgA was paid at same
rate and under same income and assets tests as NSA married rate. Partner
Allowance eligibility was restricted to dependent spouses aged over 40 years
with little or no recent labour market experience. Other spouses ineligible for
PgA or PA were required to apply for NSA in their own right. This change
distinguished between those with child caring responsibilities that limited
their employment options and those who should be able to enter the workforce.
PA became an interim payment for the age cohort of older women who had never
expected to be in the workforce and had little or no workforce experience.[10]
After 20 March 1997 no new WidB grants were made. WidB
recipients were automatically transferred to Age Pension on reaching age
pension age provided that they, and their partners, were Australian residents
at the time the WidB recipient was widowed. Eligibility for WA was extended to
women aged 50 years or more who had been widowed after turning 40 years of age.[11]
After September 2003 no new grants of PA were made. Those
unable to apply for PA were eligible to apply for NSA. PA was to be phased out
by 2020. This change reflected the increased workforce attachment of older
women.[12]
From July 2005 WA was to be phased out, with new grants
from this date only made to women born on or before 1 July 1955.[13]
Changes to payments and
transitional arrangements
The Bill includes transitional measures that ensure that
very few people will have a change in their rate of payment. The Minister’s
budget press release included the following statement:
Over 99 per cent of people will have no change to their payment
rates.[14]
Position of
major interest groups
The National Social Security Rights Network has
reservations about the abolition of Bereavement allowance and the situation of
wife pensioners who live overseas and will lose entitlements to any payment. Their
conclusion on the replacement of seven payments with the Jobseeker Payment is
as follows:
Overall the NSSRN supports this as a sensible reform to the
structure of working age payments which will have little or no impact on most
recipients. However, the Government has not addressed the critical issue of the
unacceptably low rate of payment of newstart and other allowances which, among other
things, undermines the reform to support for the bereaved. It should also
grandfather what are, in effect, changes to portability for a small number of
wife pension recipients.[15]
The Australian Council of Social Services (ACOSS) also
thinks that those wife pensioners who will lose any payment should be
grandfathered (in other words, the rule should not apply to those who benefited
from rules made before the current proposed changes).[16]
Key provisions
Part 1 of Schedule 1 to the Bill amends the FA Act,
Farm Household Support Act, ITAA 1936, ITAA 1997, SS Act, SSA
Act and the VEA to replace references to Newstart Allowance with
references to Jobseeker Payment.
Currently Part 2.12 of the SS Act sets out the
qualifications for, and the payability of, Newstart Allowance. Item 65
of the Bill renames the heading of Part 2.12 so that it refers, instead, to
Jobseeker Payment. Items 66–84 of Part 1 of the Bill substitute
references to Newstart Allowance with references to Jobseeker Payment. The
effect of these amendments is that the qualifications for Newstart Allowance
become the qualifications for Jobseeker Payment.
Items 85–96 of Part 1 of Schedule 1 to the Bill
make similar substitutions of terms in those sections which relate to the
activity test, whilst items 163–166 make similar substitutions of terms
in Division 4 of Part 2.12 which sets out how to calculate the rate of
Jobseeker Payment that is payable.
The effect of all the amendments in Part 1 is to preserve
the substantive law whilst updating the name of the payment being made.
Item 342 contains transitional provisions. In
particular subitem 342(2) provides that any claim for Newstart Allowance
that is lodged and not determined before these amendments commence will be
treated as if it is a claim for Newstart Allowance in respect of the days
before commencement and as a claim for Jobseeker Payment for those days falling
on or after commencement.
Schedule 2—Cessation of Widow B Pension
Quick guide to Schedule 2
Widow B Pension is a payment for certain older widows who
have lost the financial support of their partner, have limited means of
support and who do not otherwise qualify for parenting payment. Widow B
Pensions were closed to new applicants on 20 March 1997.
The amendments in Schedule 2 effectively close down Widow
B Pensions.
|
Commencement
The amendments in Schedule 2 to the Bill commence on 20
March 2020.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 2 is an expense of $0.1 million.[17]
Changes to
eligibility
The changes to eligibility for Widow B Pension are set out
in the table below.[18]
Table 1:
Widow B Pension
|
Current: Widow B Pension
|
Moving to: Age Pension (AP)
|
Eligibility |
Single widow, deserted wife, divorced wife or husband in
prison without dependent children aged fifty or more in 1987 (some exceptions
apply). No new grants since 1997. |
Aged 65 years or more. Widow B pensioners are automatically eligible
residentially to receive AP once they reach age pension age. |
Rate |
Pension rate |
Pension rate |
Activity requirements |
None |
None |
Phase out and transition |
Payments cease from 20 March 2020. |
Automatic transfer to AP. Proportional portability rules
will be adjusted so that no reduction in payment rate occurs. |
Numbers |
376 of whom 358 live outside Australia (December 2016).
All are aged over 65. |
|
Comment |
The main issue for those transferring to AP is the
workings of the proportional portability rules. Without transitional
arrangements for this group some would not qualify for AP or would receive
reduced payments. However, the transitional arrangements ensure that nobody
will have their payment reduced as they transition to AP. |
Key
provisions
Item 15 of Schedule 2 to the Bill repeals Part 2.8
of the SS Act which sets out the qualifications for, and payability of,
Widow B Pension. Item 16 repeals Division 3 of Part 2.13A of the SS
Act which currently allows for an Education Entry Payment to be made to a
person receiving Widow B Pension. Items 18 and 20 of Schedule 2 repeal
sections 778A and 778 as well as paragraph 796(1)(e) respectively which relate
to the qualification and payability of a special needs Widow B Pension.
Item 32 repeals Part 3.4 of the SS Act being
Pension Rate Calculator C which relates to Widow B Pension.
Item 14 inserts proposed subsection 43(4) into
the SS Act so that women receiving special needs Widow B Pension
immediately before 20 March 2020 will automatically qualify for the Age
Pension.
Where a pensioner has been absent from Australia for 26
weeks the rate of pension payable is subject to proportionality. It usually
means that the pension rate overseas is based on the pensioner’s Australian
Working Life Residence.[19]
Items 61–63 make adjustments to the proportional portability provisions in
section 1220A of the SS Act so that Widow B Pensioners transferring to
Age Pension will continue to receive the same rate of payment. In addition, item
64 of Schedule 2 to the Bill inserts proposed section 1221-A3 into
the SS Act to treat the Australian working life residence of a former
Widow B Pensioner as equal to that of her partner prior to his death. The
effect of this provision is that the rate of payment will remain unchanged at
the time of transition to Age Pension.
Schedule 3—Cessation
of Wife Pension
Quick guide to Schedule 3
Wife pension is a non-activity tested income support
payment paid at Age Pension rates to female partners of Age Pensioners or
Disability Support Pensioners who are not eligible for a pension in their own
right.
The amendments in Schedule 3 operate to cease the payment
entirely. Transitional amendments will allow women who cease receiving Wife
Pension to receive an alternative payment, where available.
|
Commencement
The amendments in Schedule 3 to the Bill commence
immediately after those in Schedule 2.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 3 is an expense of $6.3 million.[20]
Changes to
eligibility
The changes to eligibility for Wife Pension are set out in
the table below.[21]
Table 2:
Wife Pension
|
Current: Wife Pension
|
Moving to: Jobseeker Payment, Age Pension (AP),
Carer Payment (CP) or losing payment
|
Eligibility |
Be a partner of an Age or Disability Support Pensioner. No
new grants since 1 July 1995. |
Age Pension: be of age pension age. Carer Payment: caring for a disabled person. Jobseeker Payment: mutual obligation requirements
appropriate to age. |
Rate |
Pension rate |
AP and CP are paid at the same pension rate as WP. Jobseeker Payment will be paid after the transition period
at the Newstart rate. |
Activity requirements |
None |
Age Pension: none. Carer Payment: caring for a disabled partner. Jobseeker Payment: mutual obligation requirements. |
Phase out and transition |
Payments cease from 20 March 2020. |
Jobseeker Payment: will receive a transition rate equal to
their WP rate on 19 March 2020 plus any supplements. Pension assets free
areas and income test will continue to apply. Once the Jobseeker means test
provides a higher rate their transitional arrangements will cease. If they
cease to be a partner of a pensioner their transition will also cease. Pensioner
Concession Cards will be available during the transition period. Age Pension or Carer Payment: will transfer under the same
rate structure and means test as applied to Wife Pension. |
Numbers |
December 2016 5,490 partners of Age Pensioners 5,326 partners of Disability Support Pensioners |
20 March 2020 (estimated) Jobseeker Payment (2,900) Age Pension (AP)(2,250) Carer Payment (CP)(2,400) or No payment (200) |
Comment |
Those transferring to Jobseeker Payment (JP) will not have
their payments reduced but will have them frozen until they are entitled to
more under the JP means test. So over time the value of their payment will be
eroded in the absence of indexation. Those transferring to AP or CP will be going to a payment
that has the same rate and means test as their present payment. A small group of about 200 who live overseas will receive
no payments because they will be too young for AP, will not qualify as
carers, and will be ineligible for Jobseeker payment because it is generally
not paid outside of Australia.[22] |
Key
provisions
Transfer to
pension
Section 43 of the SS Act provides that, generally,
a person is qualified for an age pension if the person has reached pension age
and the person has 10 years’ qualifying Australian residence. Item 18 inserts
proposed subsection 43(1A) into the SS Act to ensure that Wife
Pensioners of age pension age can transfer to Age Pension after 20 March 2020
even if they do not satisfy the Age pension residence rules.
Item 19 repeals Part 2.4 which sets out the qualification
for and payability of Wife Pension. Items 77–92 make consequential
changes to the SSA Act as a result of this repeal.
Transfer to
carer payment
Part 2.5 of the SS Act sets out the qualification
for, and payability of, carer payment. Item 21 inserts proposed section
198AD into Part 2.5 so that those Wife Pensioners receiving a Carer
Allowance immediately before 20 March 2017 will automatically transfer to Carer
Payment after that date.
Transfer to
jobseeker payment
Item 25 inserts proposed sections 654–656 into
the SS Act. These sections contain the transitional rate calculation
rules to apply to Wife Pensioners who are transitioning to Jobseeker Payment.
Income and asset test arrangements are modified during the transition period to
ensure that there is no rate reduction for this group due to the more
restrictive income and assets test that will apply to the Jobseeker Payment.
The rate for former Wife Pensioners is effectively frozen until indexation
pushes the rate of Jobseeker Payment under the normal rules above the frozen
pension rate of the former Wife Pensioner.
Item 38 inserts proposed subsection 1061ZA(2E)
into the SS Act to provide continued access to the pensioner concession
card for former Wife Pensioners while they receive a transitional rate of
payment.
Item 71 inserts proposed subsection 1220A(5)
into the SS Act which preserves existing exemptions for former Wife
Pensioners transferring to Age Pension from the proportional portability rules.
This ensures that they will not suffer a rate reduction due to their transfer
to Age Pension.
Item 72 inserts proposed point 1221-A4 into
the Pension Portability Rate Calculator. The proposed point preserves the
treatment of former Wife Pensioners who have their Australian Working Life
Residence increased to that of their partner. When they transfer to Age pension
they will not suffer a rate reduction.
Schedule 4—Cessation
of Bereavement Allowance
Quick guide to Schedule 4
The amendments in Schedule 4 operate so that a person who
is qualified for Youth Allowance or Jobseeker Payment will be able to receive
a one-off, higher payment if their partner dies, in addition to their regular
fortnightly payments.
In addition newly bereaved claimants for Youth Allowance
or Jobseeker Payment will be entitled to certain exemptions from existing
waiting period requirements.
|
Commencement
The amendments in Schedule 4 to the Bill commence on 20
March 2010.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 4 is a saving of $1.04 million.[23]
Changes to
eligibility
There has been a separate short term payment for married
and de facto widows without dependent children since 1942 when a range of widow
pensions were introduced. The name of the payment has changed from time to time
and from 1989 eligibility was extended to all widowed people of either gender.
From 1943 there was also a lump sum funeral payment to
assist with the funeral costs of age and invalid pensioners. This was extended
in 1965 to cover funerals of dependent children, widow pensioners and
non-pension spouses of pensioners. From 1990 a variety of provisions under the
heading of bereavement payments replaced funeral payments and were extended
over time to most income support recipients bereaved by the loss of a partner,
the person they were caring for or a dependent child.[24]
The Bill replaces the separate Bereavement Allowance and
substitutes a one off fortnightly payment of triple the usual rate of Youth
Allowance or Jobseeker Payment along with a 14-week exemption from activity
test requirements. A summary is provided in the table below.[25]
Table 3:
Bereavement Allowance
|
Current: Bereavement Allowance |
Changing to: A one-off higher payment of either Youth
Allowance (YA) or Jobseeker Allowance (JP) |
Eligibility |
For a partner of a person who died during the first 14
weeks after the death |
Must claim within 14 weeks of the death. |
Rate |
Pension rate |
Equivalent to triple the usual rate of payment for one
fortnight. Can be a single payment to a person who is not already receiving
YA of JP, or an additional double payment on top of the normal rate for an
existing recipient of YA or JP. |
Activity requirements |
none |
None for new claimants and existing income support
recipients for a 14-week period. Also exempt from a number of waiting periods
if a new claimant. |
Phase out |
Payments cease from 20 March 2020 |
|
Comment |
The 14-week entitlement period for this Bereavement
Allowance means that no one needs to transfer to a new payment. Consequently
there are no transitional issues for individuals. However, the amount paid to
a bereaved person over a 14-week period will be about twenty percent less
than is presently paid under the Bereavement Allowance. |
Policy
position of non-government parties/independents
The ALP has indicated that they cannot support the
amendments in Schedule 4 which abolishes the Bereavement Allowance.[26]
Key
provisions
Item 10 repeals Part 2.7 of the SS Act which
sets out the qualifications for, and the payability of, Bereavement Allowance.
Effect on Parenting Payment
Item 13 inserts proposed section 502BA into
Part 2.10 of the SS Act which relates to Parenting Payment. The
amendment creates a 14-week exemption from the participation requirements for
Parenting Payment claimants and existing recipients after the death of their
partner.
Effect on Youth Allowance
Item 15 inserts proposed section 542EA which
provides for a 14-week death-of-partner exemption from the Youth Allowance
activity test.
Items 18–and 20 insert proposed subsections
549A(7) and 549CA(5) into the SS Act to provide a 14-week
exemption from the liquid assets waiting period and the ordinary waiting period
respectively for new claimants of Youth Allowance after the death of a partner.
Item 21 inserts proposed subsection 553C(6) which has the effect
of exempting a new claimant for Youth Allowance from the seasonal worker
exclusion period in the event of the death of a partner.
Item 39 inserts proposed Subdivision AA—One off
payment for death of partner into Division 10 of Part 2.11 of the SS Act.
The proposed subdivision provides for one off payments for Youth Allowance
recipients and claimants whose partner has died. Proposed section 567FB
sets out the formula for working out the amount of the lump sum to be paid. The
payment will be equivalent to two fortnights’ payment of Youth Allowance and
will be paid in addition to normal entitlements.
Effect on Jobseeker Payment
Items 41—50 provide for exemptions from various
waiting periods and activity test requirements for proposed claimants and
recipients of Jobseeker Payment after the death of a partner. A 14-week
exemption from the activity test requirements is set out in proposed section
602AA.
Item 54 inserts proposed Subdivision A—One off
payment for death of partner into Division 9 of Part 2.12 of the SS Act.
The proposed subdivision provides for one off payments for Jobseeker Payment
recipients and claimants whose partner has died. The lump sum will be
equivalent to twice the normal payment of Jobseeker Payment and will be paid in
addition to normal entitlements.
Item 55 inserts proposed section 731DAA into
the SS Act to provide relief from the activity test for 14 weeks for a
claimant of special benefit upon the death of a partner.
Schedule
5—Cessation of Sickness Allowance
Quick guide to Schedule 5
Sickness Allowance is a short term income support payment
for working age people who have a temporary incapacity for work due to
illness or injury and who have a job or study to return to after their
recovery.
The amendments in Schedule 5 operate so there will be no
new grants of Sickness Allowance after 20 March 2020. Instead the
qualification conditions for Jobseeker Payment are modified to allow people
who are temporarily incapacitated for work to qualify for Jobseeker Payment.
|
Commencement
The amendments in Part 1 of Schedule 5 to the Bill
commence on 20 March 2020. The amendments in Part 2 of Schedule 5 to the Bill
commence on 20 September 2020.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 5 is a saving of $6.9 million.[27]
Changes to
eligibility
A payment for working age people who were temporarily
unable to work due to illness or injury called Sickness Benefit was first introduced
in 1945 at the same time as Unemployment Benefit. After the payment was
reformed and renamed Sickness Allowance in 1991 many unemployed people with
temporary incapacity for work remained on Newstart Allowance with reduced
activity test requirements.[28]
The Bill takes this approach to its logical conclusion by
removing Sickness Allowance altogether and providing access to the new
Jobseeker Payment for all those temporarily incapacitated for work due to
illness or injury. A summary is provided in the table below.[29]
Table 4:
Sickness Allowance
|
Current: Sickness Allowance (SA) |
Moving to: Jobseeker Payment (JP) |
Eligibility |
Temporarily incapacitated for work or study, employed or a
full-time student on Austudy or Abstudy. |
Eligibility for JP with reduced activity obligations the
same as for SA. |
Rate |
Same as Newstart Allowance |
Same as Newstart Allowance |
Activity requirements |
none |
Temporarily adjusted to suit the person’s situation. |
Phase out and transition |
No new grants from 20 March 2020, no payments after 20
September 2020. |
Transfer to Jobseeker Payment with an activity requirement
exemption. |
Numbers |
7,088 (December 2016) |
8,400 est. (20 March 2020) |
Comment |
This change should make very little difference to the way
those eligible for Sickness Allowance are treated. They will receive JP but
their eligibility, entitlements and activity requirements will be much the
same. |
Key
provisions
Currently, section 593 in Part 2.12 of the SS Act
provides the qualifications for Newstart Allowance. As already stated, the
amendments in Schedule 1 to the Bill rename this as Jobseeker Payment. Item
4 of Part 1 in Schedule 5 to the Bill inserts proposed subsection
593(1A) into the SS Act to create a category of qualification for
Jobseeker Payment that covers those people who would previously have qualified
for Sickness Allowance due to temporary incapacity for work or study due to a
medical condition arising from sickness or accident.
Item 17 inserts proposed section 602D which
exempts a person who qualifies for Jobseeker Payment under new subsection
593(1A) from the requirement to satisfy the activity test where the person is
undertaking a rehabilitation program which is of at least six weeks’ duration.
Item 19 inserts proposed Division 1A—Time limit
on grants of sickness allowance into Part 2.14 of the SS Act. The
effect of proposed section 666A which is contained in the new Division,
is that Sickness Allowance must not be granted to a person unless the person
has lodged a claim before 20 March 2020. Item 21 sets out the relevant
transitional arrangements. Where a person has lodged a claim for Sickness
Allowance before 20 March 2020, but does not satisfy the qualification or
payability conditions for Sickness Allowance before that date because a waiting
period applies—then the person is taken to have claimed Jobseeker Payment on 20
March 2020 and any equivalent waiting period for Jobseeker Payment is taken to
have started when the waiting period for Sickness Allowance started.
Item 71 in Part 2 of Schedule 5 to the Bill repeals
Part 2.14 which sets out the qualifications for and payability of Sickness
Allowance. Items 92–106 make consequential amendments to section 1068
and Benefit Rate Calculator B to reflect the repeal of Part 2.14.
Schedule 6—Cessation
of Widow Allowance
Quick guide to Schedule 6
Widow Allowance provides income support for older working
age women who lose the support of a partner and face barriers to employment.
The amendments in Schedule 6 close Widow Allowance to new entrants from 1
January 2018 and cease the payment entirely from 1 January 2022.
All women in receipt of Widow Allowance immediately before
1 January 2022, or who could have qualified for Widow Allowance had they
claimed it prior to 1 January 2018 will be of pension age by 1 January 2022.
|
Commencement
The amendments in Part 1 of Schedule 6 to the Bill
commence on the later of 1 January 2018 and Royal Assent. The amendments in
Part 2 of Schedule 6 to the Bill commence on 1 January 2022.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 6 is an expense of $4.5 million.[30]
Changes to
eligibility
An overview of the changes relating to Widow Allowance is
set out in the table below.[31]
Table 5:
Widow Allowance
|
Current: Widow Allowance (WA) |
Moving to: Newstart Allowance (NSA) or Age Pension
(AP) |
Eligibility |
Born before 1 July 1955, not partnered and widowed,
divorced or separated since turning 40, with no recent workforce experience. |
Unemployed and previously eligible for WA. |
Rate |
Same as Newstart Allowance |
Same as Newstart Allowance |
Activity requirements |
none |
none |
Phase out and transition |
No new entrants from 1 January 2018. Payments cease from 1 January 2022 |
After 1 January 2018 any new applicants will be eligible
for NSA without activity test requirements or AP. Those not residentially
qualified for AP will receive Special Benefit. Recipients of WA at 1 January
2022 will have the residential requirements for AP modified as part of the
transition. |
Numbers |
16,563 (December 2016) |
|
Comment |
Most present recipients will be of AP age in 2022. Any who
are not will not have activity requirement imposed and can receive Special
benefit until they qualify for AP. |
Key
provisions
Item 2 of Part 1 in Schedule 6 to the Bill inserts proposed
subsections 408AA(2) and (3) into the SS Act to ensure that Widow
Allowance must not be granted to a woman unless a claim is lodged before 1
January 2018.
Item 3 inserts proposed section 603AC into
Part 2.12 so that women who would previously qualified for Widow Allowance are exempt
from the activity test for Newstart Allowance.
Items 9–15 make a number of consequential
amendments to remove references to Widow Allowance from various provisions of
the SS Act.
Item 17 in Part 2 of Schedule 6 to the Bill repeals
Part 2.8A which provides the qualification for and payability of Widow
Allowance with effect from 1 January 2022.
Item 16 inserts proposed subsection 43(1C) into
the SS Act to provide for automatic qualification for the Age Pension
for Widow Allowance recipients immediately before 1 January 2022.
Schedule 7—Cessation
of Partner Allowance
Quick guide to Schedule 7
Partner Allowance is a non-activity tested income support
payment for older partners of income support recipients, who face barriers to
finding employment because of their previous limited participation in the
workforce.
Partner Allowance has been closed to new applicants since
20 September 2003. However, the amendments in Schedule 7 will cease the
payment entirely from 1 January 2022. By the time this measure takes effect
on 1 January 2022 or persons in receipt of Partner Allowance immediately
before that date will be of pension age.
|
Commencement
The provisions in Schedule 7 to the Bill commence on 1
January 2022.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 7 is an expense of $1.08 million.[32]
Changes to
eligibility
An overview of the changes relating to Partner Allowance is
set out in the table below.[33]
Table 6:
Partner Allowance
|
Current: Partner Allowance (PA) |
Moving to: Age Pension (AP) |
Eligibility |
Born before 1 July 1955, partnered, with no recent
workforce experience. No new grants since 20 September 2003. |
Unemployed and previously eligible for WA. |
Rate |
Allowance Rate |
Pension rate |
Activity requirements |
none |
none |
Phase out and transition |
Payments cease from 1 January 2022 |
All recipients will be of AP age by 1 January 2022 |
Numbers |
3,230 (December 2016) |
|
Key provisions
Item 21 repeals Part 2.15A of the SS Act
which sets out the qualification for, and payability of Partner Allowance.
Schedule 7 contains consequential amendments as a result
of the repeal of Part 2.15A to remove redundant references to Partner Allowance
or Partner Bereavement Payment.
In addition, items 64–66 make consequential
amendment to the SSA Act to remove references to Partner Allowance as a
result of the repeal of Part 2.15A.
Schedule 8—Minister’s
rules
Quick guide to Schedule 8
The amendments in Schedule 8 are intended to allow the
Minister to make rules of a transitional nature in support of the amendments
and repeals made by Schedules 1–7 of the Bill.
|
Commencement
The amendments in Schedule 8 to the Bill commence on the
day after Royal Assent.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 8 is nil.[34]
Key
provisions
Item 1 of Schedule 8 to the Bill empowers the
Minister to make rules, by legislative instrument, prescribing matters of a
transitional nature including prescribing any saving or application provisions.
Under section 38 of the Legislation Act
2003, legislative instruments must be tabled in each House within six
sitting days following registration on the Federal Register of Legislation. A
legislative instrument can be subject to disallowance if either a Senator or
Member of the House of Representatives moves a motion of disallowance within 15
sitting days of the day that the legislative instrument is tabled.
Schedule 9—Changes
to activity tests for persons aged 55–59
Quick
guide to Schedule 9
The amendments in Schedule 9 impose a new activity test on
Newstart Allowance and certain Special Benefit recipients aged between 55 and
59.
Under the new test the relevant recipients will satisfy
the activity test if they are engaged, for at least 30 hours per
fortnight, in a combination of approved unpaid voluntary work or suitable
paid work, at least 15 hours of which must be suitable paid work.
|
Commencement
The amendments in Schedule 9 to the Bill commence on 20
September 2018.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 9 is an expense of $47.8 million.[35]
Background
Since 1990, older unemployed people have had reduced
activity test requirements compared to younger people. These requirements have
changed from time to time but have generally encouraged part time and voluntary
work as a means of satisfying activity test requirements.
The current situation for those aged 55 years or more
dates back to the Howard Government Welfare to Work reforms of 2006.[36]
The Bill proposes to change the present requirements which
allow ‘job seekers aged over 55 years to satisfy their mutual obligation
requirements by undertaking at least 30 hours per fortnight of approved
voluntary work, paid work (including self-employment) or a combination of the 2’.[37]
Voluntary work has to be with an approved, not for profit, community based
organisation which has adequate insurance. People who satisfy their
requirements in this way ‘must still be available for suitable paid work and
must accept all referrals to job interviews’.[38]
The changed requirement for job seekers aged between 55
and 59 years old will be that at least 15 hours per fortnight must be made up
of paid work. Voluntary work alone will no longer be sufficient. The change
will apply to Newstart Allowance recipients and Special benefit recipients who
are subject to activity test requirements.
It is not proposed to make any change for those aged 60
years or more.
The rationale for this change is ‘to strengthen the
employment focus of mutual obligation requirements, and better connect mature
age job seekers aged 55–59 with the labour market, while still recognising that
volunteering can be a valuable stepping stone into paid work’.[39]
Key Provisions
Item 1 inserts proposed subsection 603AA(1A)
into the SS Act. This provides for a new category of people aged 55 to
59 years who can satisfy the activity test if engaged in at least 30 hours per
fortnight of a combination of approved unpaid voluntary work and suitable paid
work. At least 15 hours must be suitable paid work.
Item 8 inserts proposed subsection 731G(1A) into
the SS Act to apply the changed activity test to Special Benefit
recipients. Item 11 inserts a definition of approved unpaid
voluntary work into existing subsection 731G(4) being either full-time
or otherwise, is that has been approved by the Secretary for the purposes of
that section.
Item 12 repeals the existing definition of approved
voluntary unpaid work.
Schedule 10—Start day for some participation payments
Quick guide to Schedule 10
The measures in Schedule 10 to the Bill provide for the
start day for Youth Allowance (other) and Newstart Allowance payments to be
the day the applicant attends their initial appointment with their employment
services provider (unless an appointment is not able to be scheduled within
two business days), rather than the date on which the claim for payment was
made.
|
Commencement
The amendments in Schedule 10 to the Bill commence on the
later of 1 January 2018 and the day after Royal Assent.
Financial implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 10 is savings of $198.0 million.[40]
RapidConnect
RapidConnect arrangements formed a part of the Welfare to
Work measures that were introduced by the Howard Government in 2006.[41]
Before their introduction, unemployed job seekers making a claim for income
support could wait as long as three or four weeks before being registered with
an employment services provider.[42]
During this time, they received no formal assistance in preparing for, or
finding, paid employment.
As its name implies, the RapidConnect process requires job
seekers to register with an employment services provider and sign up to an
employment pathway plan as soon as possible in the income support claim
process. The idea behind this general approach is that connecting
a job seeker with their employment services provider and making them actively
seek work as quickly as possible both improves their prospects of finding a job
quickly and does not give them a chance to become dependent on welfare.
The RapidConnect process
Under the RapidConnect process a person who intends to
make a claim for, or to transfer to, Newstart Allowance or Youth Allowance
(other) is required to attend an interview with their employment services
provider within two working days of their initial contact with the Department
of Human Services (DHS) in order to receive their first income support payment.[43]
There are some exemptions from the RapidConnect requirements. These are in
circumstances where it has been determined that it would be inappropriate for
income support claimants to be referred immediately to their employment
services provider and the work force, due to their being disadvantaged.[44]
Under the current jobactive employment services
contract, employment service providers are obliged to ensure that they have
initial sessions available in the Department of Employment’s IT systems so that
the DHS can book appointments within two business days.[45]
If an appointment cannot be booked to occur within two
business days, the job seeker remains subject to the RapidConnect process for
up to 14 calendar days. As such, the income support payment does not become
payable until the job seeker has connected with an employment services provider
within 14 days.
So long as the job seeker attends an initial appointment
with their employment services provider within 14 days of initial contact then,
subject to their meeting other qualification and payability requirements, they
have their income support payment backdated to the date of their initial
contact—that is, the day on which they made their claim for income support.
Hence, the job seeker is not penalised for those instances
in which no provider appointment is available within two business days.
Further, the job seeker is not penalised for their own
failure to attend their initial appointment—even though this might be on a
number of occasions—providing they ultimately attend within 14 days of initial
contact with the DHS. It is this leeway for job seekers that the Government
seeks to eliminate with the proposed amendments in this schedule.
The new measures
The amendments in Schedule 10 of the Bill provide that job
seekers are still not penalised where an employment services provider
appointment is not available within two business days. In this case, upon
attending their initial appointment, job seekers will have their payment
backdated to the date on which the requirement to attend an interview was
imposed.
However, where a job seeker fails to attend the initial
appointment more than two business days after the requirement is imposed, or
fails to attend without a reasonable excuse, their payment will not be payable
until they attend the appointment; that is, they will not receive any back pay.
The amendments implement the Work-First: Faster Connection
with Employment Service Providers initiative which formed part of the broader
Better Targeting of Assistance to Support Jobseekers measure, announced in the
2017–18 Budget.[46]
Key issues and provisions
Schedule 2 of the SSA Act sets out the rules for
working out the start day for income support payments. Subclause
3(1) in Schedule 2 to that Act specifies that, so long as a person is qualified
for a payment on the day on which a claim is made, the person’s start day is
the day on which the claim is made.
Item 1 adds a note to the end of the subclause to
specify that proposed clause 4A (as discussed below) is to apply for
claims for Newstart Allowance and Youth Allowance in certain circumstances.
Proposed clause 4A is inserted into the SSA Act by
item 2 of Schedule 10 to the Bill. It provides that if the Secretary
gives the job seeker a notice under section 63 of the SS Act requiring
the job seeker to attend a particular place for an interview on a day specified
in the notice then clause 4A is to apply and subclause 3(1) does not.[47]
Proposed subclause 4A(4) sets out the start day for income support
payment as follows:
- if
the job seeker attends their initial appointment within two business days of
the requirement being imposed, their start day is the day specified in the
requirement
- if
the job seeker does not attend their initial appointment within two business
days, without having requested that the appointment be shifted to a later day,
then the start day is the day that the requirement to attend the appointment
was imposed
- if
the job seeker attends their initial appointment after more than two business
days but has gained approval to do so, then their payment start day is the day
specified in the changed requirement.
Proposed subclause 4A(5) provides that if the job
seeker fails to attend their initial appointment, then their payment may not be
payable under the provisions of the SS Act (section 547AA for Youth
Allowance (other) applicants and section 615 for Newstart Allowance applicants)
until they comply with the requirement.
If the Secretary determines that the job seeker had a
reasonable excuse for their failure to attend their initial appointment then
the job seeker’s start day is the day on which the requirement to attend the
appointment was imposed. As such, the job seeker receives back pay where they
have a reasonable excuse for non-attendance.
Stakeholder comment
This measure will undoubtedly achieve its stated objective
of encouraging job seekers to connect more quickly with employment services
providers. It will also result in reasonably substantial savings to government,
largely as a result of job seekers’ payments being made from a later date than
is currently the case.
The proposed measure may exacerbate existing concerns in
the community services and welfare sector about the potential for RapidConnect
arrangements to contribute to job seekers’ financial hardship. In the past,
RapidConnect has been criticised on the grounds that it requires certain job
seekers to fulfil various requirements before they have received any money. Without
any money to cover expenses like transport costs, it has been argued that it
may be difficult for job seekers to meet these requirements:
NWRN [National Welfare Rights Network] has recommended on
many occasions that the claiming and obtaining of income support should be
separated from the process of even explaining, let alone demanding, activity
and other requirements. This is to allow people an opportunity to have the
resources to comply with requirements, and allow time to fully comprehend what
future requirements will be. Many people when claiming Newstart Allowance have
no income and minimal or no savings. The most important thing at that time is
to secure an ongoing source of income. This can be an extremely stressful time
for people and adding activity requirements before payment is made makes it
more so. It is often difficult for people in this time to fully comprehend what
they are agreeing to do but rather than own up to this, the person will sign any
document required for payments to commence. In our opinion future compliance
with requirements is much more likely if a person agrees to those requirements
once they know payment has been granted and the immediate need for income
support has been met.[48]
Schedule 11—Removal of Intent
to Claim provisions
Quick
guide to Schedule 11
Schedule 11 amends the SSA Act by removing the
current deemed claim provisions that allow a claimant to receive payments
from the date on which they initially contacted the Department of Human
Services.
The rationale for the amendments is that the deeming
provisions were introduced at a time when claim forms were mailed to
claimants, completed and then returned to Centrelink by mail. With the
progressive rollout of online claiming, these provisions are no longer
necessary.[49]
|
Commencement
If the Social Services Legislation Amendment (Welfare
Reform) Act 2017 receives Royal Assent before
1 November 2017—then the amendments in Schedule 11 to the Bill commence on 1
January 2018. Otherwise, the amendments commence on the first 1 April, 1 July,
1 October or 1 January that occurs at the end of two months after Royal Assent.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 11 is savings of $68.0 million.[50]
Background
In general, the start date for the payment of a social
security payment is the date that the claim for the payment was submitted.
However, section 13 of the SSA Act allows the date when a claimant first
contacted Centrelink about making a claim to be treated as the start day for
payment provided certain conditions are met. Those conditions are:
- Centrelink must be contacted by, or on behalf of a
person in relation to a claim
- the person must be qualified on the date of the
contact
- generally, the person must lodge a claim within 14
days of the contact
-
if the person, or a person they care for, or their
partner is suffering from a medical condition having a significant adverse
effect on the person's ability to lodge the claim, it may be lodged within 13
weeks after the contact provided the medical condition was continuous or
- if special circumstances apply to the person's
situation, which make it not reasonably practicable for the person to lodge the
claim earlier, it may be lodged within 13 weeks after the contact and
- Centrelink must give the person a written notice
acknowledging the contact.[51]
This provision is of most assistance to people who may
find it difficult to quickly gather the necessary documents required to make a
claim.
The Bill proposes to repeal the sections which allow the
date of contact to be the start day for payment.
Policy position of non-government
parties/independents
The ALP has indicated that they cannot support the changes
in this Schedule.[52]
Position of major interest
groups
The National Social Security Rights Network opposes the
changes in this schedule for the following reasons:
Making this requirement more stringent would further
disadvantage the most vulnerable claimants by delaying the date from which
their payments begin. Social security claim forms are generally long and complex
and a significant amount of supporting documentation may also be required
(identification documents, payslips, separation certificate from the person’s
last job, documentation relating to their partner and so on).
Many of these documents, such as identification documents,
may be regarded as in a person’s control. However, it may be difficult for
vulnerable people to collect them all quickly. This can be for a range of
reasons. Someone who has recently separated from their partner may have their possessions
boxed up or spread across friends and family’s homes. New migrants may have
difficulty understanding what is required. A single parent may be struggling
with the demands of a new baby.[53]
ACOSS opposes the changes because:
This measure risks putting people in desperate situations,
including remaining in domestic violence situations.[54]
Carers Australia also oppose the change for similar
reasons:
The overall changes in the life circumstances of new carers
can include obstacles to lodging a claim online immediately after establishing
their entitlement with Centrelink. For example, they may be moving house,
possibly to another state, to care for an elderly parent diagnosed with dementia
or another degenerative disease; or they may be the partner or parent of
someone who has suddenly acquired a serious disability or illness or who has
been diagnosed with a terminal illness.[55]
Key
Provisions
Item 5 repeals sections 13 and 14 of the SSA
Act which contain the deemed claim provisions. Item 7 is a saving
provision which operates so that contacts made with DHS prior to the date of
commencement of the amendments are not affected.
Schedule
12—Establishment of a drug testing trial
Quick guide to Schedule 12
The measures in Schedule 12 to the Bill provide for a two-year
trial in three regions involving mandatory drug testing for 5,000 new
recipients of Newstart Allowance and Youth Allowance (other).
|
Commencement
The amendments in Schedule 12 to the Bill commence on 1
January 2018 if Royal Assent is before that date. Otherwise the amendments
commence on the first 1 January, 1 April, 1 July or 1 October to occur after
the end of the period of two months beginning on Royal Assent.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 12 is ‘not for publication’.[56]
Background
Drug testing has been part of the international welfare
reform debate since the 1990s. Supporters have argued that drug testing has a
number of benefits including preventing the misuse of taxpayer’s money, sending
a message that drug use is unacceptable, ensuring recipients are ready for
work, saving money, and promoting recipient well-being. However, in many cases,
policymakers do not make their goals explicit.
Proposals for drug testing income support recipients have
been debated in Australia, Canada and the United Kingdom.[57]
A number of American state governments have introduced drug testing schemes and
the New Zealand Government has a policy that supports pre-employment drug
testing by employers and training providers.[58]
According to a 2016 paper by the Congressional Research
Service, there is little evidence about the effectiveness of drug testing
measures in the United States. Part of the problem is a lack of clarity about what
policymakers are trying to achieve.[59]
The objectives could include restricting payments to those deemed worthy of
support, punishing individuals for engaging in undesirable behaviour or
deterring people from engaging in illicit drug use.[60]
The recent debate in the United Kingdom is the most
relevant to Australia. As in Australia, United Kingdom policymakers justified
drug testing measures in terms of helping income support recipients move into
employment. The United Kingdom experience is discussed in more detail below.
Principled
versus pragmatic considerations
Many of the arguments for and against drug testing and
compulsory treatment draw on ethical principles. For example, Katherine Bradley
and Robert Rector of the Heritage Foundation argue:
Taxpayers should provide support to those in need, and
recipients in return should engage in responsible and constructive behaviour as
a condition of receiving aid. Requiring welfare recipients to stop using
illegal drugs is a core element of reciprocal obligation.[61]
Other ethical principles include human rights such as the
right to privacy.
As well as considerations of principle, there are
pragmatic considerations. These have to do with providers’ ability to implement
the measures successfully and how effective the measures are at achieving
objectives such as moving income support recipients from welfare to work.
Both internationally and in Australia, supporters of drug
testing and compulsory treatment have relied heavily on ethical arguments about
mutual obligation while medical professionals and drug treatment providers have
relied on arguments based on human rights and pragmatic considerations.
According to evidence given during Senate Estimates
hearings, the Department of Social Services did not consult organisations representing
medical professionals or drug treatment providers about the measure prior to
its announcement in the 2016–16 Budget.[62]
Earlier
Australian proposals
During the 2007 election campaign the Coalition announced
that, if the Government was re-elected, income support recipients convicted of
criminal drug offences involving hard drugs would be placed on income
management.[63]
Then Prime Minister John Howard said: ‘we take the view that it’s not right
that people should have control of taxpayer money when they have been convicted
of such offences’.[64]
The policy was not part of the Coalition’s 2013 election campaign.
In 2012 Liberal National Party MP George Christensen (Member
for Dawson) proposed that income support payments for the unemployed should be conditional
on passing a drugs test.[65]
However, Kevin Andrews, then Shadow Minister for Families, Housing and Human
Services, made it clear that this was not Coalition policy.[66]
In 2013 the Australian National Council on Drugs (ANCD)
published a position paper on drug testing. The paper concluded:
There is no evidence that drug testing welfare beneficiaries
will have any positive effects for those individuals or for society, and some
evidence indicating such a practice could have high social and economic costs.
In addition, there would be serious ethical and legal problems in implementing
such a program in Australia. Drug testing of welfare beneficiaries ought not be
considered.[67]
The issue resurfaced in 2014 after the release of the Interim
Report of the Reference Group on Welfare Reform (the McClure Report). The
interim report referred to pre-employment drug testing requirements for
jobseekers in New Zealand and there was speculation in the media that the
Australian Government was considering introducing a similar measure.[68]
While then Minister for Social Services, Kevin Andrews, appeared reluctant to
completely rule the measure out he said that the Government was unlikely to go
ahead with it.[69]
In November 2015 Senator Jacqui Lambie asked the
Attorney-General, Senator George Brandis if the Government would support
testing income support recipients for illicit drugs. The Attorney-General responded
that ‘the government has no present intention to legislate in that respect’.[70]
United
Kingdom experience
In the United Kingdom policymakers have considered similar
measures to those proposed in this Bill. In 2009 the Brown Labour Government
legislated to include drug testing as part of a broader plan to identify
problem drug users and require them to accept treatment.[71]
While there was some support in the media for a tougher approach to drug users,
the proposal was harshly criticised by the Government’s Social Security
Advisory Committee and others.[72]
The measures were later abandoned by the Cameron Coalition Government and the drug
testing requirements were removed from legislation.[73]
Welfare
reform proposals
In 2008 the Brown Government’s released a green paper on
welfare reform: No one written off: reforming welfare to reward
responsibility. The green paper stated: ‘Taxpayers cannot be expected to
support a drug-dependent lifestyle, so where drug treatment is available and
considered appropriate, then there should be an obligation that individuals
will take it up’.[74]
It suggested requiring benefit applicants to declare whether they are addicted
to heroin or crack cocaine and backing this up by using information sharing
with police and contracted-out drug testing (in a small number of cases) to
identify those making misleading statements.[75]
The Social Security Advisory Committee criticised the
Government’s proposals, particularly the proposal to make income support
conditional on accepting drug treatment:
We find the proposals in relation to those citizens who
suffer from addiction to crack cocaine and opiates to be unconvincing,
simplistic, and to present a number of issues that demand much more thought
before they are taken further. The abuse of illegal drugs – just as with
alcohol abuse – can be a major barrier to entering, and staying in, employment.
However, we find little to commend the Government’s proposed approach. It is
our understanding that all the evidence points to drug rehabilitation
programmes being most effective when the client actively wishes to engage in
treatment.[76]
The proposals also attracted strong criticism from
organisations involved in drug treatment. For example, DrugScope, an
organisation representing treatment providers, suggested that ‘compulsion and
threats of benefit sanctions could do more harm than good, risking further
marginalisation’.[77]
While the Government acknowledged that some groups had
concerns, it decided to push ahead with the plan. In its white paper Raising
Expectations and Increasing Support: Reforming Welfare for the Future the
Government outlined a new regime for problem drug users. Income support
recipients identified as problem drug users would be referred to a healthcare professional
who would determine whether they should be referred to a program of support.
The Government indicated that it was ‘exploring whether drug testing has a role
to play in respect of claimants who fail to engage’.[78]
While on the program, recipients would be required to agree to a rehabilitation
plan and ‘make real efforts to make progress against it. If they fail to do so,
without good cause, they will be subject to sanctions’.[79]
The Government planned to pilot and evaluate these measures before any national
rollout.[80]
Welfare
Reform Act 2009
The Brown Labour Government introduced provisions to
support this new regime for problem drug users in the Welfare
Reform Bill 2009. According to legal academic Emma Wincup:
The ‘new regime’ for [problem drug users] was met with
relatively little opposition in the early stages, sending out a powerful
message that drug testing and the use of quasi-compulsory drug treatment for this
group had become palatable to all political parties. It also provides evidence
of a new cross-party ‘welfare settlement’ surrounding welfare-to-work policies,
characterised by a common moralist or behavioural approach.[81]
Drug sector organisations and the organisations
representing the medical profession continued to oppose the measures. For
example, DrugScope argued:
Drug testing should not be introduced into the benefit
system. It is an invasive procedure. A drug test can only reveal that a
particular substance is present in somebody's body at a particular time. This
means, for example, that test results can be identical for someone with a
serious crack cocaine dependency and for a first time participant.
The Royal College of Psychiatrists supported DrugScope’s position
and argued that sanctions may not improve compliance with treatment, could
drive people deeper into poverty, and may undermine the relationship between
clinicians and clients.[82]
According to Emma Wincup, a widely shared objection to drug
testing was that it could breach Article 8 of the European Convention
of Human Rights.[83]
Article 8 provides a qualified right to privacy. Drug testing and compulsory
medical treatment fall under the cope of this article.[84]
The Joint Committee of Human Rights of the UK Parliament took
the view that the Government had not provided evidence to support its position
that the interference with individual rights was necessary and ‘that evidence to
support the Government’s position should be sought during a pilot programme
which could pose a significant risk to individual privacy rights’. The Committee
recommended that drug testing and compulsory treatment should be removed from
the bill.[85]
Plans for a
pilot scheme
Despite concerns about drug testing and mandatory
treatment measures, the Brown Government pushed ahead with plans for a pilot
scheme. After the Welfare Reform Act 2009 was enacted, the Government
began consulting on regulations to enable a pilot scheme that included drug
testing and mandatory referral to treatment.
The Government’s Social Security Advisory Committee
continued to oppose the pilot arguing that there was little evidence that a
mandatory approach to treatment would help problem drug users move towards the
labour market. It also advised against drug testing stating:
... we believe that the introduction of drugs testing
represents a step too far in increasing conditionality. We would very much like
to see the use of mandatory drugs tests removed from the pilot.[86]
By the time the Committee’s report reached the Secretary
of State for Work and Pensions, an election had been held and the Government
had changed. After receiving the Social Security Advisory Committee’s report,
the new Cameron Coalition Government announced that it would not proceed with
the pilots.[87]
The drug testing requirements were removed from legislation in 2012.[88]
Income
management proposal
In a 2014 report, the Centre for Social Justice[89]
proposed using cashless welfare cards for income support recipients who failed
to engage with treatment:
For those with an entrenched alcohol or drug addiction who
refuse treatment, who have not been in employment for a year and who have
children, the use of welfare cash cards should be considered. Whilst this alone
will not help addicts recover, evidence from similar successful initiatives in
Australia has shown that such a scheme can protect addicts and their families
by limiting the expenditure of their benefits to basic essentials such as food,
clothing, travel etc. Beyond this, it will establish a principle that
taxpayers’ money should not go directly into the pockets of drug dealers and
may restore faith in our welfare system. We recommend piloting the scheme in
the first instance.[90]
The Centre for Social Justice supported the principles of
the Welfare Reform Act 2009 but argued that the Government would not
have been able to implement them effectively. According to report, the major
problem is that there are too few high quality abstinence-based treatment
options available to people on income support. As a result, the pilots would
have placed large numbers of problem drug users on methadone and this ‘would
simply lead to people substituting one addiction for another and, ultimately,
not help them to become clean’. The report proposed phasing in reforms as new
treatment capacity became available.[91]
The Black Review
By early 2015, the Cameron Government had broadened its
focus beyond illicit drugs to include other treatable conditions that prevent
income support recipients moving into work. These included alcohol dependency
and obesity. The Government asked Professor Dame Carol Black to undertake a
review.
In February 2015 Prime Minister David Cameron said:
Too many people are stuck on sickness benefits because of
issues that could be addressed but instead are not. Some have drug or alcohol
problems, but refuse treatment. In other cases people have problems with their
weight that could be addressed, but instead a life on benefits rather than work
becomes the choice. It is not fair to ask hardworking taxpayers to fund the
benefits of people who refuse to accept the support and treatment that could
help them get back to a life of work.[92]
The Prime Minister asked Professor Black ‘to consider
whether people should face the threat of a reduction in benefits if they refuse
to engage with a recommended treatment plan’.[93]
Professor Black did not support this option in her 2016 report:
... we doubt whether mandation of treatment – one of the
possibilities mentioned in our terms of reference – should be the first
response to the evident problems for the cohorts under discussion. Further,
there is a strong consensus that mandating treatment would lead to more people
hiding their addiction than reveal it. We also heard from health professionals
serious concerns about the legal and ethical implications of mandating
treatment and whether this would be a cost effective approach.[94]
The Black Report did not recommend using drug testing to
identify problem drug users.
Policy
position of non-government parties/independents
Australian
Labor Party
Labor members have expressed concern about the proposed
drug testing trials. They note that similar measures in the United States have
shown ‘little evidence of achieving better outcomes for people with substance
abuse issues’ and that the Government has not provided evidence to show that
the measures will lead to better health outcomes.
In 2014 Senator Kim Carr was asked to comment the idea of
drug testing after Kevin Andrews, then Minister for Social Services, had ruled
it out:
... it was a silly idea. We’ve seen these punitive measures
being taken in a range of Government programs now. This is a Government that is
quietly vicious in terms of the way it treats people, particularly our most
vulnerable in the community.[95]
Australian
Greens
The Australian Greens oppose the drug testing measure. In
a media release Senator Rachel Siewert said:
Drug addiction needs to be treated as a health issue. Testing
income support recipients has been a failed measure in the US and has been
abandoned after proposals in the UK and Canada. It needs to be abandoned.[96]
Nick
Xenophon Team
In a post Budget interview Senator Nick Xenophon said that
he is a supporter of mandatory rehabilitation for people with severe substance abuse
problems but said that it mattered how it was done. When asked whether he would
oppose drug testing measures he said he wanted to see the detail.[97]
Jacqui
Lambie
In 2015 Senator Jacqui Lambie proposed that income support
recipients should be drug tested.[98]
Asked about the drug testing measure in the Budget Senator Lambie said: ‘By
second-guessing which ones they're going to do rather than doing it full-on
random, I'm not sure they’ll get the result they want to achieve’.[99]
Other
independents
According to a report in The Australian on 22 May
2017, Senators Derryn Hinch and Cory Bernardi are likely to support the drug
testing measure.[100]
How the
drug testing trial will operate
The drug testing trial established by the Bill has two
objectives. It seeks to:
- maintain
the integrity of, and public confidence in, the social security system by
ensuring that tax-payer funded welfare payments are not being used to purchase
drugs or support substance abuse, and
- provide
new pathways for identifying recipients with drug abuse issues and facilitating
their referral to appropriate treatment where required.[101]
The trial aims to test the effectiveness of these new
pathways.[102]
Officers of the Department of Social Services told the Senate Community Affairs
Committee that the trial is designed to build evidence.[103]
The Government will select three sites for the trial. Over
a two-year period, 5,000 new recipients of Newstart Allowance and Youth
Allowance (other) will be required to undertake tests to identify whether they
have used illegal drugs.[104]
The Government plans to begin the trial in 1 January 2018.[105]
Selection
of the three trial sites
The Government will select three locations where there is
a high incidence of drug use. In order to identify these sites the Government
may use data from:
- the
Australian Institute of Health and Welfare's 2013 National Drug Strategy
Household Survey
- state
and territory government crime statistics on drug use and possession
- administrative
data from the Department of Human Services on jobseekers that identify drug
dependency issues
- the
Australian Criminal Intelligence Commission's 2017 National Wastewater Drug
Monitoring Program report.[106]
The Government will also consider the availability of
treatment services.
When the drug testing measure was announced in the Budget,
there was considerable media interest in the idea that the Government would use
National Wastewater Drug Monitoring Program data to identify sites with high
levels of drug use. However, it seems unlikely the Government will rely heavily
on this data when selecting sites. While the Australian Criminal Intelligence
Commission’s report gives results for capital cities, it does not identify
particular regional sites.[107]
Item 1 of Part 1 in Schedule 12 to the Bill inserts
the definition of drug test trial area into subsection 23(1) of
the Social Security Act being an area prescribed by the drug test
rules. Item 3 of Part 1 in Schedule 12, inserts proposed
section 38FA into the SS Act to empower the Minister, by legislative
instrument, to make drug test rules. The rules provide for a
range of matters including but not limited to:
- prescribing
the drug test trial areas
- prescribing
substances for the purposes of the definition of testable drug[108]
- giving
and taking samples of persons’ saliva, urine or hair for use in drug tests and
the dealing with such samples
- carrying
out drug tests and
- the
giving of results of drug tests in certificates or other documents and the
evidentiary effect of those certificates or documents.
Selecting
recipients for drug testing
The drug testing regime will only apply to recipients of
Newstart Allowance and Youth Allowance (other) who make a claim after 1 January
2018. Item 1 of Part 1 in Schedule 12 to the Bill inserts the definition
of drug test trial member into the SS Act. A person is a drug
test trial pool member at a time if all of the following are satisfied:
- that
time is in the drug test trial period
- at
that time the person’s usual place of residence is in a drug test trial area
and
- at
that time the person is receiving Newstart Allowance or Youth Allowance (otherwise
than on the basis that the person is a new apprentice or undertaking full‑time
study) as a result of a claim made in the drug test trial period.
Claimants will be required to acknowledge that they may be
required to undergo drug testing as a condition of payment.[109]
The Government plans to use a two-step process to select
individuals for testing. First it will identify a group of recipients
who are at higher risk of drug misuse and second, it will randomly
select individual recipients from this group.[110]
According to the Minister of Social Services, Christian Porter:
We'll use a combination of data that we will help develop
with Data61 and the CSIRO, our own internal data at DHS and DSS which looks at
track records of clusters of people in terms of their compliance. We'll put all
of that together and identify a broad group of people and then randomly select
inside that broad group inside each of the three trial sites.[111]
The tests will be conducted by third party drug testing
providers.[112]
Item 18 of Part1 in Schedule 12 to the Bill inserts proposed section
64A into the SSA Act. This section empowers the Secretary to enter
into contracts for the carrying out of drug tests.
Scrutiny of
Bills Committee
The Scrutiny of Bills Committee noted that proposed
section 64A also provides that the drug test rules may require contracts
for the carrying out of drug tests to meet certain requirements, including
provisions requiring the giving, withdrawal or revocation of a notice to the Secretary
saying that a person should be subject to income management. The Committee
stated that in its view:
... significant matters should be included in primary
legislation unless a sound justification for the use of delegated legislation
is provided. In this instance, the explanatory memorandum does not explain why
the confidentiality and disclosure of drug test results, the keeping and
destroying of records relating to samples and drug tests, and requirements
regarding the contractual arrangements for drug testing are to be included in
delegated legislation rather than set out in the primary legislation.[113]
Item 24 in Part 1 of Schedule 12 to the Bill
inserts proposed subsection 123UFAA(1A) into the SSA Act so that
if an income support recipient tests positive they will be placed on income
management for 24 months.
Recipients cannot avoid income management by moving off
payment and reclaiming later. If they reclaim they will be placed on income
management for the remainder of the 24 months.[114]
Recipients who test positive on the first test will be
required to undertake further tests. According to the Explanatory Memorandum to
the Bill, ‘they will be required to undertake the next test within 25 working days
of the first test’.[115]
However, this time period is not specified in the Bill itself.
Recipients
who fail second or subsequent tests
If a recipient tests positive again during the 24-month
period, they will be referred to a medical professional for assessment. If the
medical professional recommends some form of treatment, these treatment
activities will form part of the recipient’s mutual obligation requirements.
Currently section 544A of the SS Act requires a
person who is in receipt of Youth Allowance (with some specified exceptions) to
enter into a Youth Allowance Employment Pathway Plan. Section 544B sets out the
terms of the Employment Pathway Plan. Sections 605 and 606 of the SS Act
contain provisions in equivalent terms in respect of recipients of Newstart
Allowance.
Item 4 of Part 1 in Schedule 12 to the Bill inserts
proposed subsection 544B(1AA) into the SS Act so that one of the
requirements of the Youth Allowance Employment Pathway Plan in relation to a
person must relate to undertaking treatment for the use of drugs if:
- the
person is a drug test trial pool member
- the
person has two or more positive drug tests
- the
person has undergone a medical, psychiatric or psychological examination after
the person has had those positive drug tests and
- the
report of the examination given to the Secretary recommends that the person
undertake treatment for use of drugs.
Item 7 of Part 1 in Schedule 12 to the Bill inserts
proposed subsection 606(1AA) into the SS Act in equivalent terms
in relation to a Newstart Allowance Employment Pathway Plan.
Minister Porter explained that this treatment could take a
number of forms:
... when people think about recovery and rehabilitation from
drug abuse they often think of residential rehabilitation, which is probably at
the very high end of the spectrum of treatments. The overwhelming—the largest
percentage of treatment is usually counselling, and indeed assessment that
leads to counselling.[116]
According to the Explanatory Memorandum, if treatment is
not immediately available, ‘recipients will be required to take appropriate
action such as being on a waiting list to satisfy part of their mutual
obligation requirements’.[117]
Recipients who are required to undertake drug treatment may also be required to
undertake other activities such as job search.[118]
Recipients
to repay the cost of positive tests
Recipients who test positive to a drug test other than the
first test will have to repay the cost of the test.
Item 11 in Part 1 of Schedule 12 to the Bill
inserts proposed Part 3.16C—Drug test repayment deductions into the SS
Act. The new Part provides that a drug test repayment amount arises for a
person for each positive drug test, with some exceptions. The repayment amount
is to be prescribed by a legislative instrument.[119]
According to proposed subsection 1206XA(7) of the SS Act, in
setting the amount ‘the Secretary must have regard to the lowest cost to the
Commonwealth of any drug test that could be carried out at the time the
legislative instrument is to commence’.
The cost of the test will be deducted from future income
support payments at a rate of no more than 10 per cent (unless the recipient
chooses to repay the cost more quickly).[120]
The Secretary will be able to reduce the rate in cases of hardship.[121]
Sanctions
Currently section 63 of the SS Act sets out the
circumstances in which the Secretary may require a person to attend the
Department. Item 15 in Part 1 of Schedule 12 inserts proposed
paragraph 63(4)(c) into the SSA Act so that if the person is a drug
test trial pool member, the Secretary may require the person to give a
sample of a particular kind at a particular place for a drug test to be carried
out on the sample. Existing section 64 of the SSA Act operates so
that where the Secretary gives a person a notice requiring the person to do a
thing (and the requirement is reasonable[122]),
payment to the person is not payable if the person does not comply with that
requirement.[123]
Refusal to
undertake drug test
If a person refuses to undertake a drug test, without reasonable
excuse, they will be subject to a drug test refusal waiting period
of 28 days starting on the day their payment was cancelled.[124]
In addition, a recipient who tests positive can request a
re-test. However, if this test is also positive they will have to repay the
cost of the test.[125]
Key issues
Lack of
consultation during policy development
The Government did not consult with outside experts while
developing the policy.[126]
A review of similar policy proposals in the UK consulted widely and did not recommend
random drug testing or mandatory drug treatment.[127]
Ministers have said that the trial is designed to make
income support recipients better off by helping them move off income support
and into paid work:
The drug testing trial we are seeking Parliament’s agreement
to is not designed to stigmatise or penalise people. In fact our aim is the
complete opposite; we want to identify those people with drug issues and help
them so that they can ultimately enjoy the whole range of benefits that come
from earning a living through work.[128]
However, the Government has not provided a clear
explanation of how the drug testing regime will assist trial participants into
employment and avoid stigmatising or penalising them. Few welfare agencies,
health professionals or drug treatment experts regard a combination of random
drug testing and penalties for refusal to undertake treatment as a promising
approach (for example, see stakeholder comments below).
In the UK, Professor Carol Black’s review consulted
widely. The review did not recommend random drug testing or mandatory treatment
(see above). It also cautioned against relying on drug treatment alone to
achieve outcomes:
It is clear that providing treatment alone, without
additional support like employment, housing and skills, has limited and
inconsistent effects on employment. Increasing the proportion of people with a
drug and/or alcohol dependence entering treatment would not, of itself, deliver
the Government’s desired improvement in job outcomes.[129]
The Black Review recommended an integrated approach to
services. In Australia the National Ice Taskforce recommended better
coordination ‘between community-based alcohol and other drug services, and
support referral pathways between local health, support, employment and other
programmes’.[130]
It is not clear whether the Government has considered integrating employment and
other services with drug treatment as part of the trials.
Questions
about the Government’s objectives
Some policy experts and commentators have suggested that
drug testing measures are more about signalling the government’s disapproval of
drug use than assisting problem drug users into employment.
In Australia Professor Peter Whiteford wrote: ‘it’s
difficult to escape the conclusion that this proposal is symbolic, rather than
designed to have a positive impact on the well-being of those to be tested’.[131]
Former Coalition adviser Peta Credlin made a similar point in an interview on
Sky News:
If it was a more substantial cohort of 5,000, I would say it
is a serious policy. If it was built with the support of the welfare
constituency, I'd say it was serious policy. I think this is again a shopping
list out of the focus groups of things they wanted to include.[132]
Commentators have made similar comments about drug testing
schemes overseas. For example, in 2011 The Economist suggested that a
Florida drug testing program was designed primarily to signal the government’s
‘disapproval of poor people using drugs’.[133]
Evaluation
Evaluation is a key part of the trial. Currently there is
little evidence about the effectiveness of drug testing as a welfare to work
measure.[134]
According to the Explanatory Memorandum:
The trial will be subject to a comprehensive evaluation which
will inform any decisions about extending the trial or rolling out drug testing
more broadly.[135]
The Government has not provided any detail about how the
evaluation will be designed and conducted. This is a concern because a number
of evaluations previously commissioned in the social services portfolio have
produced only weak evidence about program impact. For example, the 98 page
report of the evaluation of income management in the Northern Territory noted
that the evaluation depended on the perceptions and views of stakeholders
rather than objective indicators and conceded that ‘the overall evidence about
the effectiveness of income management was not strong’.[136]
Privacy and
stigmatisation
The cashless debit card used to income manage recipients
may lead to stigma because it identifies card holders as drug users.
If an income support recipient tests positive to the first
drug test, they will be placed on the cashless debit card.[137]
The card used in the current cashless debit card trial sites has been featured
in numerous media reports and is readily identifiable.[138]
Unless the drug testing trials and cashless debit card
trials are run in the same locations, the cashless debit card could identify a
person as a drug user. It is likely to become common knowledge in trial sites
that people are only issued with a cashless debit card if they test positive on
a drug test.
It is not clear how the Government plans to respond to
this problem.
The role of
contractors
The Bill empowers the Secretary of the Department of Human
Services, on behalf of the Commonwealth, to engage contractors to administer
the drug tests.[139]
Proposed subsection 64A(3) of the SSA Act provides
that the drug test rules may require a contract to include provisions requiring
the following:
- giving
the Secretary written notice of the results of the drug test
- giving
notice (in accordance with proposed paragraph 123UFAA(1A)(c)) that in
the 24 months, or longer period (if any) before the test time, the contractor
who carried out the test gave the Secretary a written notice saying that the
person should be subject to the income management regime
- withdrawing
or revoking a notice (in accordance with proposed paragraph 123UFAA(1A)(d))
- giving
notice (in accordance with proposed subsection 1206XA(5) of the SS
Act) and
- any
subcontracts to are to include the matters set out in those provisions.
In effect, the Bill empowers the contractor to give the
Secretary a written notice saying that the person should be subject to the
income management regime—rather than giving the Secretary notice of the outcome
of the person’s drug test and leaving it to the Secretary to determine, on that
evidence, that payments are no longer payable.
The Explanatory Memorandum is silent about the rationale
for this provision. It may well be that it relates to the privacy of recipients—that
is, by merely stating that the person should be subject to the income
management regime rather than stating the nature and amount of testable drug
which is detected, that information will not become part of the recipient’s
file. These matters will be clearer when the relevant drug test rules are made.
Schedule 13—Removal of exemptions for drug or alcohol
dependence
Quick guide to Schedule 13
The amendments in Schedule 13:
- establish
a new category of income support recipient—being a declared program
recipient—that is, someone who is a participant in an employment
services program specified in a determination (an alcohol and/or other drug
treatment program) and
- removing exemptions from the mutual obligation requirements where the
reason for the exemption is wholly or predominantly attributable to the
person’s dependence on alcohol or another drug, unless the job seeker is a
participant in an employment services program to be specified in a
determination—that is, an alcohol and/or other drug treatment program.
|
Commencement
The amendments in Schedule 13 to the Bill commence on 1
January 2018 if Royal Assent is before that date. Otherwise the measures
commence on the first 1 January, 1 April, 1 July or 1 October to occur after
the end of the period of two months beginning on Royal Assent.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 13 is an expense of $28.8 million.[140]
Background
Schedule 13 gives effect to one of the
measures that was announced as part of the 2017–18 Budget.[141]
Mutual obligation requirements
Under the SS Act, job seekers who are
in receipt of an activity-tested income support payment must meet various
mutual obligation requirements.[142]
These requirements are imposed to ensure that job seekers who are able to do so
are actively looking for work and participating in activities intended to help
them into employment.
Where a job seeker is experiencing special
circumstances that are beyond their control (such as a major personal crisis or
homelessness) or temporarily incapacitated due to sickness or an accident they
may gain an exemption from their mutual obligation requirements for a given period.
These special circumstances, sickness, or accidents may be primarily a result
of the job seeker’s dependence on or misuse of alcohol and/or other drugs.
Currently, there is no obligation for job seekers who gain an exemption from
their mutual obligation requirements to attempt to address their alcohol and/or
other drug dependency. The Government claims that the number of job seekers
with an exemption related to alcohol and/or other drug dependency increased
from 2,920 to 5,256 in the five years between September 2011 and 2015.[143]
Before the Department of Human Services is
able to impose a penalty on a job seeker for failing to meet their mutual
obligation requirements, it must first determine whether or not the job seeker
had a reasonable excuse for doing so. Under the reasonable excuse provisions, a
job seeker’s alcohol and/or other drug dependency is one of the matters that
must be taken into account in determining whether or not they had a reasonable
excuse for their compliance failure.[144]
Currently, there is no limit on the number of times that a job seeker may use
as a reasonable excuse for non-compliance their alcohol and/or other drug
dependency.
The Government has argued that the current
arrangements, outlined above, enable job seekers to avoid their mutual
obligation requirements and penalties for failing to meet these requirements by
using their alcohol and/or other drug dependence as an excuse, without making
any effort to address their dependency.
The measure in Schedule 13 seeks to deal
with these perceived failings.
It does so by removing exemptions from the mutual
obligation requirements where the reason for the exemption is ‘wholly or
predominantly attributable to the person’s dependence on alcohol or another
drug’, unless the job seeker is a participant in an employment services program
to be specified in a determination—that is, an alcohol and/or other drug
treatment program.
Key
provisions
Item 1 in
Schedule 13 to the Bill inserts the definition of a declared program
participant into the dictionary at subsection 23(1) of the SS
Act. According to this definition, a declared program participant is a
participant in an employment services program specified in a determination made
under section 28C of the SS Act.
Item 2 inserts proposed
section 28C into the SS Act to allow the Secretary to make a
determination, by legislative instrument, in relation to participants in a
specified employment services program.
Currently, the SS Act allows for job
seekers to be exempted from their mutual obligation requirements if the
Secretary is satisfied that they are unable to meet these requirements due to
illness, accident or special circumstances.[145] Items
3–12 in Schedule 13 to the Bill do two things:
- first they remove these exemptions for
recipients of Disability Support Pension, Parenting Payment, Youth Allowance
(other), Newstart Allowance and Special Benefit whose illness, accident or
special circumstance is determined to be primarily a result of their dependence
on or misuse of alcohol or another drug
- second they provide that the exemptions will
remain for job seekers who are declared program participants—that
is, participating in alcohol and/or other drug treatment.
The Explanatory Memorandum indicates that
remote job seekers participating in the Community Development Program, a
majority of whom are Indigenous, and many of whom are disadvantaged, will be
included in the declared program participant category.[146] It
goes on to suggest that this exemption is justified on the grounds that ‘the
Community Development Program is specifically designed to reflect the unique
labour market conditions that job seekers face in remote Australia’, and, to
the extent that CDP participants will be treated differently to participants on
other employment services programs ‘this is reasonable and proportionate to the
objective of the Community Development Program ’.[147]
The Explanatory Memorandum notes that
Indigenous Australians ‘statistically experience higher levels of alcohol or
drug dependency compared with the Australian population generally’.[148] As such, the change is likely to impact disproportionately on those
Aboriginal and Torres Strait Islander job seekers who fall outside the
Community Development Program. This is acknowledged in the statement of
compatibility with human rights.[149]
The Explanatory Memorandum states that for
those job seekers who are declared program participants and participating in
treatment, ‘participation in this treatment will reduce, or in some
circumstances fully meet, their mutual obligation requirements’.[150] However, the basis on which this decision is to be made is unclear.
It is to be assumed that the arrangements
will be similar to those that apply under the drug testing trial. Under these
arrangements, job seekers are required to complete one or more treatment
activities as part of their Employment Pathway Plan. However, where treatment
is not immediately available, they will be ‘required to take appropriate action
such as being on a waiting list to satisfy part of their mutual obligation requirements.
Recipients with a drug treatment activity in the plan may still be required to
undertake other activities, including job search depending on their
circumstances’.[151] This may be at the discretion of the jobactive employment
services provider.
Schedule
14—Changes to reasonable excuses
Quick guide to Schedule 14
Schedule 14 amends the Social Security (Administration)
Act 1999 to enable the Secretary to determine by legislative instrument
matters that he, or she, must not take into account in deciding whether or
not a job seeker has a reasonable excuse for committing a compliance failure.
|
Commencement
The amendments in Schedule 14 to the Bill commence on the
later of Royal Assent and 1 January 2018.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 14 is an expense of $4.3 million.[152]
Background
Schedule 14 gives effect to one of the
measures that was announced as part of the 2017–18 Budget.[153]
The material set out under the heading ‘Back ground’ to
Schedule 13 above also applies to this measure.
Key
provisions
Division 3A in Part 3 of the SSA Act
contains the compliance framework which applies to recipients of participation
payments. Currently the Division empowers the Secretary to determine, by
legislative instrument, that certain matters may be taken into account in
deciding whether or not a job seeker has a reasonable excuse for committing a
compliance failure. The relevant failures relating to Newstart Allowance,
and for some people, Youth Allowance, Parenting Payment and Special Benefit are:
- no
show no pay failures[154]
- connection failures[155]
- re-connection failures[156]
- serious failure for refusing or failing to accept an offer of suitable
employment[157]
- non-attendance failures.[158]
The matters that must be taken into account
are those spelled out in a legislative instrument made under section 42U of the
SSA Act.
Items 1–5 in
Schedule 14 to the Bill amend notes in each of the relevant sections so that
whilst the Secretary will continue to be able to take certain matters into
account, the Secretary may be prohibited from taking other matters into
account. The relevant notes create a cross-reference to section 42U.
Items 6 and 7 amend
existing section 42U so that the section will explicitly list those matters
that are to be taken into account and those that are not. Proposed subsection 42U(3) of the SSA Act empowers the Secretary, by legislative
instrument, to determine matters that are not to be taken into account in
determining whether a job seeker has a reasonable excuse for committing a
compliance failure.
These changes are to give effect to the
Government’s commitment that, where a job seeker’s abuse of, or dependence on,
alcohol and/or other drugs has been used once as a reasonable excuse for a
compliance failure, it must not be taken into account for a second or
subsequent compliance failure.
According to the Explanatory Memorandum to
the Bill, it is intended that the existing reasonable excuse provisions will
continue to apply if alcohol and/or other drug treatment is unavailable
or inappropriate, including where the job seeker:
- is ineligible or unable to participate;
- has already participated in all available treatment;
- has agreed but not yet commenced in treatment; or
- has relapsed since completing treatment and is seeking further
treatment.[159]
That is, the job seeker will be able to
continue to have their abuse of, or dependence on, alcohol and/or other drugs
taken into account in relation to compliance failures.
The Government has indicated that the
legislative instrument will provide that a job seeker’s abuse of, or dependence
on, alcohol and/or other drugs will only be able to be used as a reasonable
excuse once.[160]
The job seeker will not be penalised for the compliance failure, but will be
given the option of participating in alcohol and/or other drug treatment. If
the job seeker refuses to participate in treatment and fails to meet their
mutual obligations again, then drug or alcohol dependency will not be
considered a reasonable excuse, and sanctions may be applied. However, this
will not be certain until the relevant legislative instrument is made.
Key issues
The proposed measures raise a number of
issues.
Whether the treatment is ‘voluntary’
While job seekers are said to be given the
option of voluntarily undertaking treatment for alcohol and/or other drug use
or dependency, it is open to question just how free this choice is. Given that
the alternative is for job seekers to no longer have their alcohol and/or other
drug use or dependency taken into account in considering whether they had a
reasonable excuse for compliance failure, and the prospect of future financial
penalties, some job seekers are likely to feel that they are effectively being
coerced into treatment. This has implications for the prospective outcomes of
any treatment entered into.
A number of meta-analyses (or systematic reviews) of general
research on mandatory drug treatment have been undertaken in recent years.[161]
Each of these indicates that the empirical evidence for the effectiveness of
mandatory treatment is inadequate and inconclusive. While there is some
evidence that coercion improves treatment entry and retention in treatment
relative to voluntary treatment, the evidence does not support the view that
coercion has positive impacts on treatment outcomes.
With regard to the mandatory treatment of income support
recipients in particular, the evidence is limited. This is largely because
mandatory drug treatment for income support recipients appears to be confined
to some United States (US) jurisdictions.
Availability
of treatment
The success or otherwise of the new measures—in terms of
increasing participation in treatment of job seekers with alcohol and/or other
drug issues—hinges on the availability and effectiveness of alcohol and other
drug treatment services.
State and territory governments are largely responsible
for the funding and provision of alcohol and/or other drug treatment services. Among
other things, state and territory governments provide public sector health
services and fund community-based organisations to furnish drug prevention and
treatment programs within their jurisdictions.
The Federal Government provides indirect support for
alcohol and other drug treatment services through various means, including
funding for Medicare, subsidised private health insurance, medication provided
through the Pharmaceutical Benefits Scheme (PBS) and allied health services.
The Federal Government also directly funds the delivery of treatment services
through the Substance Misuse Service Delivery Grants Fund, the Substance Misuse
Prevention and Service Improvement Grants Fund and the Non-Government
Organisation Treatment Grants Program.
In 2015 the Federal Government provided around $300
million over four years towards a package of measures that make up the National
Ice Action Strategy. A substantial proportion of this funding—$241.5
million—has been allocated to the 31 Private Health Networks for the purpose of
boosting the alcohol and other drug treatment sector.
In 2012 former Minister for Mental Health and Ageing, Mark
Butler requested that the Department of Health and Ageing conduct a review of
the drug and alcohol prevention and treatment services sector. This review was
undertaken by a team from the National Drug and Alcohol Research Centre (NDARC)
at the University of New South Wales, headed by Professor Alison Ritter. The
final report was submitted to the Government in 2014.
As a part of the study, the researchers undertook a gap
analysis to estimate the ‘the number of individuals who would be suitable for,
likely to seek and benefit from AOD treatment in any one year but who are not
being accommodated in the current service system’.[162]
They found that while Australia provides comprehensive alcohol and other drug
treatment services across a range of client groups, treatment types and
locations, and probably has one of the lowest rates of unmet demand in the
world, there is nevertheless greater demand for services than current supply.
It was estimated that ‘between 200,000 and 500,000 more
people would be in treatment if demand were to be fully met’.[163]
The study also identified some specific gaps, suggesting that there is a need
for more alcohol treatment services; services that cater for young people,
families and women with children and Aboriginal and Torres Strait Islander
people; and, residential rehabilitation, residential withdrawal,
pharmacotherapies and counselling.
As such, the measures are likely to exacerbate existing
levels of unmet demand, in the absence of increased services and better
matching of services to client need and geographic location. As noted above,
funding for alcohol and other drug treatment services is primarily the
responsibility of the states.[164]
Whether substance use and abuse is a barrier to employment
Representative national population survey data show that
rates of substance abuse are almost uniformly higher in unemployed samples than
employed samples. Unemployed people are more likely to consume excessive
amounts of alcohol, and to use illicit and prescription drugs. They are also
more likely to smoke and develop dependence on alcohol and illicit drugs.[165]
Latest available detailed findings from the National
Drug Strategy Household Survey, conducted by the Australian Institute of Health
and Welfare (AIHW), indicate that in 2013 use of illicit drugs in the past 12
months was more prevalent among the unemployed.
Unemployed Australians were 1.6 times more likely to have
used cannabis, 2.4 times more likely to have used meth/amphetamines, 1.8 times
more likely to have used ecstasy, 1.6 times more likely to have misused
pharmaceuticals and 1.4 times more likely to have used cocaine than people who
were employed.[166]
A similar general pattern was seen among people who were unable to work.
Unemployed people were, however, less likely to drink alcohol at risky levels.
See figure below.
Figure 1: drug
use by employment status, people aged 14 or older, 2013 (per cent)

Source: Australian Institute of Health and Welfare (AIHW), National Drug
Strategy Household Survey detailed report 2013, Drug Statistics Series no.
28, cat. no. PHE 183, AIHW, Canberra, 2014, p. 92.
While the exact nature of the relationship between
unemployment and substance use/disorders is not entirely clear, the evidence
shows that problematic substance use increases the likelihood of unemployment
and decreases the chance of people finding and holding down a job. The reverse
also holds true; unemployment is a significant risk factor for substance use
and the subsequent development of substance use disorders. Unemployment has
also been found to increase the risk of relapse after alcohol and other drug
addiction treatment.[167]
It should be noted that while severe
substance abuse or dependence is likely to impede employability, a substantial
proportion of the research evidence indicates that drug use per se is
not a major barrier to employment.[168]
Most drug users are employed. And, while the above AIHW data show that the
overall prevalence of illicit drug use is higher among unemployed people than
employed people, they do not tell us how many unemployed people are abusing or
dependent on drugs.
Scott MacDonald et al note that ‘many
factors such as physical and mental health problems, lack of job skills,
perceived discrimination, and lack of transportation are major barriers for
employment’.[169]
They go on to argue that ‘a disproportionate emphasis on drug use as a factor
for not obtaining employment could be ineffective if these other factors are
not addressed as well’.[170]
Based on a review of the evidence related to
substance use among a cohort of income support recipients in the US, Lisa
Metsch and Harold Pollack reach similar conclusions. They found that broad
trends of substance use among Temporary Assistance to Needy Families (TANF)
recipients appeared to parallel trends in the general population, and that
widespread substance use was not a major cause of TANF recipients’ continued
economic dependence:
Although substance use disorders attract
widespread attention, they appear to be no more common, and are no more
important to employment and welfare receipt, than are concerns [such] as poor
physical health, poor academic skills, psychiatric disorders, transportation
difficulties, and more general concerns such as racial minority status,
language barriers, and immigration concerns.[171]
Stakeholder
comments
A majority of stakeholder comment has been in relation to
the proposed drug testing trials, introduced under Schedule 12 to the Bill.
Think
tanks—The Centre for Independent Studies
Peter Saunders of the Centre for Independent Studies has
argued for drug treatment as a mutual obligation activity. Although Dr Saunders
has not commented on the measures in this Bill he has made comments in the
past. In a 2013 paper, Re-moralising the Welfare State, he makes an
ethical case for measures such as mandatory drug treatment:
It is an ethical mistake when people on the Left repeatedly
reject the distinction between ‘deserving’ and ‘undeserving’ cases, for while
it can be difficult to draw this distinction in practice in every case, the
attempt to do so lies at the heart of the fairness ethic. Those who have paid
into the system (through taxes or other contributions) should have entitlements
that others have not earned, and those whose irresponsible behaviour has
contributed to their neediness should expect behavioural conditions to be
attached to payments from which other recipients should be exempted.[172]
Dr Saunders cites a British survey that found 89 per cent
of respondents were in favour of requiring ‘people addicted to drugs such as
heroin and crack cocaine to declare their problem and seek treatment if they
are to continue receiving benefits’.[173]
Drug and
alcohol groups
Queensland
Mental Health and Drug Advisory Council
At a meeting on 16 June 2017 The Queensland Mental Health
and Drug Advisory Council:
... expressed concern over the potential for greater
stigmatisation of people living with problematic alcohol and other drug use,
and the lack of clarity about how the referrals to treatment and support will
be managed.[174]
Australian
National Council on Drugs (ANCD)
The Australian National Council on Drugs (ANCD) has not
commented on the drug testing measure in the 2017 Budget (ANCD was defunded in
2014), however, it did address the issue of drug testing of welfare
beneficiaries in a 2013 position paper. The ANCD argued:
There is no evidence that drug testing welfare beneficiaries
will have any positive effects for those individuals or for society, and some
evidence indicating such a practice could have high social and economic costs.
In addition, there would be serious ethical and legal problems in implementing
such a program in Australia. Drug testing of welfare beneficiaries ought not be
considered.[175]
The paper draws on international research and experience
and concludes: ‘The small amount of (direct and indirect) evidence available
seems to indicate that it is more likely to increase harms and costs, both to
welfare beneficiaries and the general public, than it is to achieve its stated
aims’.
Victorian
Alcohol and Drug Association (VAADA)
The Victorian Alcohol and Drug Association (VAADA) has
expressed concerns about the drug testing measure:
This proposal does not have an evidence base and is likely to
engender greater harm to the community.
These types of ill-considered measures, while popular among a
number of cohorts, displace a highly complex drug using market and contributes
to increasing stigmatisation toward individuals who consume illicit substances
specifically as well as welfare recipients generally.
Media reports on this policy indicate that individuals who [provide
two] positive drug tests over a 25 day period will be corralled into the
already overburdened alcohol and other drug treatment.[176]
Sharon O’Reilly, acting executive officer of VAADA says
that the alcohol and other drugs treatment sector is already overburdened. O’Reilly
warns that the trial:
... may generate a shift in consumption patterns among cohorts
who consume illicit substances, to consuming substances which cannot be
detected through standard drug testing means, such as new and emerging psychoactive
substances or shifting onto various prescription drugs. This will likely create
unknown harms and further complexities for our treatment services and emergency
departments.[177]
She also suggests that some people experiencing dependency
may avoid seeking engaging with treatment services so that they are not
penalised by Centrelink.[178]
Western
Australian Network of Alcohol and other Drug Agencies (WANADA)
WANADA
has expressed concerns about the drug testing and other welfare reform
measures:
Service Demand. Alcohol and other drug treatment
services across the nation are not currently resourced to meet the existing
demand. In Western Australia, services must effectively more than double in the
next few years to match community need. The announced reforms, while
recognising treatment as a legitimate step toward employment, have failed to recognise
or address the increased resourcing required to meet any increase in service
demand pressure due to this reform.
Consultation. There has been no prior consultation
with the alcohol and other drug service sector to inform the development of
these reforms. As a result, these reforms do not take into account: the
complexity of addressing alcohol and other drug use issues; the readiness of
the sector to respond to the welfare reform changes by July 2017; and the
existing capacity of services to meet demand.
Service and Welfare complexities. It is currently not
clear how some residents will cover their contribution to rehabilitation if
they’re found to be ineligible for Youth Allowance or Newstart payments, or if
their allowances are suspended. There is also no clarity on the degree to which
treatment will go towards meeting ‘mutual obligations’. All these factors have
the potential to impact on the provision services.
Clarity. There is currently insufficient information
publically available to ascertain the full impact on the alcohol and other drug
service sector.
Stigma and Discrimination. The reforms have the
potential to further stigmatise those with alcohol and substance use concerns
and do not effectively reflect the complex social, health and personal issues
that contribute to substance use. If implemented, the largely punitive nature
of these reforms have the potential to further discincentivise people from
acknowledging they have an alcohol or other drug issue and seeking help.
Penington
Institute
In a post-budget media release, the Penington Institute
argued that linking income support eligibility to drug testing was likely to
result in an increase in crime and homelessness. Chief Executive Officer John
Ryan said:
In Australia there is a real lack of funding for drug
treatment services – including medically supported drug treatment. The
Government would have been better off making stronger investments there rather
than attacking the vulnerable.[179]
Alex Wodak
and GetUp
President of the Australian Drug Law Reform Foundation,
Alex Wodak argues that random drug testing is ‘a crude and problematic way of
monitoring drug use’. He notes that it is ‘more likely to identify use of
longer acting drugs (such as cannabis) and less likely to identify shorter acting
drugs (such as ice and ecstasy)’ and that it ‘fails to distinguish between drug
consumption in functional people and problematic drug use’.
Dr Wodak argues that drug testing is unlikely to change
behaviour or help income support recipients find work. He notes:
The drug treatment system in Australia is overloaded and
underfunded. Unless that crisis is addressed, these people will go to the back
of an already long queue.[180]
Dr Wodak has joined with activist organisation GetUp to
launch a campaign against the proposed drug testing regime.[181]
Welfare
sector
Brotherhood
of St Laurence
Brotherhood of St Laurence Executive Director, Tony
Nicholson, questioned the rationale for the drug testing measure:
Mr Nicholson said he was ...
puzzled by the rationale for the proposed trial of American-style random drug
testing for new welfare recipients, saying that in his experience any drug use
was readily identified and dealt with appropriately as part of the task of
preparing people for work. On the other hand, incorporating drug and alcohol
rehabilitation programs into job plans as a valid step towards employment was
welcome, he said.[182]
Australian
Council of Social Service (ACOSS)
ACOSS opposes the measure:
... the Budget continues to
demonise people with a range of new welfare crackdown measures. No expert in
drug and alcohol addiction has supported the random drug testing of social
security recipients. Trials elsewhere have failed to achieve any positive
results. ACOSS strongly opposes this measure.[183]
In their Federal Budget Snapshop ACOSS states:
It is unclear what these measures hope to achieve. They are
highly unlikely to address people’s addictions if they have them, and will lead
to more people living in poverty. The drug testing trial will likely be
expensive. New Zealand spent $1 million on a drug testing program and of the
8,001 income support recipients tested, just 22 tested positive for illicit
drugs (July 2014).[184]
National
Social Security Rights Network
The
National Social Security Rights Network opposes the measure:
... in our view, this is a radical and unacceptable expansion
of conditionality in the social security system. Job seekers have always been
required to look for and accept suitable work or undertake activities to
address employment barriers. This measure goes far beyond that. It requires job
seekers to agree to random drug testing, a significant intrusion on privacy, as
a condition of access to income support. It erodes the core purpose of our
social security system, which is to provide a basic safety net for people in
need.
The measure has the beneficial objective of seeking to
connect people with substance abuse issues with appropriate treatment and
engage them with employment services to address barriers to work. However,
substance abuse is a complex individual and social problem. Many of our clients
with substance abuse issues also have connected histories of trauma, abuse,
family violence or mental health problems. We are very concerned that
compelling people to submit to testing and, in some cases, undergo treatment
may have unintended consequences which undermine the measure’s objectives.
If recipients avoid or refuse testing they may lose access to
income support. Rather than engaging recipients as intended, this would
disconnect vulnerable people from the social security system. The burden may
instead fall on their families, who may already be struggling to help them deal
with addiction, and communities.
Making a treatment plan part of their Job Plan exposes
recipients to the risk of financial penalties for failing to meet their mutual
obligation requirements. This could affect people who are genuinely trying to
address substance abuse issues but struggle or relapse. We expect policy
settings will seek to accommodate this reality, but they will be difficult to
draft and even more so to administer as decision-makers will struggle to
distinguish genuine attempts at compliance.
The administrative cost of this measure is unknown, given the
commercial-in-confidence cost of the third party drug testing service. As with
all public policy initiatives, however, it is important to ask what could be
achieved by spending the money available for this measure in other ways. Social
security law is an inappropriate tool to deal with complex individual and
social problems like substance abuse. There are many alternative measures that
could be trialled, which seem more likely to work and do not undermine the
fundamental right to social security.[185]
Anglicare
Australia
In an interview with Pro Bono News, Anglicare Australia
executive director Kasy Chambers said:
“Between drug testing, the demerit point proposal, and the
leaked ‘welfare hotspot’ list, what we have seen in recent weeks is a concerted
campaign to demonise people accessing the social safety net,” Chambers said.
“Anglicare’s Jobs Availability Snapshot shows that people are
already trying their hardest to compete for jobs that just aren’t there. We
should be helping them when they need it, instead of degrading them.
“There is no evidence that these tests work. This plan has
been rejected in Britain, rejected in Canada, and it ought to be rejected
here.”[186]
Catholic
Social Services Australia (CSSA)
Catholic Social Services Australia (CSSA) opposes the drug
testing trial. CSSA’s CEO, Fr Frank Brennan, said:
I am very sorry to see the government announcing ‘a two-year
trial of random drug testing new welfare recipients across three locations’.
This is arbitrary and capricious. If you’re going to drug test anyone, it
should be for good cause, and with well-founded suspicion, and not because a
citizen just happens to be in need of welfare assistance and just happens to be
living in one of three locations in this vast land Australia.[187]
UnitingCare
Australia
UnitingCare Australia opposes the drug testing trial:
We believe this will unfairly vilify and humiliate unemployed
people without assisting them into work. We have taken up this issue through
the Senate Estimates process.
Our research into overseas experience shows that drug testing
has little impact on drug dependence or helping people into work.
We also question how the Government will create the capacity
for the increased service demanded by those forced into treatment. We believe
that instead of this punitive measure, the government should focus on
constructive support for people with drug and alcohol issues.[188]
Melbourne
City Mission
Melbourne City Mission has expressed concern about the
measure:
That JobSeeker recipients who
test positive will be “subjected to further tests and possible referral for
treatment” is of great concern. We know that coercive measures are more likely
to push people further to the fringes, increasing pressure on crisis services
such as emergency relief and crisis accommodation, rather than effect long-term
behaviour change. The 2017-18 budget papers also reference a “denying welfare
for a disability caused solely by their own substance abuse”. These welfare
reform measures ignore a strong body of evidence around underlying causes
(including mental-health reasons) for drug use and abuse.[189]
Good
Shepherd Australia New Zealand
Good Shepherd is a Catholic charity founded by the Good
Shepherd Sisters with a focus on women and girls. Good Shepherd opposes the
measure:
Introducing drug testing for welfare recipients comes
dangerously close to criminalising poverty. It makes basic human rights
conditional on not only job-seeking requirements, but on the absence of
addiction. This demonises people who are already struggling with health issues
and reinforces the worst kind of ignorance and prejudice. Furthermore,
drug-testing welfare compliance regimes trialled elsewhere have proved an
expensive failure at getting people into work and in supporting people to recover
from addictions. In fact, evidence shows it makes finding a job more difficult.[190]
Samaritans
Samaritans is an Anglican charity operating in Newcastle
and the Hunter Valley. Samaritans opposes the measure:
There is no value in playing the blame game for people who
are struggling to overcome addiction. We see that there is no benefit in this
solution; it is simply taking money off those who already are struggling.
There needs to be resources and funding attached to
Centrelink payments for people to attend Alcohol and Other Drug programs,
rather than taking away support payments with no recourse. These people need to
be supported in overcoming their addiction, rather than being put in a
situation of increased financial stress.
Drug addiction and no money could very well result a rise in
the crime rate, suicide rate and the number of children not attending school or
attending without food. This is a huge problem for society- and a costly one at
that.
It’s costly because the welfare sector and providers such as
Samaritans will have to pick up the pieces when people are taken off their
Centrelink. People we support will lose their housing which will increase the
levels of homelessness. They will not be able to get to appointments including
medical or therapy programs because they will have no money on their Opal
Cards. They will be hungry and unable to feed children, which will result in
increased demand in our Emergency Relief centres.
Drug replacement therapy costs between $50-70 per week if the
person is attending a pharmacy outside of the clinic- this is a necessary
expense for someone trying to overcome a drug addiction and something which
will be completely unaffordable if Centrelink payments are taken away. If a
person overcoming a drug addiction does not get this medication, they will
become really unwell and research and experience shows that they will return to
using illicit drugs to suppress the addiction.[191]
Professional
bodies
Royal
Australasian College of Physicians
The Royal Australasian College of Physicians (RACP) argues
that compulsory drug treatment is likely to be ineffective:
“Research and experience has shown that drug testing has a
poor record in modifying drug use. We know that forcing addicts into treatment
is an ineffective way of combating illicit drug use,” explained Dr Yelland.
“Addiction is a chronic relapsing and remitting health issue
and Governments across Australia must think of it as a chronic healthcare issue
moving forward,” said Dr Yelland.
Dr Yelland said the RACP believes the solution to reducing
the number of Australians suffering from addiction lies in adequately funding
treatment and support services.
“We agree that more people suffering with addiction need to
be referred for drug and alcohol treatment. However these plans for drug
testing of welfare recipients are likely to be ineffective, expensive and could
further negatively impact people’s lives.
“Importantly, any approach to this issue must also include
proper investment in treatment and recovery services, otherwise people looking
for help will just end up at the back of an already long queue,” she added.[192]
Victorian
Government
The Victorian Government is opposed to the trials. In an
interview for the ABC’s 7:30, Martin Foley (Minister for Mental Health)
described the measure as ‘cheap, populist nonsense’:
MARTIN FOLEY, VIC MINISTER FOR
MENTAL HEALTH: It simply won't work and it is cheap, populist nonsense,
designed to create a smokescreen as to what really
drives disadvantage.
JULIA HOLMAN: The Victorian Government
has revealed to 7:30 that it won't cooperate with the drug-testing trial.
MARTIN FOLEY: We've made it clear to
the Government at two ministerial councils that we're not interested in being
part of this scam, because all it will do is create even more demand for
services that already stretched, that are already under pressure from
Commonwealth cuts, and we won't have bar of it.
But if the Commonwealth Government
wants to go out and demonise people and pretend that they're doing good work in
this space, let them do it somewhere else
because all it will do in Melbourne, and Victoria, is drive people more into
disadvantage.[193]
Schedule
15—Targeted compliance framework
Quick guide to Schedule 15
Schedule 15 amends the SSA Act, the Farm
Household Support Act and the SS Act to introduce a new two-phase job
seeker compliance framework.
In the first phase a payment suspension will be imposed to
ensure re-engagement by the majority of job seekers.
In the second phase, jobseekers who repeatedly fail to
comply with their employment pathway plan requirements, with no underlying
cause, will face stronger penalties with graduated loss of income support
payments culminating in payment cancellation for four weeks for the most
non-compliant jobseekers.
|
Commencement
The amendments in Schedule 15 to the Bill commence on the
later of 1 January 2018 and the day after Royal Assent.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 15 is a saving of $204.7 million.[194]
Background
Schedule 15 gives effect to a measure that was announced
as a part of the 2017–18 Budget.[195]
The Government has for some time been dissatisfied with
the current job seeker compliance system, and, in particular, the system of
connection and reconnection failures.
Current
compliance framework
Where a job seeker fails, without reasonable excuse, to
attend an appointment with their employment services provider, this constitutes
a connection failure. Currently, a connection failure does not result in an
immediate financial penalty.[196]
Instead, the job seeker’s payment is suspended. Once the job seeker contacts or
is contacted by Centrelink and agrees to attend a further appointment, their payment
is restored from the date that it was suspended (that is, they are fully back
paid). If the job seeker does not agree to attend the further appointment, it
is booked regardless and their payment remains suspended.
If the job seeker fails to attend the further appointment
without a reasonable excuse, this results in a reconnection failure and the
suspension of their payment until they comply with the reconnection
requirement. During a reconnection failure period, a person accrues a penalty
equivalent to their daily rate of payment for each day of the reconnection
failure period—that is, they are not back paid upon meeting their requirement.[197]
As the Government sees it, the above arrangements provide
insufficient incentive for job seekers to comply with their mutual obligation
requirements.[198]
It maintains that a small number of job seekers are repeatedly missing their
appointments but agreeing to attend a re-scheduled appointment and thereby
avoiding any financial penalties. The Government’s preference is for immediate
penalties to apply to job seekers who fail to attend appointments without
having a reasonable excuse.
The Government has also argued that the current
arrangement under which job seekers are able to have their income support
non-payment period for serious failures waived through participating in a
compliance activity means that there is insufficient deterrent to the
commission of such failures.
In short, the Government insists that a proportion of job
seekers are ‘wilfully and systematically gaming the welfare system with no
intention of working, but at present avoid any financial penalties’.[199]
The Government has previously sought to deal with the
above perceived failings through measures contained in three different Bills.[200]
These aimed to apply more immediate penalties; stop eight-week non-payment
penalties for failures to accept an offer of suitable employment from being
waived; and, only allow persistently non-compliant job seekers one opportunity
to have their non-payment period waived while in receipt of an activity tested
income support payment.
As a part of the 2017–18 Budget, the Government determined
not to proceed with the measures in the Social Security Legislation Amendment
(Further Strengthening the Job Seeker Compliance Framework) Bill 2015 (which
lapsed on the prorogation of Parliament on 17 April 2016), but rather to
introduce a new compliance framework.[201]
Proposed
compliance framework
Under the new framework, to be introduced from 1 July
2018, there are to be two compliance phases.[202]
In the first phase a payment suspension will be imposed to
ensure re-engagement by the majority of job seekers. In the second phase,
jobseekers who repeatedly fail to comply with their employment pathway plan
requirements, with no underlying cause will face stronger penalties with
graduated loss of income support payments: a loss of 50 per cent of a
fortnightly payment for the first failure, 100 per cent of a payment for the
second failure and cancellation of payment for four weeks for a third failure.
Where a job seeker fails to accept an offer of suitable
work, they will have their payment cancelled for four weeks, irrespective of
which phase they are in.
Schedule 15 makes the legislative changes necessary to
enable the above arrangements. These new arrangements will apply to all job
seekers with participation requirements, with the current job seeker compliance
framework to apply to declared program participants.
Policy position of non-government parties/independents
The Australian Labor Party (Labor) has expressed concerns
with the proposed new targeted compliance framework:
We are worried that vulnerable Australians may be pushed into
poverty, homelessness and potentially crime as a result of some [of] these
changes. The Government’s proposal could see vulnerable jobseekers made subject
to significant financial penalties.
This could include the loss of 50 per cent of a fortnightly
payment for their first noncompliance, 100 per cent of their fortnightly
payment for a second non-compliance, and cancellation of their payment for a
third non-compliance, with a four-week exclusion from re-applying.
We are concerned about possible unintended consequences of
this measure.
The truth is the Turnbull Government is failing to create
jobs and training opportunities for many Australians.
There is only one job available for every 10 applicants
locked out of paid work or who want more paid work.
Of course, people that can work should work, but maligning
jobseekers is not the way to get them into the workforce.
Job programs like Work for the Dole are failing under the
Turnbull Government.
They should focus on fixing those to support people looking
for work.
Australians looking for work need to be properly supported to
get a job, not demonised.
The Turnbull Government has a terrible record in this policy
area, just look at the Centrelink robo-debt debacle.
That’s why Labor wants to see this legislation carefully
examined by a Senate Inquiry.[203]
Labor has in the past been critical of Government attempts
to remove waiver provisions for job seekers who commit a serious failure, as
have the Australian Greens (the Greens). Their positions are summarised in the
Bills Digest for the Social Security Legislation Amendment (Stronger Penalties
for Serious Failures) Bill 2014.[204]
Further details are provided in their dissenting reports which are a part of
the report by the Senate Education and Employment Legislation Committee on the
Bill. Both Labor and the Greens were strongly opposed to the measure.
Key issues
and provisions
Current compliance failures
Division 3A in Part 3 of the SSA Act contains the
current compliance framework which applies to recipients of participation
payments. These are Newstart Allowance, Youth Allowance for persons who are not
apprentices or full-time students, Parenting Payment for persons who have
participation requirements and special benefit for certain visa holders.
Under Division 3A there are currently five types of
compliance failure—no show no pay failures, connection failures, reconnection
failures, serious failures and non-attendance failures all of
which are set out in Division 3A of Part 3 of the SSA Act. The following
is a brief summary of the penalty structure of the current job seeker
compliance framework.
As its name implies, a no show no pay failure
enables a job seeker to have their payment suspended immediately where they
either fail to attend or behave appropriately at a required appointment or job
interview.[205]
The suspension continues until they attend a re-scheduled appointment, with no
back-payment for the period in which they do not attend the appointment. Rent
assistance and other non-participation-related add-on payments are not affected
by the penalty.
A connection failure occurs where a job
seeker, without reasonable excuse, fails to enter into an Employment Pathway
Plan, comply with the requirements of such a plan, or attend compulsory
employment-related activities.[206]
There is no immediate penalty for a connection failure; instead, the job
seeker’s income support payment is immediately suspended and they are required
to comply with a reconnection requirement. Typically, this would entail
attending a re-scheduled appointment or resuming the relevant activity.
If the job seeker attends the rescheduled appointment or
resumes the activity—that is, meets their reconnection requirement—then their
income support payment is reinstated and they are back-paid any income support
that was withheld as a result of the suspension. If a job seeker fails to meet
their reconnection requirement without a valid excuse then this amounts to a reconnection
failure and sanctions apply.[207]
For every day that a job seeker fails to meet their reconnection requirement,
they incur a penalty equivalent to their daily rate of income support payment.
A job seeker commits a serious failure where
they are persistently non-compliant with their participation obligations
(committing three connection, reconnection or no show no pay failures during a six-month
period) or refuse or fail to accept an offer of suitable employment.[208]
The penalty for a serious failure is an eight-week income support non-payment
period.[209]
Before a serious failure is imposed for persistent non-compliance a job seeker
is referred for a Comprehensive Compliance Assessment (CCA).[210]
During this assessment, a Department of Human Services social worker looks at
why the job seeker has been failing to meet their requirements and identifies
any barriers to employment. The CCA report thus seeks to establish whether the
non-compliance was persistent and deliberate or the job seeker is in need of
more appropriate participation requirements and/or greater assistance in
complying with their participation requirements.
A job seeker may also incur an eight-week non-payment
penalty if they are unemployed due to their misconduct as a worker or
voluntarily leave a suitable job (unless the voluntary act is reasonable).[211]
For new claimants, this eight-week non-payment period is effectively a preclusion
period rather than a penalty, as they will not have been granted payment yet.
The eight-week non-payment period for serious failures may
be waived if the job seeker agrees to undertake a Compliance Activity
(generally 25 hours per week for eight weeks of Work for the Dole) or the job
seeker does not have the capacity to undertake a Compliance Activity and
serving an eight-week non-payment period would cause financial hardship (a job
seeker who has less than $2,500 in liquid assets ($5,000 for a couple or for a
job seeker with children) is considered to be in financial hardship). Job
seekers subject to a preclusion period cannot end this period by undertaking a
Compliance Activity, although some vulnerable job seekers who are in hardship
can have the penalty waived.
A non-attendance failure occurs where a job
seeker, without reasonable excuse, fails to attend an appointment or fails to
give prior notice of the reasonable excuse if it was reasonable to expect them
to do so.[212]
For every day that a job seeker fails to attend the relevant appointment, they incur
a penalty equivalent to their daily rate of income support payment.
With the changes made under Schedule 15, the above job
seeker compliance framework is to apply to declared program participants
(introduced to the Social Security Act 1991 under proposed Schedule 13
of the Bill), with the new compliance framework, described below, to apply to
all other recipients of participation payments.
Item 13 of Part 2 of Schedule 15 renames the
heading of Division 3A of Part 3 so that it applies a compliance framework to
declared program participants. Those persons will be subject to the existing
compliance framework which is set out in Division 3A of Part 3 of the SSA
Act as discussed above.[213]
New compliance failures
Item 1 in Schedule 15 to the Bill inserts proposed
Division 3AA—Compliance with participation payment obligations: persons other
than declared program participants into the SSA Act to introduce a
new job seeker compliance framework. Proposed Division 3AA will apply to
all recipients of participation payments other than declared program
participants.
Proposed sections 42AC, 42AD and 42AE introduce
three new categories of compliance failure—mutual obligation
failures, work refusal failures and unemployment
failures, respectively.
A person who is receiving a participation payment commits
a mutual obligation failure under proposed section 42AC of
the SSA Act where they fail to: attend or be punctual for a required
appointment or activity, contact the Department where required, provide required
information to the Secretary, complete a required questionnaire or undergo a
required examination, give a sample if they are a drug test trial pool member,
enter into an Employment Pathway Plan,[214]
undertake adequate job search efforts, act in an appropriate manner during a
required appointment or activity, or, attend a job interview or act on a job
opportunity when requested to do so by an employment services provider. Proposed
subsections 42AC(2) and (3) provide that the Secretary may, by legislative
instrument, determine what constitutes undertaking adequate job search
efforts. The Scrutiny of Bills Committee considered that such a significant
matter should be included in primary legislation unless a sound justification
for the use of delegated legislation is provided. Accordingly, the Committee
has requested the Minister to provide advice as to why it is considered
necessary to leave this matter to delegated legislation.[215]
A person who is receiving a participation payment commits a work refusal
failure under proposed section 42AD where they refuse or fail to
accept an offer of suitable employment. As noted above, such conduct currently
constitutes a serious failure under paragraph 42N(1)(b) of the SSA Act.
A person who is receiving a participation payment commits
an unemployment failure under proposed section 42AE where
they become unemployed as a result of a voluntary act or misconduct. If the
Secretary is satisfied that the voluntary act was reasonable, then a failure is
not applied. The unemployment failure is equivalent to a serious failure under
existing subsections 42S(1) and (2). However, unlike the current arrangement
for serious failures, there is no exemption within proposed Division 3AA
for recipients of Parenting Payment.
Acting in an inappropriate manner
A majority of the mutual obligation failures listed above
already constitute compliance failures under the SSA Act. However,
the provision that a person who is receiving a participation payment may commit
a mutual obligation failure under proposed paragraph 42AC(1)(g) where
they are determined by the Secretary to have acted in an inappropriate manner
is new.
This is not the first time that the Government has tried
to impose a sanction on a job seeker who is alleged to have acted in an inappropriate
manner. A similar measure was previously contained in the Social Security
Legislation Amendment (Further Strengthening Job Seeker Compliance) Bill 2015
(2015 Bill) which lapsed when the Parliament was prorogued prior to the Federal
election in 2016.[216]
The 2015 Bill would have imposed an immediate suspension in circumstances where
job seekers act in an inappropriate manner such that the purpose of required
appointments is not met. In that case, the Government intended that the
suspension would continue until they attend a re-scheduled appointment and
behave in a manner deemed to be appropriate, with no back-payments for the
period in which they fail to attend the appointment and behave appropriately.[217]
In relation to the 2015 Bill, the Scrutiny of Bills Committee
expressed its concern that, without the matters to be considered by the
Secretary when deciding whether a job seeker had acted in an inappropriate
manner at an appointment having been included in the primary legislation, or a
requirement for the Secretary to make a legislative instrument that spelled
these matters out, the Secretary would have ‘a broadly framed power to
determine what constitutes inappropriate behaviour at an appointment’.[218]
The Human Rights Committee expressed similar reservations
in its review of the 2015 Bill which are equally relevant to this Bill.
It observed that the Bill did not provide any guidance as
to what constituted inappropriate behaviour, instead leaving such judgements to
the providers of employment and related services. In the absence of statutory
guidance, the Human Rights Committee argued that the Bill could ‘result in
individuals losing social security benefits in circumstances which are unfair
or unreasonable’.[219]
Actions for new compliance failures
Proposed Subdivision C in Division 3AA of Part 3 of
the SSA Act sets out the compliance action that applies for mutual
obligation failures (proposed section 42AF), work refusal
failures (proposed section 42AG) and unemployment failures
(proposed section 42AH). Proposed Subdivision D of Division 3AA sets out
the effect of taking that relevant compliance action.
In the case of a mutual obligation failure,
the job seeker is to have their payment suspended according to the terms
stipulated at proposed section 42AL. The payment is suspended from the
instalment period in which the job seeker commits the failure until they comply
with a reconnection requirement—called the payment suspension period.
The job seeker must be notified of the reconnection requirement and the effect
of not complying with it under proposed subsection 42AM(2). If the job
seeker complies with their reconnection requirement,[220]
their payment will be resumed and they will receive back pay for the payment
suspension period.[221]
If the job seeker does not comply with the reconnection requirement within four
weeks of having been notified of it, their payment will be cancelled.[222]
However, if the job seeker has committed multiple mutual
obligation failures without a reasonable excuse, they will be subject
to escalating penalties.[223]
For the first subsequent failure they will have their payment reduced by half[224]
and for the second lose it entirely for the instalment period in which the
failure is committed.[225]
The payment reduction arrangements are to be spelled out in a legislative
instrument made by the Minister under proposed subsection 42AR(1).
For the third failure the job seeker will have their
payment cancelled according to the proposed section 42AP of the SSA
Act. The job seeker will have their payment cancelled from the start of the
instalment period in which they commit the failure and be subject to a four-week
post-cancellation non-payment period. However, they will retain access
to concession cards and any benefits paid under the FA Act.[226]
The Government has described the above ‘three strikes’
arrangements as being similar to the drivers’ licence scheme.[227]
The language used in describing the arrangements has also been likened to the
‘three strikes’ (and you’re out) rhetoric that is used in relation to criminal
sentencing.[228]
One advantage of this aspect of the new compliance
framework is that it is, like the drivers’ licence system, relatively simple
and likely to be widely understood. This could potentially help to reduce the
incidence of non-compliance where some job seekers simply do not grasp ‘the
rules’.
However, as is the case for mandatory sentencing laws, a
three strikes system would appear on its face to reduce some of the discretion
allowed to the Secretary under current arrangements. This could result in some
job seekers being subject to more severe penalties that might otherwise have
been the case. Relatedly, for some disadvantaged job seekers the prospect of
increasing penalties might not serve as a deterrent because they are
experiencing some form of crisis. While it is the Government’s intention that
genuine job seekers who are having difficulty meeting their requirements should
not enter the ‘three strikes’ phase, there is no guarantee that this will be
the case. Much will depend on the quality of assessments undertaken to
determine if job seekers have undisclosed issues that are impeding their
ability to comply with their mutual obligation requirements.
Where a job seeker commits a work refusal failure
their payment is suspended until they comply with a reconnection
requirement—the terms of which are the same as for mutual obligation failures,
summarised above. As such, upon complying with their reconnection requirement,
the job seeker will receive back pay. However, if the job seeker does not have
a reasonable excuse for the failure,[229]
they will have their payment cancelled and be obliged to serve a four-week post-cancellation
non-payment period.[230]
Job seekers who commit an unemployment failure
will have their payments cancelled and a four-week post-cancellation
non-payment period imposed.[231]
If they received relocation assistance in the six months prior to committing
the failure, job seekers will incur a six-week post-cancellation non-payment
period. Job seekers who have made a claim for but are not receiving a
payment and who commit an unemployment failure are similarly subject to a four-
or six-week post-cancellation non-payment period.
Removal of waiver provisions
The introduction of payment cancellation and a four-week post-cancellation
non-payment period for multiple mutual obligation failures and work
refusal failures with no reasonable excuse reduces the severity of the
current penalty for a serious failure of eight weeks’ non-payment. However,
under the proposed new arrangements, job seekers will no longer have the
possibility of having their penalty waived.
Section 42NC of the SSA Act currently provides that
if the Secretary determines that a person has committed a serious failure, the
Secretary must also determine that the non-payment period will apply. There is
one exception, with two parts. The first is that the Secretary is satisfied
that the job seeker does not have the capacity to undertake any serious failure
requirement, for example, ‘because they now have significant caring responsibilities,
or if undertaking the activity would aggravate an existing health condition’.[232]
The second is that the Secretary is satisfied that serving the penalty would
cause them to suffer severe financial hardship.[233]
The procedures for serious failures which were introduced
by the Rudd-Gillard Government in 2009 enabled job seekers to have the eight-week
income support non-payment period waived or brought to an end early by
complying with a serious failure requirement.[234]
Job seekers are currently given the option of participating in an activity
similar to work experience—a Compliance Activity—for at least 25 hours a week
for the eight-week period, rather than losing their payment.[235]
The Rudd-Gillard Government also introduced a
comprehensive compliance assessment (CCA) for job seekers who had incurred
three participation failures within a six-month period and were thus
potentially subject to an eight-week non-payment period. Essentially, this
assessment was to determine if a job seeker had been wilfully non-compliant, or
if they were experiencing extreme disadvantage that had impacted on their
ability to comply with their participation requirements. Under the previous
compliance system, where a job seeker had committed three failures this
automatically resulted in an eight-week non-payment period, with no discretion
given to employment services providers or Centrelink.
The Rudd-Gillard Government changes to arrangements for
serious failures were made partly in response to submissions to the 2008 Employment
Services Review which raised concerns about the impact on vulnerable job
seekers of imposing eight-week non-payment periods.
Under this Bill, those arrangements will remain in place
for declared program participants only. All other participants are subject to
the new ‘three strikes’ compliance framework. The rationale for the tougher
stance is that the Government argues that too many job seekers are having their
penalties waived, and that this ‘has undermined the effectiveness of these
penalties to the extent that they no longer provide a deterrent to job seekers
who persistently fail to meet their requirements’.[236]
However, in its submission to the Community Affairs
Committee inquiry into the Bill, the Australian Council of Social Service
commented as follows:
The proposed system relies very heavily on drawing a clear
distinction between people who are willing to comply but faced difficulties,
and people who wilfully and repeatedly avoid activity requirements. Our years
of experience with many different compliance systems has taught us that
distinctions are in fact more blurred, people's circumstances do change, and
many vulnerabilities go unreported. Discretion to tailor responses to
non-compliance is essential to ensure that any compliance system remains
humane. It is required to maintain relationships between the person receiving
income support and their employment service provider, and prevent harsh and
detrimental effects on a person's health and well-being.[237]
The Human Rights Committee has argued:
While the statement of compatibility provides information as
to the percentage of cases in which a waiver has been applied, the assessment
does not establish that the removal or limitation of the waiver will, of
itself, provide a deterrent against non-compliance with job seekers'
obligations. In particular, the figures
provided on the proportion of waivers granted are not accompanied by any basis
to conclude that these were inappropriate, excessive or misused. It is
therefore unclear how limiting the availability of a waiver on the ground of a
job seeker's severe financial hardship, would achieve the stated objective of
the measures.[238]
It should be noted that under the new arrangements the
Secretary will not be required to conduct a CCA before determining that a
person has committed persistent mutual obligation failures, as is currently the
case under Section 42M of the SSA Act. Instead:
... administrative arrangements will ensure that job seekers
will need to have committed multiple failures without a reasonable excuse before
they can be determined to be persistently non-compliant, and their provider and
the Department of Human Services (DHS) will conduct checks to ensure the job
seeker does not have any undisclosed issues that are affecting their ability to
comply, and that their employment pathway plan is suitable for their
circumstances. The factors that the Secretary must consider as constituting
persistent non-compliance will be included in a legislative instrument.[239]
No payment pending merits review
Sections 131 and 145 of the SSA Act provide that if
an adverse decision is made in relation to a Social Security payment which
depends on the exercise of discretion or the holding of an opinion (or which
would result in the application of the compliance penalty period), and a person
has applied for merits review of that decision, the secretary may declare that
the payment is to continue pending the outcome of the review.
Items 25 and 27 of Schedule 15 to the Bill amend
sections 131 and 145 of the SSA Act respectively to exclude decisions
made under proposed Division 3AA from those sections. As the Explanatory
Memorandum is silent as to the reason for this omission the Scrutiny of Bills
Committee has requested the Minister to provide advice as to ‘why it is
considered necessary and appropriate to remove the Secretary's ability to
ensure that certain welfare payments continue to be paid pending the outcome of
merits review’.[240]
Other
provisions
Proposed Sections 42AI and 42AJ set out the
reasonable excuse arrangements that apply to the new compliance failures. Proposed
Section 42AI stipulates that the Secretary must by legislative instrument
determine the matters that must be taken into account and not taken into
account in deciding whether a job seeker has a reasonable excuse for committing
a mutual obligation or work refusal failure.
Proposed Section 42AJ sets out the conditions under
which excuses for mutual obligation failures may or may not be
considered reasonable. In particular, proposed subparagraph 42AJ(3)(b)(i)
the job seeker is required to notify the Department or the relevant employment
services provider of a failure to attend or be punctual for a required activity
or appointment before the start of the activity or appointment.[241]
The requirement that job seekers give advance notification
of an inability to attend an activity or appointment can sometimes be difficult
to meet, especially for disadvantaged job seekers. Importantly, proposed
subsection 42AJ(1) of the SSA Act provides that an excuse cannot
be considered a reasonable excuse for a mutual obligation failure unless:
- the
job seeker has given prior notification or
- the
Secretary is satisfied that there were circumstances in which it was not
reasonable to expect prior notification.
Proposed Section 42AK provides that proposed sections
42AF, 42AG and 42AH do not limit each other; that is, a job seeker can
commit and be sanctioned for more than one type of compliance failure at the
same time.
Proposed section 42AQ provides that a job seeker to
whom a participation payment is not payable is taken to be receiving that
payment for that period for the purposes of three specified provisions. One of
those is sections 63 and 64.[242]
According to the Explanatory Memorandum to the Bill:
This section would ensure that section 63 and 64 [of the SSA
Act], which allow the Secretary to send certain notices requiring persons
receiving payments to do certain things, remain effective during this period.
This is to ensure that a jobseeker continues to meet any relevant requirements
that might apply under section 63 or 64 during a period of non-pay ability.[243]
Another is for the purposes set out by the Minister in a
legislative instrument.[244]
To that end, proposed section 42AR of the SSA Act requires the
Minister to determine by legislative instrument the circumstances in which the
Secretary must, or must not, be satisfied that a person has persistently
committed mutual obligation failures, the circumstances in which the Secretary
must make a determination that a person's participation payment for an
instalment period is to be reduced; the circumstances in which the Secretary
must make a determination that a person's participation payment is cancelled;
and, the circumstances in which a determination is to be made reducing
instalments of participation payment for mutual obligation failures. As such,
the legislative instrument will spell out the Intensive Compliance Phase
arrangements outlined above; that is, that when a job seeker has committed
persistent mutual obligation failures with no reasonable excuse they will lose
50 per cent of their payment for the first subsequent failure, 100 per cent for
the second failure, and have their payment cancelled for the third failure.
It is worth noting that the new job seeker compliance
framework relies heavily on the use of legislative instruments. The Scrutiny of
Bills Committee’s consistent position on such matters is that significant
concepts relating to a legislative scheme should be defined in primary legislation
(or at least in legislative instruments subject to Parliamentary disallowance,
sun setting and tabling) unless a sound justification for using
non-disallowable delegated legislation is provided. In this case, the Scrutiny
of Bills Committee noted that ‘in relation to proposed section 42AR, no
information is given as to why it is appropriate to include these matters in
delegated legislation’.[245]
Part 2 of Schedule 15 contains consequential amendments
relating to the Farm Household Support Act, SS Act and SSA
Act. Part 3 of Schedule 15 contains application and transitional
provisions. These ensure that, if a declared program participant committed a
compliance failure under the old compliance rules, those rules and sanctions
still apply following the introduction of the new job seeker compliance
framework. Upon commencement of the new arrangements, the new compliance rules
will apply to all relevant job seekers who are non-declared program
participants. Non-payment periods imposed under the old compliance rules that
have not ended before the commencement of the new rules (the date the Act
receives the Royal Assent) end immediately before the commencement of the new
rules.
However, penalty amounts resulting from a determination
under the old rules will continue to be deducted. Where this is the case and
the job seeker’s payment is reduced to nil for an instalment period, the job
seeker cannot incur a penalty under the new rules for a mutual obligation or
work refusal failure.
Concluding
comments
The proposed job seeker compliance arrangements are more
stringent that those currently in place. Under the new system, all job seekers
who commit a compliance failure without reasonable excuse will be subject to an
immediate sanction. This arrangement, along with the removal of penalty waivers
should reduce the gaming of the system by a very small number of job seekers.
Ideally, the system of escalating penalties will serve its intended screening
function, with only wilful and persistently non-compliant job seekers being
penalised, and not those who are genuinely struggling to meet their
requirements, through no fault of their own.
Schedule 16—Streamlining tax file number collection
Quick guide to Schedule 16
The amendments in Schedule 16 to the Bill repeal existing
provisions of the SSA Act which empower the Secretary to request a
person to provide their tax file number; and allow the person 28 days in
which to do so.
Instead, a request to provide a tax file number and/or
relevant thirds party’s tax file number will be part of a claim for social
security payment or senior’s health card. The amendments operate to prevent
payment or provision of a health card until the request is satisfied.
|
Commencement
If the Social Services Legislation Amendment (Welfare
Reform) Act 2017 receives Royal Assent before 1 November 2017—then the
amendments in Schedule 11 to the Bill commence on 1 January 2018. Otherwise,
the amendments commence on the first 1 April, 1 July, 1 October or 1 January
that occurs at the end of two months after Royal Assent.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 16 is an expense of $5.5 million.[246]
Background
Recipients of income support payments have been asked to
provide their tax file numbers to Centrelink since the 1990’s. Tax file numbers
are needed to facilitate data matching to combat fraud and overpayments.
The Bill removes the 28-day period within which claimants
and recipients must respond to a request for a tax file number. This would
ensure that tax file numbers are provided as part of a claim for payment or the
authorisation to seek a tax file number from the ATO is provided at that time.
The rationale for the change given in the Department of
Social Services submission to the Senate inquiry into the Bill is:
The 28 day grace period is no longer needed as applicants who
do not have their TFN on hand can choose to have the Department of Human
Services (DHS) obtain the TFN directly from the Australian Taxation Office
(ATO). Those yet to be issued with a TFN can authorise DHS to obtain their TFN
directly from the ATO, and either submit a TFN application form to DHS for
forwarding to the ATO, or apply for a TFN online through the ATO website prior
to claiming.[247]
Position of major interest groups
The National Social Security Rights Network had this to
say about the proposed change:
On the face of it, this is a sensible measure to improve the
efficiency of the claim process by allowing the TFN collection to be done as
part of a single transaction. Given that a person who does not know or have a
TFN can make a declaration to this effect as part of the claim, this measure
should not delay their claim.[248]
Key Provisions
Item 1 repeals and replaces sections 75–77 of the SSA
Act. Proposed sections 75–77 are in large part a redrafting of the existing
sections. The major change included in this redrafting is the introduction of a
requirement that tax file numbers should be provided when a claim is made in proposed
section 75.
Proposed section 76 sets out the ways that this
requirement can be satisfied and proposed subsection 77(1) sets out in
table form the consequences of not giving a tax file number as follows:
Table 7: Consequences of not satisfying a request for a
tax file number
Item |
if request under section 75 was given to ... |
the consequence is ... |
1 |
a person who was making a claim for a Social Security
payment |
the Social Security payment is not payable |
2 |
a person who was making a claim for seniors health card |
the Secretary must not determine the claim |
3 |
a person who had made a claim for, or was receiving, a
Social Security payment |
at the end of 28 days after the Secretary made the
request, the Social Security payment ceases to be payable to the person |
4 |
a person who made a claim for, or was the holder of, a
seniors health card |
at the end of 28 days after the Secretary made the
request, the Secretary must determine that the card is to be cancelled. |
Source: SSA Act, proposed subsection 77(1)
inserted by item 1 of Part 1 in Schedule 16 to the Bill.
However, proposed subsection 77(4) of the SSA
Act sets out a limited exemption where the Secretary has requested
information about a third party’s tax file number and the Secretary is
satisfied that the recipient of that request does not know the other person's
tax file number and is not able to request a tax file number from the
Commissioner of Taxation in relation to that person.
Schedule
17—Information management
Quick guide to Schedule 17
The amendments in Schedule 17 relate to the information
gathering and protection provisions in the family assistance law, PPL Act,
social security law and Student Assistance Act. They aim to:
- allow
information or documents obtained about a person under the coercive
information gathering provisions in the course of an administrative action,
to be used in subsequent investigation and prosecution of criminal offences
and
- insert
limited abrogation of the privilege against self-incrimination provisions.
|
Commencement
Items 1–20 of Schedule 17 to the Bill commence on the
later of immediately after the commencement of items 21–78 (as set out below)
and 2 July 2018.[249]
If the Social Services Legislation Amendment (Welfare
Reform) Act 2017 receives Royal Assent before 1 November 2017—then the
amendments in items 21–78 of Schedule 17 to the Bill commence on 1
January 2018. Otherwise, the amendments commence on the first 1 April, 1 July,
1 October or 1 January that occurs at the end of two months after Royal Assent.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 17 is nil.[250]
Key
provisions—FAA Act
Power to
obtain information
Items 1–19 amend the FAA Act. Part 6 of the FAA
Act is about information gathering. Within Part 6, section 154 of the FAA
Act contains the general power to obtain information. This is a broad power
which authorises the Secretary to require a person to give information, or
produce a document that is in the person’s custody or under the person’s
control in order to establish whether a person is entitled to family assistance
or child care benefit, including the amount that is or was payable. Item 9 inserts
proposed subsection 154(6) so that the Secretary may also require a
person to give information, or produce a document or records, to a specified
agency.
Items 6–8 of Schedule 17 omit references to
information or documents that are in the person’s custody or under the person’s
control.
Item 5 inserts proposed section 153A into
the FAA Act so that the Secretary needs a reasonable belief that a
person will be able to give information, produce documents or produce records,
in order to require a person to do so.
According to the Explanatory Memorandum to the Bill proposed
subsection 154(6) ‘will allow a notice to be issued to gather information
to investigate the circumstances where a potential overpayment is being
quantified and where there is potential for fraud to be identified’.[251]
Under the amendments, information provided by a person in response to a request
by the Secretary under section 154 of the FAA Act can be used in an investigation
to identify offences against the Act:
Any information gathered may subsequently be used in
prosecutions of those offences. This has always been the case; nevertheless, in
the interests of clarity and transparency in the operation of the Secretary’s
powers to request information, it makes this express.[252]
Obtaining
information about debtors
Section 156 of the FAA Act empowers the Secretary
to obtain information from third parties about debtors. Item 11
repeals and replaces section 156. Proposed section 156 is drafted more
broadly than at present in that it empowers the Secretary to require a person
to give information, or produce a document, to a specified agency where the
information or document would help that specified agency locate a person who
owes a debt to the Commonwealth under or as a result of the FAA Act or is
relevant to the debtor’s financial situation.
Notice
provisions
Under existing section 158 a person who is required to
provide information must be given written notice of the requirement. The
section sets out the manner of giving the notice and form it is to take. Item
12 inserts proposed subparagraph 158(2)(b)(ia) into the FAA Act
so that the notice must contain a description of the information, document or
records to which the requirement relates. In addition, item 14 repeals and
replaces subsection 158(5) so that where the notice requires the person to
appear before an officer, the notice must specify a time and place at which the
person is to appear and that the person may be accompanied by a lawyer.
Self-incrimination
Item 16 of Schedule 17 to
the Bill inserts proposed section 159B
into the FAA Act. Proposed subsection 159B(1) provides
that a person is not excused from giving information, or producing a document
or records, on the ground that the information, or production of the document
or records, might tend to incriminate the person or expose the person to a
penalty.
However, proposed subsection 159B(2) provides a limited
protection to an individual with respect to:
- the
information given or document or records produced
- giving
the information or producing the document or records and
- any
information, document or thing obtained as a direct or indirect consequence of
giving the information or producing the document or records.
The above are not admissible in evidence against the
individual in criminal proceedings. However, there is an exception to the
protection. It does not apply to:
- proceedings
for an offence against subsection 159(1)[253]
- proceedings
for an offence against section 137.1 or 137.2 of the Criminal Code[254]
- proceedings
for an offence against Division 145 of the Criminal Code[255]
or
- proceedings
for an offence against section 177.[256]
Relationship
with other laws
Currently, subsection 153(2), provides that Division 1 in
Part 6 does not require a person to give information or produce a document or
records to the extent that in doing so the person would contravene a law of the
Commonwealth (other than a law of a Territory). Item 4 in Schedule 17 to
the Bill repeals that subsection.
However, under Item 19, the subsection is
re-inserted as proposed subsection 160(2) of the FAA Act.
Other
provisions
Items 21–36 amend the PPL Act. The items
insert provisions in equivalent terms to those discussed above to:
- require
the Secretary to have a reasonable belief that a person will be able to give
information, produce documents or produce records, in order to require a person
to do so[257]
- obtaining
information about a person who owes a debt to the Commonwealth[258]
- updates
to the manner and form of notices[259]
- abrogating
the privilege against self-incrimination[260]
and
- updating
the relationship with other laws.[261]
Items 38–57 amend the SSA Act. The items
insert provisions in equivalent terms to those discussed above to:
- require
the Secretary to have a reasonable belief that a person will be able to give
information, produce documents or produce records, in order to require a person
to do so[262]
- obtaining
information about a person who owes a debt to the Commonwealth[263]
- updates
to the manner and form of notices[264]
- abrogating
the privilege against self-incrimination[265]
and
- updating
the relationship with other laws.[266]
Amendments
to the Student Assistance Act
Items 59–77 amend the Student Assistance Act.
The items insert provisions in equivalent terms to those discussed above to:
- require
the Secretary to have a reasonable belief that a person will be able to give
information, produce documents or produce records, in order to require a person
to do so[267]
- obtaining
information about a person who owes a debt to the Commonwealth[268]
- updates
to the manner and form of notices[269]
- abrogating
the privilege against self-incrimination[270]
and
- updating
the relationship with other laws.[271]
Schedule
18—Alignment with disability discrimination law
Quick guide to Schedule 18
The amendments in Schedule 18 to the Bill align the social
security law and disability discrimination law.
|
Commencement
The provisions in schedule a team to the Bill commence on
the later of 1 January 2018 and the day after Royal Assent.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measure in Schedule 18 is nil.[272]
Key
provisions
Currently subsection 51(1) of the Disability
Discrimination Act 1992 operates to exempt the SS Act
from the general prohibition against discrimination. The exemption also extends
to a number of statutes including the VEA, Military
Rehabilitation and Compensation Act 2004 and the Safety
Rehabilitation and Compensation Act 1988.
Item 1 of Schedule 18 to the Bill amends subsection
51(1) of the Disability Discrimination Act so that the exemption include
the SSA Act and the Social Security
(International Agreements) Act 1999 and any legislative instruments
made under any of the three statutes.
Human
Rights Committee
The Human Rights Committee considered that the amendment
touches on the right to equality and non-discrimination is protected by articles
2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR)
and article 2 of the International Covenant on Economic Social and Cultural
Rights (ICESCR).
According to the Human Rights Committee:
It should be noted that section 45 of the Disability
Discrimination Act already exempts special measures “designed to assist
people who have a disability to obtain greater equality of opportunity or
provide them with benefits to meet their special needs”. An exemption therefore
is not required in order to pay benefits to people with disabilities, but would
be required for measures which negatively impact people with a disability, such
as reducing or suspending payments to those who fail to meet mutual obligation
requirements due to their disability where that disability is a drug or alcohol
dependency.[273]
The Committee considered that it is unclear from the
limited information provided in the statement of compatibility as to why such a
broad exemption is required for all social security laws. That being the case
the Human Rights Committee has sought further information from the Minister as
to how the broad exemption of all social security law is permissible under international
law, in particular why such an exemption is required in view of existing section
45 of the Disability Discrimination Act.[274]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Details
of the terms of reference, submissions to the Senate Community Affairs
Legislation Committee, and the final report (when published) are available at
the inquiry homepage.
[2]. Standing
Committee for the Scrutiny of Bills, Scrutiny
digest, 8, 2017, 9 August 2017, pp. 23–31.
[3]. The
Statement of Compatibility with Human Rights can be found at pages 136–184 of
the Explanatory
Memorandum to the Bill.
[4]. Parliamentary
Joint Committee on Human Rights, Scrutiny
report, 8, 2017, 15 August 2017, pp. 46–77.
[5]. Parliament
of Australia, ‘Social
Services Legislation Amendment (Payment Integrity) Bill 2017 homepage’,
Australian Parliament website.
[6]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[7]. Social Security
and Veterans’ Entitlements Amendment Act 1987.
[8]. Social Security
(Home Child Care and Partner Allowances) Legislation Amendment Act 1994;
C
Field, Social Security (Home
Child Care and Partner Allowances) Legislation Amendment Bill 1994, Bills digest,
11, 1994, Department of the Parliamentary Library, Canberra, 1994.
[9]. Social Security
(Parenting Allowance and Other Measures) Legislation Amendment Act 1994.
[10]. Ibid.
[11]. Social Security
Legislation Amendment (Budget and Other Measures) Act 1996; C Field, Social
Security Legislation Amendment (Budget and Other Measures) Bill 1996,
Bills digest, 39, 1996–97, Department of the Parliamentary Library, Canberra,
1996.
[12]. D
Daniel and N Hancock, Family
and Community Services Legislation Amendment (Australians Working Together and
other 2001 Budget Measures) Bill 2002, Bills digest, 159, 2001–02,
Parliamentary Library, Canberra, 2002.
[13]. Social Security
(Parenting Allowance and Other Measures) Legislation Amendment Act 1994.
[14]. C Porter (Minister for Social Services), M Cash (Minister for
Employment) and A Tudge (Minister for Human Services), A fairer welfare system that supports more people into work, media release, 9 May 2017.
[15]. National
Social Security Rights Network (NSSRN), Budget
2017: new jobseeker payment, media release, 27 May 2017, p. 2.
[16]. Australian
Council of Social Service (ACOSS), Federal
budget snapshot: social security measures, ACOSS, Sydney, May 2017.
[17]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[18]. The
information in table 1 is sourced from: Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, pp. 8–11; DSS, ‘3.4.4: WidB:
qualification and payability’, Guide to social security law, version
1.235, DSS website, 14 August 2017; Australian Government, ‘DSS payment
demographic data’, data.gov.au website, 10 July 2017.
[19]. Department
of Human Services (DHS), ‘Age
Pension if you travel outside Australia’, DHS website, 27 August 2017.
[20]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[21]. The
information in table 2 is sourced from: Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, pp. 12–20; DSS, ‘3.4.2: WP:
qualification and payability’, Guide to social security law, version
1.235, DSS website, 14 August 2017; Australian Government, ‘DSS payment
demographic data’, op. cit.; and DSS, Submission
to Senate Community Services Committee, Inquiry into the Social
Services Legislation Amendment (Welfare Reform) Bill 2017, 4 August 2017,
pp. 5–8.
[22]. DSS,
Submission
to Senate Community Services Committee, Inquiry into the Social Services
Legislation Amendment (Welfare Reform) Bill 2017, 4 August 2017, p. 8.
[23]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[24]. H
Bancroft, A
compendium of legislative changes in social security 1908–1982,
Occasional paper, 6, Department of Families, Community Services and Indigenous
Affairs (DFaCSIA), Canberra, 2006; B Dapre, A
compendium of legislative changes in social security 1983–2000, Occasional paper,
13, DFaCSIA, Canberra, 2006.
[25]. The
information in table 3 is sourced from: Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, pp. 21–36. DSS, ‘3.4.9: BVA:
qualification and payability’, Guide to social security law, version
1.235, DSS website, 14 August 2017.
[26]. J
Macklin (Shadow Minister for Families and Social Services), Labor
listens to expert advice on drug testing trial, media release, 7 August
2017.
[27]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[28]. Ibid.
[29]. The
information in table 4 is sourced from: Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, pp. 37–43; DSS, ‘3.6.5: SA:
qualification and payability’, Guide to social security law, version
1.235, DSS website, 14 August 2017; Australian Government, ‘DSS payment
demographic data’, op. cit.; and DSS, Submission
to Senate Community Services Committee, Inquiry into the Social Services
Legislation Amendment (Welfare Reform) Bill 2017, 4 August 2017, pp. 9–10.
[30]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[31]. The
information in table 5 is sourced from: Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, pp. 44–47; DSS, ‘3.4.3: WA:
qualification and payability’, Guide to social security law, version
1.235, DSS website, 14 August 2017; Australian Government, ‘DSS payment
demographic data’, op. cit.
[32]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[33]. The
information in table 6 is sourced from: Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, pp. 48–50; DSS, ‘3.3.1: PA:
qualification and payability’, Guide to social security law, version
1.235, DSS website, 14 August 2017; Australian Government, ‘DSS payment
demographic data’, op. cit.
[34]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[35]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[36]. Australian Government, Budget
measures: budget paper no. 2: 2005–06, p. 146.
[37]. DSS,
‘3.2.9.130:
suitable activity: voluntary work’, Guide to social security law, version
1.235, DSS website, 14 August 2017.
[38]. Ibid.
[39]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 52.
[40]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[41]. Australian Government, Budget
measures: budget paper no. 2: 2005–06, p. 146.
[42]. D
Daniels and P Yeend, Employment
and Workplace Relations Legislation Amendment (Welfare to Work and Other
Measures) Bill 2005, Bills digest, 70, 2005–06, Parliamentary
Library, Canberra, 2005, p. 23.
[43]. For
further details of current RapidConnect arrangements see DSS, ‘3.2.3.45:
RapidConnect: impact on YA payability’ and ‘3.2.1.40: RapidConnect:
impact on NSA payability’, Guide to social security law, version
1.234, DSS website, 3 July 2017.
[44]. See
ibid.; DSS, ‘3.2.1.45: exemption
from RapidConnect provisions’, Guide to social security law, version
1.235, DSS website, 14 August 2017.
[45]. Department
of Employment, Request
for tender: for employment services 2015–2020, Department of
Employment, Canberra, 2014, p. 27.
[46]. Australian
Government, Budget
measures: budget paper no. 2: 2017–18, pp. 91–91.
[47]. Under
Section 63 of the Social Security (Administration) Act 1999 a job seeker
may be required to contact the Department, attend an appointment, produce
particular requested information or undergo a medical examination, among other
things.
[48]. National
Welfare Rights Network (NWRN), Submission
to Senate Community Affairs Legislative Committee, Inquiry into the
Employment and Workplace Relations Legislation Amendment (Welfare to Work and
Other Measures) Bill 2005, 16 November 2005.
[49]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 61.
[50]. Ibid.,
p. 4.
[51]. DSS,
‘8.1.1.60:
deemed claims’, Guide to social security law, version 1.235, DSS
website, 14 August 2017.
[52]. J
Macklin (Shadow Minister for Families and Social Services), Labor
listens to expert advice on drug testing trial, media release, 7 August
2017.
[53]. NSSRN,
Budget
2017: changes to claim requirements, media release, 22 June 2017, p. 4.
[54]. ACOSS,
Federal
Budget snapshot: social security measures, May 2017.
[55]. Carers
Australia, Submission
to Senate Community Services Committee, Inquiry into the Social Services
Legislation Amendment (Welfare Reform) Bill 2017, July 2017.
[56]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[57]. E
Wincup, ‘Thoroughfares, crossroads and cul-de-sacs: drug testing of welfare
recipients’, International Journal on Drug Policy, 25(5), 2014. P Berger,
‘Science
misapplied: mandatory addiction screening and treatment for welfare recipients
in Ontario’, Canadian Medical Association Journal, 165(4), August
2001.
[58]. Office
of the Assistant Secretary for Planning and Evaluation (US), Drug
testing welfare recipients: recent proposals and continuing controversies,
US Department of Health and Human Services, October 2011. Ministry of Social
Development (NZ), ‘Drug
testing for beneficiaries with work obligations’, Work and Income New
Zealand website.
[59]. M
McCarty, G Falk, R Aussenberg, D Carpenter, Drug testing and crime-related
restrictions in TANF, SNAP, and Housing Assistance, Congressional
Research Service, Washington, D.C., 28 November 2016, p. 28.
[60]. Ibid.,
p. 1.
[61]. K
Bradley and R Rector, ‘Reforming
the food stamp program’, The Heritage Foundation website, 25 July 2012.
[62]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, 31 May 2017, p. 64.
[63]. Liberal
Party of Australia and the Nationals, Tough
on drugs, Coalition policy document, Election 2007, p. 2.
[64]. J
Howard (Prime Minister), Joint
press conference with the Treasurer, the Hon Peter Costello: Phillip Street,
Sydney, transcript, 18 November 2007.
[65]. G
Christensen (Federal Member for Dawson), No
drug test, no dole, media release, 31 May 2012.
[66]. B
Packham, ‘Drug
test the unemployed before dole, says Coalition MP George Christiansen’, The
Australian, 31 May 2012.
[67]. Australian
National Council on Drugs, ANCD
position paper: drug testing, August 2013, p. 2. The ANCD was formed to
provide independent advice to government on national drug and alcohol issues.
[68]. S
Maiden, ‘Drug
testing for the dole’, Sunday Mail, 1 June 2014.
[69]. C
Uhlmann, ‘Interview
with Kevin Andrews’, ABC AM, 2 June 2014.
[70]. G
Brandis, ‘Answer
to Question without Notice: Illicit Drugs’, [Questioner: J Lambie], Senate,
Debates, 24 November 2015.
[71]. Explanatory
notes, Welfare Reform Act 2009 (UK), Schedule
3.
[72]. L
McKinstry, ‘Welfare
reform under a Labour government? It just won't happen’, Express, 21
July 2008. Social Security Advisory Committee, No
one written off: reforming welfare to reward responsibility: the response of
the Social Security Advisory Committee, November 2011.
[73]. Explanatory
notes, Welfare Reform Act 2012 (UK), Part 2,
Section 60.
[74]. Department
for Work and Pensions, No
one written off: reforming welfare to reward responsibility: public consultation,
July 2008, p. 47.
[75]. Ibid.,
p. 49.
[76]. Ibid.
[77]. DrugScope,
DrugScope
responds to publication of Welfare Reform Green Paper, media release,
21 July 2008.
[78]. Department
of Work and Pensions, Raising
expectations and increasing support: reforming welfare for the future,
December 2008, p. 118.
[79]. Ibid.,
p. 118.
[80]. Ibid.,
p. 119.
[81]. Wincup,
‘Thoroughfares, crossroads and cul-de-sacs: drug testing of welfare recipients’,
op. cit.
[82]. Royal
College of Psychiatrists, Written evidence submitted to the Joint Committee on
Human Rights, in: Joint Committee on Human Rights,
Legislative Scrutiny: Welfare Reform Bill; Apprenticeships, Skills, Children
and Learning Bill; Health Bill, Fourteenth report of session 2008–09,
April 2009.
[83]. Wincup,
op. cit.
[84]. U
Kilkelly, The right to respect for
private and family life: a guide to the implementation of Article 8 of the
European Convention on Human Rights, Directorate General of Human
Rights Council of Europe, 2003.
[85]. Joint
Committee on Human Rights (UK), Legislative Scrutiny:
Welfare Reform Bill; Apprenticeships, Skills, Children and Learning Bill;
Health Bill, Fourteenth report of session 2008–09, April 2009, p.
18–19.
[86]. R
Tilt, ‘Report
of the Social Security Advisory Committee made under section 174(2) of the
Social Security Administration Act 1992 on the Social Security (Welfare Reform
Drugs Recovery Pilot Scheme) Regulations 2010’, Social Security Advisory
Committee, 19 May 2010, p. 6.
[87]. M
Miller, Radical
rethink on getting drug and alcohol users back to work, media release,
17 June 2010.
[88]. Explanatory
notes, Welfare Reform Act 2012 (UK), Part2,
Section 60.
[89]. The
Centre for Social Justice is a think tank closely associated with the
Conservative Party.
[90]. Centre
for Social Justice (CSJ), Ambitious
for recovery: tackling drug and alcohol addiction in the UK, CSJ,
London, August 2014, p. 26.
[91]. Ibid.,
p. 75.
[92]. Quoted
in: H Phibbs, ‘Those
on sickness benefit should accept treatment’, Conservative Home, 14
February 2015.
[93]. Ibid.
[94]. C
Black, An
independent review into the impact on employment outcomes of drug or alcohol
addiction, and obesity, December 2016, p. 14.
[95]. M
Rowland, ABC
News 24 Breakfast, TV interview, 2 June 2014.
[96]. R
Siewert, Labor
sides with Government as motion to abandon drug testing income support
recipients voted down, media release, 14 June 2017.
[97]. M
Rowland and V Trioli, ABC
News Breakfast, TV interview, ABC, 10 May 2017.
[98]. J
Lambie, ‘Questions
without notice: take not of answers: illicit drugs’, Senate, Debates,
24 November 2015, p. 8769.
[99]. M
Rowland and V Trioli, ABC
News Breakfast, TV interview 10 May 2017.
[100]. R
Lewis and A Burrell, ‘Senate
wall traps $14bn in reforms’, The Australian, 22 May 2017.
[101]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 151.
[102]. Ibid.,
p. 62.
[103]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, 31 May 2017, p. 64.
[104]. The
number of persons subject to drug testing is limited to 5,000 by the operation
of proposed subsection 63(4A) of the SSA Act (inserted by item
16 of Part 1 in Schedule 12 of the Bill).
[105]. DSS,
‘Welfare
reform: 2017 Budget’, Budget fact sheet, 2017, p. 3.
[106]. S
Ryan, ‘Answer
to a question without notice: additional answers’, [Questioner R Siewert],
Senate, Debates, 20 June 2017, p. 4339.
[107]. C
Dawson (Chief Executive Officer, Australian Criminal Intelligence Commission), Evidence
to the Parliamentary Joint Committee on Law Enforcement, Australian Crime
Commission annual report 2015–16, 14 June 2017.
[108]. Item
1 of Part 1 in Schedule 12 to the Bill inserts the definition of testable
drug into subsection 23(1) of the Social Security Act being:
methamphetamine; methylenedioxy-methamphetamine; tetrahydrocannabinol; opioids
or another substance prescribed by the drug test rules for the purposes of the
definition.
[109]. SSA
Act, proposed subsection 37(7A), inserted by item 12 in Part
1 of Schedule 12 to the Bill. .
[110]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 155.
[111]. J
O’Brien, ‘Live
cross to a press conference with Christian Porter, federal Minister for Social
Services, Alan Tudge, Minister for Human Services, and Michaelia Cash, federal
Minister For Employment’, Mornings, ABC News, 11 May 2017. Data61 is a data
innovation group within the Commonwealth Scientific and Industrial Research
Organisation (CSIRO).
[112]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill 2017,
p. 62.
[113]. Standing
Committee for the Scrutiny of Bills, Scrutiny
digest, 8, 2017, op. cit.
[114]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 63.
[115]. Ibid.
[116]. O’Brien,
‘Live
cross to a press conference with Christian Porter’, op. cit.
[117]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 63.
[118]. Ibid.
[119]. SS
Act, proposed subsection 1206XA(6).
[120]. Ibid.,
proposed section 1206XC.
[121]. Ibid.,
proposed section 1206XD.
[122]. Item
17 in Part 1 of Schedule 12 to the Bill inserts proposed subsection
64(1AA) into the SSA Act to provide that a notice to undertake drug
testing is not unreasonable.
[123]. Section
80 of the SSA Act provides that if a payment is not payable to a person,
the Secretary is to determine that the payment is to be cancelled or suspended.
[124]. For
Youth Allowance—proposed sections 549EA and 549EB inserted by item 6;
for Newstart Allowance—proposed sections 623C and 623D inserted by item
8.
[125]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 150.
[126]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, 31 May 2017, p. 64.
[127]. C
Black, An
Independent Review into the impact on employment outcomes of drug or alcohol
addiction, and obesity, December 2016
[128]. C
Porter, M Cash and A Tudge, Welfare
Reform Bill focuses on supporting people into work, media release, 22
June 2017.
[129]. C
Black, An
Independent Review into the impact on employment outcomes of drug or alcohol
addiction, and obesity, December 2016, p. 9.
[130]. National
Ice Taskforce, Final
report of the National Ice Taskforce, Department of the Prime Minister
and Cabinet (PM&C), Canberra, 2015, p. 106.
[131]. P
Whiteford, ‘Budget
2017: welfare changes stigmatise recipients and are sitting on shaky ground’,
The Conversation, 11 May 2017.
[132]. D
Speers, ‘Budget
2017 with David Speers’, Sky News, 9 May 2017.
[133]. JF
Atlanta, ‘Welfare
and drug testing: signalling as policy’, The Economist, 2 September
2011.
[134]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, 31 May 2017, p. 64.
[135]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 155.
[136]. Australian
Institute of Health and Welfare, Evaluation
of income management in the Northern Territory, Department of Families,
Housing, Community Services and Indigenous Affairs, 2010, p. 16.
[137]. O’Brien,
‘Live
cross to a press conference with Christian Porter’, op. cit.
[138]. For
example, M Davey, ‘“Ration
days again”: cashless welfare card ignites shame’, The Guardian, 9
January 2017.
[139]. SSA
Act, proposed section 64A.
[140]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[141]. See
Australian Government, Budget measures: budget paper no. 2: 2017–18, pp.
91–91; Porter, Cash and Tudge, A fairer welfare system that supports more people into work,
op. cit.; and M Cash, Helping more Australians into jobs, media
release, 9 May 2017.
[142]. Newstart Allowance, Youth Allowance (other), Special Benefit and
Parenting Payment recipients must meet activity test or participation
requirements in order to qualify, and remain qualified, for payment. Generally
speaking, these requirements demand that job seekers are actively looking for
work, accepting offers of suitable work, and improving their chances of gaining
employment.
[143]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 159.
[144]. The
matters that must be taken into account are detailed in Social Security
(Reasonable Excuse—Participation Payment Obligations)(DEEWR) Determination 2009
(No. 1).
[145]. For
Disability Support Pension the exemption are in subsections 94C(1) and 94F(1);
Parenting Payment—subsections 502F(1) and 502H(1); Youth Allowance
(other)—subsections 542A(1) and 542H(1); Newstart Allowance—subsections 603A(1)
and 603C(1); Special benefit—subsections 731E(1) and 731K(1).
[146]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 81; PM&C, ‘The
Community Development Programme (CDP)’, PM&C website.
[147]. Ibid.,
p. 162.
[148]. Ibid.
[149]. Ibid.
[150]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 85.
[151]. Ibid.,
p. 63.
[152]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[153]. See
Australian Government, Budget measures: budget paper no. 2: 2017–18, pp.
91–91; Porter, Cash and Tudge, A fairer welfare system that supports more people into work, op. cit.; and Cash, Helping
more Australians into jobs, op. cit.
[154]. SSA
Act, section 42C.
[155]. Ibid.,
section 42E.
[156]. Ibid.,
section 42H.
[157]. Ibid.,
section 42N.
[158]. Ibid.,
section 42SC.
[159]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 86.
[160]. Ibid.,
p. 85.
[161]. D
Werb, A Kamarulzaman, M Meacham, C Rafful, B Fischer, S Strathdee and E Wood, ‘The effectiveness
of compulsory drug treatment: a systematic review’, International
Journal of Drug Policy, 28, 2016, pp. 1–9; S Klag, F O’Callaghan and P
Creed, ‘The use
of legal coercion in the treatment of substance abusers: an overview and
critical analysis of thirty years of research’, Substance Use and Misuse,
40/12, 2005, pp. 1777–95; A Stevens, D Berto, V Kerschl, K Oeuvray, M van
Ooyen, E Steffan et al., ‘Quasi-compulsory
treatment of drug dependent offenders: an international literature review’,
Substance Use and Misuse, 40, 2005, pp. 269–283; T Wild, ‘Social control and coercion
in addiction treatment’, Addiction, 101, 2006, pp. 40–49; M
Broadstock, D Brinson and A Weston, The
effectiveness of compulsory, residential treatment of chronic alcohol or drug
addiction in non-offenders: a systematic review of the literature, Health
Services Assessment Collaboration (HSAC), University of Canterbury, 2008; K
Urbanoski, ‘Coerced
addiction treatment: client perspectives and the implications of their neglect’,
Harm Reduction Journal, 7, 2010.
[162]. A
Ritter, L Berends, J Chalmers, P Hull, K Lancaster and M Gomez, New
horizons: the review of alcohol and other drug treatment services in Australia:
final report, Drug Policy Modelling Program, National Drug and Alcohol
Research Centre (NDARC), UNSW, Sydney, July 2014, p. 164.
[163]. The
criteria for fully meeting demand was based on a pre-existing decision-support
tool for systems planning—the Drug and Alcohol Service Planning Model for
Australia (DA-CCP). This was determined to be the equivalent of only treating
35 per cent of all people who meet diagnostic criteria. It is important to
note, here, a distinction between unmet need and unmet demand for drug and
alcohol treatment services. In the DA-CCP, need is defined as the population
prevalence of alcohol and other drug disorders, and demand as a proportion of
that total prevalence, based on expert judgement. The expert judgement is an
assessment of the proportion of people who seek treatment but are unable to
access it. A Ritter, J Chalmers and M Sunderland, Planning for drug treatment
services: estimating population need and demand for treatment, Drug Policy Modelling
Program, National Drug and Alcohol Research Centre, UNSW.
[164]. As
a part of the abovementioned review of the drug and alcohol prevention and
treatment services sector, the NDARC researchers sought to clarify Australian
drug and alcohol treatment funding. They estimated total spending on alcohol
and other drug treatment in Australia by all jurisdictions’ health departments
in 2012–13 at $1.26 billion. The states and territories contributed the largest
share of total funding (49 per cent) with the Commonwealth providing 31 per
cent. A majority of the overall funding went towards alcohol and other drug
treatment services (39.6 per cent), followed by public hospitals (15 per cent),
private hospitals (11 per cent) and Commonwealth alcohol and other drug treatment
grants (10 per cent). Ritter et al, op. cit., pp. 66–67.
[165]. D
Henkel, ‘Unemployment and
substance use: a review of the literature (1990–2010)’, Current Drug
Abuse Reviews, 4, 2011.
[166]. Australian
Institute of Health and Welfare (AIHW), National Drug
Strategy Household Survey detailed report 2013, Drug Statistics Series no.
28, cat. no. PHE 183, AIHW, Canberra, 2014, p. 91.
[167]. Henkel,
op. cit., pp. 4–23.
[168]. S
Macdonald, C Bois, B Brands, D Dempsey, P Erickson, D Marsh, S Meredith, M
Shain, W Skinner and A Chiu, ‘Drug
testing and mandatory treatment for welfare recipients’, International
Journal of Drug Policy, 2001, p. 4; L Metsch and H Pollack, ‘Welfare reform
and substance abuse’, The Milbank Quarterly, 83(1), 2005.
[169]. Ibid.,
pp. 4–5.
[170]. Ibid.,
p. 5.
[171]. Metsch
and Pollack, op. cit., p. 71.
[172]. P
Saunders, Re-moralising
the welfare state, Occasional paper, 131, The Centre for Independent
Studies, Sydney, March 2013, p. 23.
[173]. YouGov,
YouGov
/ Daily Telegraph Survey Results, YouGov, London, 23–25 July 2008.
[174]. Queensland
Mental Health and Drug Advisory Council (QMHDAC), Communique,
QMHDAC Meeting, Brisbane, 16 June 2017.
[175]. Australian
National Council on Drugs (ANCD), ANCD
position paper: drug testing, ANCD, Canberra, August 2013.
[176]. Victorian
Alcohol and Drug Association, Drug
testing welfare recipients a false positive, media release, 10 May
2017.
[177]. Ibid.
[178]. Ibid.
[179]. Penington
Institute, Increase
in crime likely with drug testing budget announcement, media release, 9
May 2017.
[180]. A
Wodak, ‘Federal
Budget: drug testing welfare recipients is ineffective policy’, Australia
21 website, 2017.
[181]. GetUP,
Govt ignoring experts: Dr Alex Wodak AM launches campaign against mandatory
drug testing, media release, 1 August 2017.
[182]. Brotherhood
of St Laurence, Mixed
messages in new Turnbull Budget, media release, 9 May 2017.
[183]. ACOSS,
Federal
Budget snapshot: social security, ACOSS, Sydney, May 2017, p. 3.
[184]. ACOSS,
Federal
Budget snapshot: social security measures, ACOSS, Sydney, May 2017.
[185]. NSSRN,
Budget
2017: trial of compulsory random drug testing for job seekers, NSSRN,
Sydney, 2017.
[186]. W
Williams, ‘Victoria
applauded for refusing plan to drug test welfare recipients’, ProBono
News, 15 June 2017.
[187]. Fr
F Brennan, 2017–18
Budget overview, Catholic Social Services Australia, 9 May 2017.
[188]. UnitingCare
Australia, Connecting,
8 June 2017.
[189]. Melbourne
City Mission, ‘Federal
Budget 2017’, 11 May 2017.
[190]. Good
Shepherd Australia New Zealand, ‘Federal
Budget’s support of universal services undermined by divisive welfare approach’,
11 May 2017.
[191]. Samaritans,
‘Random
drug testing for Centrelink recipients’, blog post, 16 May 2017.
[192]. Royal
Australasian College of Physicians (RACP), RACP
urges Government to abandon welfare drug testing plans, media release,
31 May 2017.
[193]. J
Holman, ‘Victorian
government reject Commonwealth plan to drug test welfare recipients’, 7.30,
ABC, 13 June 2017.
[194]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[195]. See
Australian Government, Budget measures: budget paper no. 2: 2017–18, pp.
91–91; Porter, Cash and Tudge, A fairer welfare system that supports more people into work, op. cit.; and Cash, Helping more Australians into jobs, op.
cit.
[196]. A
connection failure does, however, contribute towards a count of failures used
to determine whether a job seeker has committed a serious failure due to
persistent non-compliance. Before determining if a job seeker has committed a
serious failure due to persistent non-compliance a Comprehensive Compliance Assessment
(CCA) must be undertaken. If a job seeker has incurred three or more connection
or reconnection failures in the six months before the CCA, then this may result
in their being assessed as persistently non-compliant. See DSS, ‘3.1.13.40: serious
failures and penalties’, Guide to social security law, version
1.232, 8 May 2017, DSS website.
[197]. For
further details, see DSS, ‘3.1.13.30: participation
payment suspensions, connection failures, non-attendance Failures, reconnection
failures and penalties’, op. cit.
[198]. See
Porter, Cash and Tudge, op. cit.
[199]. Ibid.
[200]. Parliament
of Australia, ‘Social
Security Legislation Amendment (Stronger Penalties for Serious Failures) Bill
2014 homepage’, ‘Social
Security Legislation Amendment (Strengthening the Job Seeker Compliance
Framework) Bill 2014 homepage’ and ‘Social
Security Legislation Amendment (Further Strengthening Job Seeker Compliance)
Bill 2015 homepage’, Australian Parliament website.
[201]. Australian
Government, Budget
measures: budget paper no. 2: 2017–18, p. 78.
[202]. See
Cash, Helping
more Australians into jobs, op. cit.
[203]. J
Macklin (Shadow Minister for Families and Social Services), B O’Connor (Shadow
Minister for Employment and Workplace Relations), L Burney (Shadow Minister for
Human Services) and E Husic (Shadow Minister for Employment Services, Workforce
Participation and the Future of Work), Labor
concerned by social security changes, media release, 22 June 2017.
[204]. M
Thomas, Social
Security Legislation Amendment (Stronger Penalties for Serious Failures) Bill
2014, Bills digest, 17, 2014–15, Parliamentary Library, Canberra, 22
August 2014.
[205]. SSA
Act, section 42C.
[206]. Ibid.,
section 42E.
[207]. Ibid.,
section 42H.
[208]. Ibid.,
sections 42M and 42N.
[209]. Ibid.,
section 42P.
[210]. Ibid.,
section 42NA.
[211]. Ibid.,
section 42S.
[212]. Ibid.,
section 42SC.
[213]. Ibid.,
proposed section 42AB also states that proposed Division 3AA will not
apply to job seekers who are declared program participants.
[214]. The
requirement to enter into an employment pathway plan is contained in the SS
Act: for recipients of Parenting Payment, section 501; for recipients of
Youth Allowance, section 544A; for recipients of Newstart Allowance, section
605; and for recipients of Special Benefit, section 731L.
[215]. Standing
Committee for the Scrutiny of Bills, Scrutiny
digest, 8, 2017, op. cit., p. 30.
[216]. Parliament
of Australia, ‘Social
Security Legislation Amendment (Further Strengthening Job Seeker Compliance)
Bill 2015 homepage’, Australian Parliament website.
[217]. Parliament
of Australia, ‘Social
Security Legislation Amendment (Further Strengthening Job Seeker Compliance)
Bill 2015 homepage’, Australian Parliament website.
[218]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 10, 2015, The Senate, 16 September 2015, p. 6.
[219]. Ibid.,
p. 28.
[220]. SSA
Act, proposed section 42AM sets out the reconnection requirement for
mutual obligation failures and work refusal failures.
[221]. Ibid.,
proposed subsection 42AL(4).
[222]. Ibid.,
proposed subsection 42AM(3).
[223]. Ibid.,
proposed paragraph 42AR(1)(a) empowers the Minister, by legislative
instrument, to determine the circumstances in which the Secretary must, or must
not, be satisfied that person has persistently committed mutual obligation
failures.
[224]. Ibid.,
proposed paragraph 42AN(3)(a).
[225]. Ibid.,
proposed paragraph 42AN(3)(b).
[226]. Ibid.,
proposed subsection 42AP(6).
[227]. C Porter, M Cash and A Tudge, Welfare reform bill focuses on helping people into work, media release, 22 June 2017, p. 2.
[228]. P
Whiteford, ‘Budget
2017: welfare changes stigmatise recipients and are sitting on shaky ground’,
The Conversation, 11 May 2017.
[229]. SSA
Act, proposed subsection 42AG(2).
[230]. Ibid.,
proposed section 42AP.
[231]. Ibid.,
proposed section 42AO.
[232]. Department
of Employment, Submission to Senate Standing Committee on Community
Affairs, Inquiry into the Social Security Legislation Amendment (Stronger
Penalties for Serious Failures) Bill 2014, 2014.
[233]. Under
Part 1.2, Subsection 14A(7) of the SS Act a person is considered to be
in financial hardship if the value of their liquid assets does not exceed
$2,500 for a person who is not a member of a couple and does not have a
dependent child or $5,000 in any other case.
[234]. Social
Security (Administration) Act, subsection 42P(3) and subsection
42Q(1).
[235]. Department
of Human Services (DHS), Penalties
for not meeting your mutual obligation requirements, DHS website.
[236]. See,
for example, Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 90.
[237]. ACOSS,
Submission
to Senate Standing Committee on Community Affairs, Inquiry into the Social
Security Legislation Amendment (Welfare Reform) Bill 2017, August
2017.
[238]. Parliamentary
Joint Committee on Human Rights, Report,
8, 2017, op. cit., p. 70.
[239]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, pp. 89–90.
[240]. Standing
Committee for the Scrutiny of Bills, Scrutiny
digest, 8, 2017, 9 August 2017, p. 31.
[241]. The
requirement to attend is set out in subsection 63(2) of the SSA Act.
[242]. SSA
Act, proposed paragraph 42AQ(b).
[243]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 102.
[244]. SSA
Act, proposed paragraph 42AQ(c).
[245]. Standing
Committee for the Scrutiny of Bills, Scrutiny
digest, 8, 2017, op. cit., p. 30.
[246]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[247]. DSS,
Submission
to Senate Community Services Committee, Inquiry into the Social Services
Legislation Amendment (Welfare Reform) Bill 2017, 4 August 2017, p. 32
[248]. NSSRN,
Budget
2017: changes to claim requirements, op. cit., pp. 2–3.
[249]. That
is, immediately after the commencement of Schedule 1 to the Family Assistance
Legislation Amendment (Jobs for Families Child Care Package) Act 2017.
[250]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[251]. Ibid.,
p. 117.
[252]. Ibid.
[253]. That
is, a refusal or failure to comply with a requirement to give information or
produce a document.
[254]. That
is, the provision of false and misleading information or documents.
[255]. That
is, an offence relating to forging of documents.
[256]. That
is, relating to the making of false statements.
[257]. PPL
Act, proposed section 116A, inserted by item 21 of Schedule
17 to the Bill.
[258]. Ibid.,
proposed section 119, inserted by item 25 of Schedule 17 to the
Bill.
[259]. Inserted
into existing section 120 of the PPL Act by items 26–29 of
Schedule 17 to the Bill.
[260]. PPL
Act, proposed section 122A, inserted by item 33 of Schedule
17 to the Bill.
[261]. Ibid.,
proposed subsection 121(2), inserted by item 32 of Schedule 17 to
the Bill.
[262]. SSA
Act, proposed section 191A, inserted by item 43 of Schedule
17 to the Bill.
[263]. Ibid.,
proposed section 194, inserted by item 49 of Schedule 17 to the
Bill.
[264]. Inserted
into existing section 196 of the SSA Act by items 50–53 of
Schedule 17 to the Bill.
[265]. SSA
Act, proposed section 197A, inserted by item 54 of Schedule
17 to the Bill.
[266]. Ibid.,
proposed subsection 198(2), inserted by item 57 of Schedule 17 to
the Bill.
[267]. Student
Assistance Act, proposed section 342A, inserted by item 63 of
Schedule 17 to the Bill.
[268]. Ibid.,
proposed section 345, inserted by item 70 of Schedule 17 to the
Bill.
[269]. Inserted
into existing section 347 of the Student Assistance Act by items 71–73
of Schedule 17 to the Bill.
[270]. Student
Assistance Act, proposed section 347A, inserted by item 74 of
Schedule 17 to the Bill.
[271]. Ibid.,
proposed subsection 348(2), inserted by item 77 of Schedule 17 to
the Bill.
[272]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[273]. Parliamentary
Joint Committee on Human Rights, Report,
8, 2017, op. cit., p. 77.
[274]. Ibid.
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