Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

Further 1998 Budget Measures Legislation Amendment (Social Security) Bill 1999

Date Introduced: 11 February 1999

House: House of Representatives

Portfolio: Family and Community Services

Commencement:Upon Royal Assent except:

• Schedules 1 & 4 are proposed to commence on 1 July 1999.
• Schedules 2, 7, 8, & 9 are proposed to commence on 20 September 1999.
• Schedule 3 is proposed to commence immediately after the proposed commencement of Schedule 2.
• Schedule 5 is proposed to commence from a day fixed by proclamation, or, if Schedule 5 does not commence within 6 months beginning on the day this Act receives Royal Assent, from the first day after the end of the 6 month period.
• Schedule 10 is proposed to commence on 1 March 2000.
• Part 6 of Schedule 6 is proposed to commence from 1 August 2000.

Purpose

The Bill proposes to amend the Social Security Act 1991 (the Act) so as to give effect to a range of initiatives announced by the government in the 1998-99 Budget and to some other non-Budget initiatives. Passage of the Bill as proposed will:

• abolish the definitions of 'special maintenance' so that non-cash maintenance (eg. school fees, private health insurance), will be treated the same as cash maintenance

make changes to the amount of assistance payable to Community Development Employment Project (CDEP) participants to align them closer to entitlements payable to other like allowance recipients

• introduce a new special employment advance payment and at the same time abolish the current employment entry payment
• introduce a new one-off crisis emergency payment
• extend the current two year newly arrived resident waiting period to all newly arrived migrant residents, including those currently not subject to the two year waiting period, because they have come from a country with which Australia has a social security reciprocal agreement
• extend the rules that apply within Australia for the grant, rate of payment and portability of pensions to those pension claims lodged outside Australia
• expand the definition of suitable work an unemployed jobseeker may be required to look for and accept, under the work search activity test requirements, to include work that may be outside their local area
• expand the work search activity test penalty arrangements, that currently apply to recipients of unemployed jobseekers payments, who move to an area of low work prospects, to claimants who have moved to an area of low work prospects;
• expand the liquid assets test waiting period provisions to education leavers
• provide for a lower rate of pensioner education supplement for part-time students, and
• restrict access to the Health Care Card for newly arrived residents in Australia during the first two years of residency, unless they are either a refugee, a former refugee, an exempt resident, or a former exempt resident, or family members of exempt residents, or former exempt residents.

Background

There is no central theme to the proposals as presented within this Bill, it being an omnibus Bill containing a range of 1998-99 Budget and other non-Budget proposals. The background and discussion about each proposed item is provided in the comments on each of the Schedules as presented.

Main Provisions

Schedule 1 - Abolition of special maintenance income

Background - Current treatment of maintenance income

To receive more than the minimum rate of family allowance (FA) for a dependent child from a previous relationship, and to have that child counted for payment of guardian allowance, rent assistance and remote area allowance, a claimant must take reasonable action to obtain child support, ie. maintenance for that child. The minimum level of maintenance is set by a formula under the Child Support (Assessment) Act 1989. This is to ensure that the prime onus for the support for children is placed on parents, rather than on the taxpayer, by way of government assistance.

Maintenance income received is only income under the maintenance income test. That test only influences the amount of FA and associated payments paid. Maintenance is not regarded as income for pensions or allowance income support payments and therefore has no effect on the rate of these payments.

Historic treatment of non-cash maintenance

Prior to January 1993, the maintenance income test was applied to pensions and allowances. This meant that in those cases where a large amount of non-cash maintenance was being provided, the recipient of the maintenance could have their income support payment significantly reduced or even precluded. This was an undesirable result, with the maintenance recipient left with no on-going means of support, having received a large amount of in-kind maintenance and little or no cash. Consequently, there were ceilings or caps placed on the amount of income in respect of non-cash maintenance.

From January 1993, the maintenance income test has been only taken into account for FA. The partial or total loss of FA is less of a problem, FA being an income supplement, not income support. Consequently, the need for special ceilings or caps for non-cash maintenance now no longer exists.

What is non-cash maintenance?

Examples of non-cash maintenance are:

• food
• clothing
• household items
• rent
• mortgage payments
• free lodging
• health insurance
• medical expenses
• loan repayments
• credit card and store account repayments
• child care fees
• school and tuition fees
• general education expenses
• sporting club fees
• sporting costs including, equipment, associated travel and accommodation costs, coaching fees
• travel or holiday expenses
• utility bills, ie electricity, gas, telephone, heating
• rates, ie council, water, sewerage
• motor vehicle expenses, and

• household repairs

Savings and numbers effected with the proposal to remove caps on non-cash maintenance

This proposal was announced in the 1998-99 Budget and the explanatory memorandum to the Bill estimates that the measure will cost $0.369 million in 1998-99 and thereafter save $1.209 million in 1999-2000, $1.300 million in 2000-2001 and $1.366 million in 2001-2002.

These savings would be achieved by way of reduced program outlays for FA, being the income supplement payment under the Act, which is affected by the level of maintenance income paid to custodial parents.

An estimated of 1,170 custodial parents losing an average of $1,060 per year of FA was provided in the 1998-99 Budget papers(1). These costings assume that for the cases affected each receives on average $12,500 in non-cash maintenance and $4,000 cash maintenance per year.

Items 1, 2, and 3 remove the definitions of non-cash maintenance, which is called 'special maintenance income' in the Act. Items 4 and 5 remove the provisions in FA income test in the Act, which provided for the special treatment of maintenance income in that test. Item 6 repeals the section in the SSA that places a cap or ceiling on the amount of non-cash maintenance, to be regarded as income under the FA income test. Item 7 removes sections in the Act that referred to the treatment of non-cash maintenance, where there was no agreement for maintenance under the Child Support (Assessment) Act 1989. Item 8 removes from the Act a section that provided for a cap or ceiling on the value of the provision of residence accommodation, commonly the former family home, as non-cash maintenance.

Schedule 2 - Amendments relating to the Community Development Employment Project (CDEP)

Background - What is CDEP?

The first CDEP scheme was established in 1977 and was designed to deal with Aboriginal unemployment, aiming at providing an alternative to 'sit-down' money. Since 1977, more than 30,000 indigenous Australians have been involved in up to 274 CDEP schemes throughout Australia.(2) In the second reading speech to the Bill it was claimed that there are more than 26,000 workers currently employed in CDEP.

CDEP involves an alternative method of providing government assistance otherwise paid to individuals in the form of income support payments.

Instead of individuals being paid social security payments, eg. disability support pension, sickness allowance, newstart allowance, age pension, partner allowance (except sole parent pension), a single consolidated amount is paid to the community.

Under CDEP, money is paid under the administrative direction of the Aboriginal and Torres Strait Islander Commission (ATSIC) via a paying agency and is based on a per-capita amount which is about $6.00 a fortnight above the maximum newstart allowance rate. Payments are made three monthly and are linked to the number of CDEP participants in the community.

CDEP is voluntary and individuals are not compelled to receive assistance through the CDEP payment arrangements. However, in reality within communities there is often considerable pressure to participate so that the local scheme maintains its numbers and maximises its financial resources. Unlike newstart allowance, it is not necessary for an individual to be looking for work to receive CDEP payments, nor to be in paid work. Many participants spend periods not working and still receive CDEP payments.

There are exclusion provisions within the Act, to preclude payment of allowances (eg. newstart, sickness, partner, widow, mature-age), to a person who elects to be a CDEP participant.

There is no like preclusion for pension payments in the Act, but ATSIC guidelines preclude pension payments to CDEP participants, except for sole parents (see CDEP monetary and other assistance inequities below).

Benefits of CDEP

The main benefits of CDEP schemes are:

• money can be pooled for community development projects and for community activities;

• individuals can be paid for work performed; and
• the community gains some power and capacity to decide community needs, future directions and priorities.

CDEP monetary and other assistance inequities

Lying somewhere between a labour market program and a community welfare program, there have been some longstanding concerns with some aspects of CDEP. One of these concerns has been the lack of access to some of the ancillary payments and fringe benefits otherwise available to persons receiving assistance under the Act. These are rent assistance, bereavement payments, telephone rental allowance, pharmaceutical allowance, and pensioner concession cards. This assistance is not available, as access is contingent on qualification for a payment under the Act.

Access to the health care card (HCC) has always been available as for other low-income earners, but it was not automatically issued as with other income support recipients. Access to the HCC has required the CDEP participant to claim the card and the take-up rate amongst Indigenous Australians has always been low.

These differences in assistance have been a long-standing source of concern and tension and more recently have been highlighted with the advent of the Work for the Dole Scheme, which pays participants an extra $20 a fortnight to cover the costs of transport and participation.

Sole parent pensioners entitled to the social security sole parent pension (now called parenting payment - single) are not excluded under ATSIC guidelines from being a CDEP participant and at the same time also receiving the parenting payment - single. In addition to the parenting payment - single, the extra payments and assistance currently available to sole parents under the SSA are:

• guardian allowance
• rent assistance

• pensioner education supplement
• the Jobs Education Training Scheme (JET)
• employment entry payment
• pensioner concession card
• telephone rental allowance

Sole parents participating in CDEP communities are currently paid the parenting payment - single, as it provides more money and access to fringe benefits. The CDEP money is not paid to recipients of parenting payment - single.

Costs/savings, numbers effected and winners and losers

The initiative proposes to give CDEP participants access to most of the fringe benefits and ancillary payments otherwise available to persons with low incomes on social security assistance.

It is estimated 26,400 CDEP participants will receive the $20 participant supplement for engaging in work or work like activities.(3) Some of the differences for sole parents are addressed by this proposal, but not all and approximately 4,000 sole parents will be comparatively worse off.(4) The reduction in outlays for sole parents is where most of the projected savings for this proposal are achieved - see below.

The 1998-99 Budget Papers project a cost of $3.078 million for the 1998-99 year, thereafter followed by savings of $1.275 million in 1999-2000, $4.901 in 2000-2001 and $9.243 million in 2001-2002.(5) These savings would be largely achieved by the reduced amounts of payments to sole parents who are CDEP participants.

Other CDEP issues

This initiative addresses only some of the monetary inequities that have been at issue with CDEP schemes, but there are other CDEP issues still very much a matter of public debate. For discussion on these other CDEP issues, see the Independent Review of the CDEP Scheme by Ian Spicer, Commonwealth of Australia, December 1997.

Item 9 - social security recipient status

Item 9 proposes amendments to the Act to assign 'social security recipient' status within the Act, to CDEP participants, thereby providing access to many of the add-on payments and assistance from which they have been previously excluded. Hitherto, CDEP participants have not been defined within the Act as a 'social security recipient', and therefore have not been able to access much of the additional payments and assistance.

Items 12, 15, 22, 28, 35 and 40 - option to have additional payments paid quarterly

These items propose to allow the option of accumulating any add-on payments owing to a CDEP participant, to be paid as a lump sum at the end of a quarter. This is an optional arrangement and recognises that the add-on amounts may not be large in terms of fortnightly amounts, and that many CDEP participants living in remote communities may not have ready or convenient access to banking arrangements.

For these CDEP participants, the payment of a periodic accumulated lump sum may be of more assistance and more conveniently accessed. This option is also extended in respect of the CDEP participant supplement of $20 per fortnight - see Item 53 below.

Item 53 - New Part 3.15A - Division 1 - definition of a CDEP scheme and a CDEP scheme participant

Item 53 of the Bill inserts a new Part 3.15A into the Act containing several divisions. Division 1 contains much of the definitional descriptions and requirements for a scheme to be called a CDEP scheme and for a person to be categorised as a CDEP scheme participant.

Item 53 - New Part 3.15A - Division 2 - prevention of dual payments of CDEP payment and other social security payment

Division 2 provides for the prevention of dual payments of a social security pension or benefit and a CDEP payment to a CDEP participant.

Item 53 - New Part 3.15A - Division 3 - CDEP supplement

Division 3 inserts new provisions into the Act to provide for the CDEP participant supplement of $20 per fortnight, being the same amount of supplement currently provided to Work for the Dole program participants.

Item 53 - New Part 3.15A - Division 4 - CDEP to be assigned long-term social security recipient status

Division 4 contains transitional provisions for the treatment of existing CDEP participants to be accepted as long-term social security recipients to allow access to ancillary assistance.

Schedule 3 - special employment advance (SEA) and abolition of the employment entry payment (EEP)

Introduction

This proposal was announced in the 1998-99 Budget and aims to introduce a repayable advance for jobseekers entering employment to aid with the costs of starting a new job, and, at the same time abolish the EEP(6).

Origins and history of EEP

From February 1989 a Newstart program to improve the employment prospects of long-term unemployment benefit recipients was trialed on a group of 40,000 recipients. As part of this program a transition to work incentive payment of $100, called an employment entry payment, was provided to those entering permanent full time work. From January 1990 a similar EEP of $50 was introduced for Job Search Allowees (the payment at that time for young unemployed people) who had been on the allowance for at least 9 months and took up full time employment.

From January 1991 an EEP of $100 was made available for Sole Parent Pensioners who had been on the pension for at least 12 months and increased their earnings above a certain level or got a job which took them off the pension.

Thereafter, the EEP was steadily expanded to recipients of other payments as an employment incentive and to aid with the costs of starting a job.

Currently EEP is available to recipients of disability support pension -($300), carer payment ($100), newstart allowance ($100), mature age allowance ($100), partner allowance ($100), widow pension ($100) and widow allowance ($100).

Attempts to abolish the EEP

The first attempt to abolish EEP was made with the Social Security Legislation Amendment (Budget and Other Measures) Bill 1996. See Bills Digest No. 52 1996-97(7). The Bill arose from a proposal in the 1996-97 Budget(8). The parts of the Bill that proposed the abolition of the EEP were rejected in the Senate.

The second attempt to abolish the EEP was made with the Social Security Amendment (Entry Payments) Bill 1997, which was introduced in the Senate on 26 June 1997. See Bills Digest No. 44 1997-98(9). The Bill was not subsequently debated in the Senate prior to the 38^th Parliament being dissolved on 31 August 1998.

Reasons presented for the abolition of the EEP

The reasons provided in the explanatory memorandum attached to the Bill and in the Budget papers for the abolition of EEP are:

• departmental evaluations suggest that the EEP has not been a major factor in influencing decisions to take up work; and
• the scheme is complex, with the differing rates and conditions determined by the income support payment received.

In summary, the abolition of EEP is for targeting and simplicity reasons. The other probable and unstated reason is also to achieve savings.

It is probably unarguable that the EEP is not an incentive to take up work, ie. a person is unlikely to start work solely to access a $100 EEP. However, the original purpose of EEP was to help with the extra costs of starting work, eg. new or special work clothes or uniform, travel costs before first salary/wages payment.

For unemployed jobseekers, especially those unemployed for a significant period and therefore with little or no cash reserves, the presence of the EEP to assist with the extra one-off costs of starting a job is probably highly beneficial.

In 1996, the abolition of the EEP was anticipated to affect 160,500 jobseekers.(10) More recently, in a response to a question on notice in Senate Estimates, it was revealed that the EEP paid 137,000 persons in a year at a cost of $15.5 million per year.(11)

Propose New Special Employment Advance (SEA)

This proposal was announced in the 1998-99 Budget and the main purpose of the proposed SEA is to assist people who face problems with taking up employment due to start up costs.

The other aim is to assist those people undertaking casual work who are in financial difficulties, as they have not been paid. The first of these problems is to a large degree currently addressed by the EEP.

The new SEA appears to target assistance much more specifically than the EEP to those who actually face specifically identifiable financial disincentives or impediments in commencing or sustaining work. The other major differences between the current EEP and the proposed SEA are:

• the SEA is means tested in cases where casual earnings are owed but not yet paid
• the SEA is a repayable advance, unlike the EEP which is not repayable
• the SEA may not be payable where it is determined repayment would result in severe financial hardship
• the SEA is not a fixed pre-set amount (ie. $100 or $300), but is variable from between a minimum of $50 up to a maximum of $500, depending on individual need and cost circumstances
• a 3 month payment receipt qualifying period applies, whereas for EEP attached to newstart allowance a 12 month period is required, but for parenting payment - single and disability support pensioners, no qualifying period applies
• where the SEA is being sought in respect of commencing full-time employment, the employment must be for 6 weeks or more

SEA will require significantly added administrative cost compared to EEP

Currently, where a person qualifies for an EEP, it is paid automatically, and being non-means tested and with very little other qualification requirements, the time, effort and cost of delivery is minimal.

This has been seen as a virtue in terms of quick and hassle free delivery to meet costs of starting a job, when these costs are often unexpected and need to be met quickly, to allow the commencement of work. With the proposed SEA, the comparatively extensive qualification and payment rate assessment requirements will add considerably to the cost and time associated with the delivery of the payment.

Cost of the SEA

The 1998-99 Budget Papers presented estimates that about 35,000 people will receive the payment at a cost of $0.758 million in 1998-99, $0.010 million in 1999-2000 and $0.074 million in 2000-2001, followed by a saving of $0.009 million in 2001-2002.(12)

Comment on the proposed Bill

Part I of Schedule 3 contains a number of insertions into the Act to prescribe which social security payment recipients will be entitled to the proposed SEA.

Item 43 - New Part 2.22A

Item 43 of Schedule 3 inserts new Part 2.22A into the Act, which contains a number of new sections for the proposed SEA.

New section - 1061EM - qualification for SEA

Item 43 contains new section 1061EM - qualification for SEA. A feature of this section is that a person needs to have been in receipt of a qualifying payment for 3 months or more to also qualify for a SEA. This contrasts with the EEP were generally there is no qualifying period, except for newstart allowance where the qualifying period is 12 months.

Also contained in the new section 1061EM are proposed sub-sections that prescribe that SEA is not payable where earned income (ie. casual earnings), which have not yet been received, would otherwise reduce the rate of income support payment otherwise payable by 50% or more.

Item 43 - New Part 2.22A - section 1061EN - severe financial hardship

New Part 2.22A also contains a new section 1061EN, which sets out the requirements for severe financial hardship.

Where the SEA is being sought in cases where casual earnings are owed but not yet paid, a 'severe financial hardship test' is to apply. Hardship is met where liquid assets on hand (ie. cash, money in bank accounts), are less than the equivalent of two weeks payment, at the maximum rate, for the income support payment the claimant is otherwise entitled to be paid. This liquid assets test is consistent with like liquid assets tests used in respect of other payment requirements in the Act.

Item 43 - New Part 2.22A - New section 1061EO - SEA not payable in some circumstances

A claimant is not qualified for a SEA where:

• the SEA payable is less than $50;

• the claimant has a debt owing to the Commonwealth, which is repayable against deductions from a payment under the Act, or

• the person is undertaking a program of employment assistance.

The last exclusion point is the one of most interest, especially for those jobseekers gaining assistance from the new Job Network assistance arrangements. It is not clear from the explanatory memorandum attached to the Bill as to exactly which jobseekers this exclusion exactly refers to.

As explained in the memorandum, it could potentially apply to all jobseekers with access to assistance under Flex 1 - Job Matching, Flex 2 - Job Search Training and Flex 3 - Intensive Assistance. If this is the case, then SEA would not be payable to the vast majority of newstart allowance recipients, all of whom are entitled to at least Flex 1 assistance. SEA would also be precluded for those recipients of other income support payments gaining assistance from the Flex arrangements. Flex assistance is potentially available to persons in receipt of other social security income support assistance, eg. disability support pension, parenting payment - single, mature age allowance and mature age partner allowance, youth allowance, widow allowance.

There are several other Divisions in Item 43 of Schedule 3, all inserted under the proposed new Part 2.22A. These new Divisions are Division 2 - claim for SEA, Division 3 - determination of claim and payment of SEA, Division 4 - amount of SEA payable, Division 5 - payment of SEA, Division 6 - protection of SEA and Division 7 - repayment of SEA.

Item 53 - New Part 3.16B - SEA recovery

Item 53 inserts a new Part 3.16B into the Act being the provisions for the recover of the SEA.

Part 2 - repeal of EEP

This part of the Bill repeals EEP from the Act - see comments about EEP above.

Schedule 4 - introduction of a crisis payment

Introduction

This initiative was announced in the 1998-99 Budget and aims to introduce a new, non-repayable crisis payment for persons in extreme circumstances.

It is proposed to commence from 1 July 1999 and the costs as outlined in the 1998-99 Budget papers are $0.896 million in 1998-99, $1.408 million in 1999-2000, $1.411 million in 2000-2001 and $1.433 million in 2001-2002.(13)

The crisis payment as proposed is to be only provided to recipients of a social security income support payment. The amount of the proposed crisis payment will be the equivalent of one week's full entitlement of the income support payment otherwise payable without any add ons, eg. rent assistance.

Item 13 - New Part 2.23A - qualification for crisis payment

Item 13 inserts into the Act new section - 1061JG - Qualification for crisis payment - release from prison or psychiatric confinement.

Current special benefit 'prison release' payment

The crisis payment proposes to provide some assistance to persons in circumstances where some help is currently provided. This help is in the form of the current special benefit 'prison release' payment. This payment currently provides immediate cash assistance to newly released prisoners and is designed to provide financial assistance on release to assist with the immediate costs of food, accommodation and transport etc.

The special benefit 'prison release' payment recognises that a newly released prisoner may take some time to obtain employment and for most social security payments, there is either a waiting period or some time delay, before the first payment is available.

The current special benefit 'prison release' payment provides up to one week of payment of special benefit at twice the normal rate. Special benefit 'prison release' is not payable where the newly released prisoner can claim and otherwise qualify for newstart or youth allowance. In such cases, special benefit at the normal rate may be payable in the one week waiting period for newstart or youth allowance.

So in terms of replacing the current special benefit 'prison release' payment, which can provide twice a one-week payment, the proposed one off crisis payment, being a one-week payment, provides less assistance. Likewise, the time in prison requirements are proposed to be doubled from 7 to 14 days and it is from these two changes that much of the projected savings will be achieved.

Item 13 - New Part 2.23A - 1061JH - extreme circumstance forcing departure from the family home

Item 13 proposes to insert new section 1061JH - Qualification - extreme circumstances forcing departure from home, for example, domestic violence. It has been a matter of criticism that newly released prisoners gain immediate assistance for accommodation and food etc on release from prison with the special benefit 'prison release' payment, while persons fleeing domestic violence, with very like needs, are not provided with any help. For those forced to vacate the family home due to domestic violence, the current special benefit guidelines do not provide any assistance.

The payment conditions as proposed refer to cases where the person has been forced from their home, cannot return and intends establishing a new home. So it is somewhat different to the current special benefit - 'major disaster not declared' payment which is mainly for a person intending to return to their home. See Special benefit - Major disaster not declared below.

The claim must be lodged within 7 days of the extreme circumstance occurring, thereby emphasising the immediacy of the payment.

Item 13 - New Part 2.23A - 1061JJ - crisis payment not payable where a disaster relief payment (DRP) is payable

Currently, a DRP is available to victims of major (or widespread) disasters if their normal place of residence has been severely damaged and/or they have suffered a significant interruption to their normal source of livelihood as a result of the disaster. Recipients of a pension or benefit at the time of the disaster are also eligible for the payment.

DRP is a one-off payment equivalent to two weeks pension plus the standard family allowance rate, less the minimum standard family allowance rate, plus rent assistance at the rate appropriate to the claimant's family circumstances, disregarding income and assets testing.

DRP can only be paid where the Minister for Family and Community Services declares, by notice in the Gazette, that a disaster is a major disaster for the purposes of the Act. In no circumstances can payment of DRP be made without this authority.

The crisis payment as proposed will not be payable where a DRP is also payable.

Special benefit - Major disaster not declared

Separate to DRP payments, where a disaster occurs which is not a major (or widespread) disaster requiring a DRP payment to be activated, special benefit may be payable.

Payment of special benefit may only be made on a temporary basis to assist people during a short-term period of crisis. The following are only a few examples of where special benefit might be appropriate:

• a person (without paid leave entitlements) is required to take time off to repair or clean up property
• a person (without paid leave entitlements) is temporarily unable to work because of damage to his or her place of employment
• a self-employed person is unable to open for business because of damage to premises or stock
• a person is unable to support himself or herself or his or her family as a result of the disaster

It should be noted that special benefit may also be payable to victims of isolated disasters affecting only one person or family. For example:

• the family home may be devastated by fire and the person may be temporarily unable to earn a sufficient livelihood as other accommodation must be sought
• the person is temporarily unable to work due to damage to their place of employment

Each case is assessed on its merits.

Item 13 - New Part 2.23A - Divisions 2, and 3 - claim for and determination of claim for crisis payment

Item 13 proposes the insertion of the new Part 2.23A containing Division 2 - Claim for Crisis payment and also Division 3 - Determination of claim for crisis payment.

Item 13 -New Part 2.23A - Division 4 1061JU - amount of crisis payment

The proposed new section 1061JU sets out the amount of the crisis payment which is one weeks payment set at the rate of the maximum basic rate of income support payment otherwise payable to the claimant.

Item 13 - New Part 2.23A - Divisions 5 and 6 - Payment and protection of crisis payment

Item 13 proposes the insertion of the new Part 2.23A containing Division 5 - Payment of crisis payment and also Division 6 - Protection of crisis payment.

Schedule 5 - Amendments relation to newly arrived residents' waiting periods

Background - residency for social security assistance

There are residency qualifying periods (ie. length of legal residence in Australia), for most social security income support payments. Some common examples are:

• age pension - 10 years
• disability support pension - 10 years if incapacitated on arrival
• parenting payment - single and widows pension - 5 years if a sole parent or widow on arrival

With the passage of the Social Security Legislation Amendment (Newly Arrived Resident's Waiting Periods and Other Measures) Act 1996(14), since 4 March 1997 newly arrived residents have to wait two years before they can receive payments of income support. Two years residence refers to legal residence in Australia. Currently, the two-year newly arrived resident waiting period does not apply to 'reciprocal agreement' countries or to refugees, humanitarian entrants, and the partners and dependent children of refugees and humanitarian entrants. These are the countries with which Australia has an international social security reciprocal agreement.

Social Security Reciprocal Agreement with New Zealand (NZ)

The reciprocal agreement with NZ was first signed in 1943 and was the first such agreement with any country. The agreements was last up-dated in 1995. Under the agreement, subject to some conditions some payments are payable immediately on arrival, eg. age pension, carer pension, sickness allowance and family allowance. However, for some payments there is a 26-week waiting period, eg. newstart allowance, parenting payment - single. There is no entitlement where the person is temporarily in Australia and is not residing here, the waiting period referring to those moving to Australia to reside on a permanent basis. Under the agreement, like rules apply to persons moving from Australia to NZ.

The proposal is to now apply the two-year newly arrived resident period to some payments for persons moving from NZ to reside in Australia. The payments are partner allowance, mature age allowance, sickness allowance and mobility allowance, all of which were previously available immediately on arrival. For newstart allowance, the current 26-week waiting period would also become the two-year newly arrived resident period.

This proposal was announced in the 1998-99 Budget and the projected savings as presented in the Budget papers are $0.072 million in 1998-99, $9.623 million in 1999-2000, $16.073 million in 2000-2001 and $16.677 million in 2001-2002.(15)

Numbers of NZ citizens moving to Australia

Most of the long-term movements between the two countries are persons moving to Australia. Over the 1996-97 period, some 17,500 NZ born moved to Australia permanently, making up about 20 per cent of all settler arrivals.

Reimbursement of payments between NZ and Australia

Under the current social security reciprocal agreement between Australia and NZ, there are reimbursement arrangements for some payments made to persons moving to the other country. In very general terms, each country is reimbursed by the other country for payments of social security assistance paid during periods the person would otherwise have had to serve a residence-qualifying period, if they had come from another country. The reimbursements apply only if the person would have otherwise qualified for the like payment in the previous country of residence (ie. NZ or Australia).

The reimbursement arrangements mainly apply to pension payments and are not affected by this initiative.

Renegotiation of agreement between NZ and Australia

The NZ government has already indicated that it will respond by also introducing a like waiting period for the similar payments in NZ.

Part 1 - Item 1 - addition of carer payment in section 7(6AA)

Some payments under the Act are payable to 'exempt residents' inside the two-year newly arrived resident waiting period. Under section 7(6) of the Act, 'exempt residents' for the two-year newly arrived resident waiting period refers to a refugee or former refugee. For the purposes of 7(6) of the Act, section 7(6B) of the Act defines a 'refugee' as a person admitted to Australia as a refugee, their partners and dependent children, humanitarian entrants and their partners and dependent children. The payments currently available to 'exempt residents' are special benefit, parenting payment - single, family allowance, non-benefit partnered payment, maternity allowance and mobility allowance. Item 1 amends section 7(6AA) of the Act to add carer payment to this list of payments payable to refugees and former refugees in the two year newly arrived resident waiting period.

Immediate payment of sickness allowance to some newly arrived former residents of the United Kingdom (UK)

In the 1998-99 Budget papers, it was proposed to extend the two-year waiting period the current immediate access to sickness allowance for some former UK residents(16). There are no items within this Bill touching on this element, so it is assumed that either there has been a change of intention or it is to be attempted at a later date.

Schedule 6 - Amendments relating to overseas residence and travel

Background - pension can be commenced either by claiming or by being transferred

This schedule proposes a series of amendments to the Act, attempting to provide for greater consistency and equity to the rules that apply for claiming a pension and taking it overseas. The current legislation inadvertently provides different rules for some age pension recipients, depending on how their pension commenced, ie. between those who lodged a claim and those who were automatically transferred from another income support payment.

One of the inconsistencies arose from the different ways a pension may have commenced to be paid. For most recipients, the commencement of payment was instigated by the lodgement of a claim for pension. Some recipients may not have actually lodged a claim, having been automatically transferred to the pension, on obtained qualification. For example, where a widow pension recipients reaches age pension age, and all the age pension qualification requirements are met, the legislation (ie. sub-section 43(1)) allows automatic transfer to an age without the need for a claim to be lodged. These automatic transfers to pension were not caught by the 12-month rule for portability of payments, having never technically lodged a claim as set out in the legislation.

Portability

Portability refers to persons leaving Australia to reside permanently overseas and having their Australian pension paid to them overseas.

Resident in Australia

The use of the terms 'resident' and 'residing in Australia' in this context deserves some clarification. Resident refers to a person who is legally in Australia and is allowed to reside permanently. A person may be legally in Australia but only visiting and not intending to reside permanently, and while physically present, is not in this context 'resident in Australia'.

Items 1 and 2 - Part 1 - Amendments relating to the portability of pensions

Items 1 and 2 in Part 1 propose amendments to the Act to ensure the current 12 month rule for persons returning to Australia and seeking to take their pension overseas is applied to all pension recipients. Under the current wording of section 1220 of the Act, only those who have actually lodged a claim for pension are caught by the rule. Those who were transferred to a pension, without having actually lodged a claim are not subject to the 1`2 month rule.

Items 3 to 8 - Parts 2 and 3: Amendments relating to rates of pension payable under portability provisions and Amendments relating to the grant of pensions overseas

Part 2 and Part 3 flow from Part 1. Part 2 is designed to ensure consistency in the rules that apply to the rate of portable pension, between those who claimed or were transferred to a pension in Australia, and those who claimed or were transferred to a pension whilst resident overseas. Part 3 is designed to ensure consistency in the rules that apply for the transfer to age pension for persons resident in Australia and for those resident overseas. See also Part 6 of this Schedule, which refers to making consistent the rate of pension paid.

Items 9 and 10 - Part 4: Amendments relating to the application of international agreements where persons transfer to another pension while overseas

Under some international social security agreements, the normal residency periods for an age pension (ie. 10 years) may not apply and a person can access the age pension at an earlier date. This amendment is like those in the previous Parts in this Schedule, in referring to those automatically transferred to an age pension inside the 10-year period by virtue of an international agreement. This amendment will ensure that for those who gain entitlement to the age pension inside the 10-year period, it is contingent on the existence of the international agreement.

Items 12 and 13 - Part 6: Amendments relating to the transfer to age pension of persons temporarily overseas

Part 6 is like Part 3, and is aimed at ensuring those who are granted a pension overseas, by virtue of an international agreement, cannot be paid at a rate higher than they would otherwise be entitled to if they were residing in Australia. With some international agreements, there are income test concessions recognising periods of residence in the overseas country, while the person was of working age. This arises from the fact that overseas age pension arrangements are often linked to contributions paid and /or period spent in the country whilst working. This is unlike Australia where generally there is no nexus between entitlement and rate of pension paid with contributions and working life residency. The exception to this is the rate of Australian age pension payable when it is taken overseas, which can be determined by period of residency during working age in Australia.

Schedule 7 - Amendments relating to youth allowance and newstart allowance and unsuitable work

Introduction

This proposal was announced in the 1998-99 Budget and the projected savings as presented in the Budget papers are $1.171 million in 1998-99, $3.900 million in 1999-2000, $3.799 million in 2000-2001 and $3.873 million in 2001-2002.

These savings are to be achieved by way of an estimated 400 youth and newstart allowance recipients accepting out of area jobs.(17)

Background - Current work search activity test requirements to look for and accept work near to place of residence

In situations where an unemployed jobseeker does not live in close proximity to the place of work, or job vacancy, current policy requires that they be expected to commute up to 90 minutes each way. Travel is not restricted to motor vehicles or public transport, and can include motor bike, bicycle or walking. There are some exceptions to the application of this rule and some examples are:

• the jobseeker is aged less than 18 years
• the jobseeker is pregnant or in ill health
• where taking the job would cause financial hardship

Expansion of the work test to out of area jobs where jobseeker indicates a willingness to look for and accept work out of local area

Under this proposed initiative, these 90 minute rules will still apply to most jobseekers. However, where a jobseeker indicates a willingness to look for and accept suitable work in excess of the 90 minute limit, then the 90 minute rule may be waived.

In these cases, where the jobseeker then subsequently refuses a job offer, or leaves a job due to the excess travel or cost of travel, then an activity test penalty may apply. Work in an outside area refers to permanent full-time work.

Items 2 to 5 - amendment to subsections 541D(1) and 601(2A)

Items 2 to 5 propose like amendments to sub-section 541(1A) for youth allowance and sub-section 601(2AA) for newstart allowance and they provide a list of exemptions where the out of area provisions would be waived or not be applied. Most of these appear to be sensible and self-evidently appropriate.

Sub-paragraph (k) in both Item 2 (541(1A)) for youth allowance and in Item 5 (601(2AA)) for newstart allowance refers to 'severe financial hardship'. However, there is no legislation prescription or explanation setting out or describing what constitutes 'severe financial hardship'. One must assume this will be a matter of policy guidelines, but it is not clear what will be required to meet 'severe financial hardship'.

Item 2 and Item 5 - Job referrals by contracted employment service providers

Sub-section (1B) in Item 2 and also (2AB) in Item 5 refer to jobseekers and employment service providers.

With the advent of the new employment assistance arrangements, ie. the Job Network, that commenced from 1 May 1998, it is the contracted employment service providers that largely undertake job referrals and placements. Where a jobseeker indicates to a contracted employment service provider that they are willing to look for and accept out of area jobs, then the proposed provisions will apply.

Schedule 8 - amendments relating to claim made for youth or newstart allowance after moving to an area of lower employment prospects

Introduction

This proposal was announced in the 1998-99 Budget and the projected savings as presented in the Budget papers are $0.069 million in 1998-99, $0.503 million in 1999-2000, $0.482 million in 2000-2001 and $0.502 million in 2001-2002. The Budget papers claimed that these savings would be achieved by an estimated 100 jobseekers having a 26 week non-payment period applied in a year.(18)

Background - Jobseeker moves to an area of lower employment prospects

There are currently legislative provisions in the Act, to provide for the non-payment of youth allowance and newstart allowance where a jobseeker has reduced his/her chances and opportunities to obtain employment by moving to an area of lower employment prospects. The non-payment period is 26 weeks. Under the current legislation, the non-payment period can only be applied where the jobseeker moved whilst receiving newstart or youth allowance. However, where the movement occurred when the jobseeker was not in actual receipt of newstart or youth allowance, the non-payment period cannot be applied.

Some jobseekers getting around the movement to an area of lower employment rules

There has been some concern that anecdotal evidence suggests that some jobseekers have been able to circumvent the application of the current 'moving to an area of lower employment prospects', non-payment provisions. This can be achieved by contriving their circumstances to ensure they are not actually in receipt of newstart or youth allowance payment at the time of moving. For example, the jobseeker cancels their newstart or youth allowance payment immediately prior to the move, then re-claims newstart or youth allowance immediately after the move has been completed. There is a significant incentive to achieve this given the severity of the 26 week non-payment period.

Determinations of movements that meet the requirement of moving to an area of lower employment prospects

To determine whether a movement to an area of lower employment prospects has occurred, a comparison is made of the unemployment rates between the area and the area moved to.

Where the area moved to has a rate that is two or more percentage points higher than the area moved from, a non-payment period might be applied. For example, a jobseeker moves from Adelaide with an unemployment rate of 9% to Mount Gambier with an unemployment rate of 14%.

Situations where the non-payment provisions may not apply are where the:

• jobseeker moves to reside with, or near, a family member already established in the area; or
• jobseeker moves for the purposes of treating, or alleviating an illness of the person or family member.

Originally, it was the Commonwealth Employment Service (CES) that made the determinations about jobseekers moving to an area of lower employment prospects. With the advent of new employment assistance arrangements, that commenced from 1 May 1998, ie. the new Job Network, the CES is no longer operative. Technically the CES still exists but only as a statutory shell. In this new environment, it is now Centrelink staff who make out of area determinations, using policy guidelines provided by the Department of Family and Community Services.

Items 1 and 4 - repeal and replace subsection 553B(1) and amend subsection 634(1)

Items 1 and 4 propose amendments to the Act for both the youth allowance and newstart allowance provisions to provide for the application of a 26 week non-payment period, where a person prior to claiming either payment has moved to an area of lower employment prospects. However, neither Items 1 or 4 as proposed contain any time limit or period in which the movement should take place, prior to the lodgement of the claim. This means a claimant may have moved three or even six months prior to claiming and these provisions may be applied.

Does the punishment fit the crime?

The 26-week non-payment period, for jobseekers moving to an area of lower employment prospects, is a rather harsh penalty compared to other penalties applied for like breaches of the work search activity test. Some common examples of activity test breaches where a penalty may be applied are:

• fails to satisfy the requirements of the activity test
• refuses or fails to attend a job interview without sufficient reason
• fails to complete a labour market program, or is dismissed from such a program before its completion due to misconduct
• refuses or fails to correctly declare earnings from employment
• recklessly or knowingly gives false or misleading information about earnings
• becomes unemployed voluntarily without sufficient reason
• becomes unemployed due to misconduct
• refuses or fails to accept suitable job offers without sufficient reason

Where an activity test breach has occurred, the Table below sets out the regime of penalties.

If...	Then...
it is the first activity test breach within a 2 year period	the customer's basic rate of payment will be reduced by 18% for a period of 26 weeks.
it is a second activity test breach within a 2 year period	the customer's basic rate of payment will be reduced by 24% for a period of 26 weeks.
it is a third or subsequent activity test breach within a 2 year period	a non-payment period will apply for 8 weeks.

In comparison to the penalty regime applying to other breaches of the work search activity test, the 26 week non-payment period is not progressive and is far more severe.

Schedule 9 - Amendments relating to the liquid assets test waiting period (LATWP)

Introduction

This proposal was announced in the 1998-99 Budget and the projected outlays as presented in the Budget papers are $0.327 million in 1998-99, $1.718 million in 1999-2000, $1.717 million in 2000-2001 and $1.763 million in 2001-2002. These savings estimates are based on an estimated 2,500 newstart allowance and 60 sickness allowance claimants and 20 partners being effected, with liquid assets of $3,000 or more ($6,000 or more if a member of a couple).(19)

Background

The LATWP applies to claimants for newstart allowance, youth allowance, sickness allowance and the Austudy payment. The LATWP can be up to 13 weeks, depending on the amount of liquid assets held by the claimant. The purpose of the LATWP is to ensure claimants with some readily available financial resources at claim use those resources first before payment commences.

The amendments to the Act presented in this Schedule are designed to ensure a person cannot be considered as unemployed while enrolled as a full-time student.

For unemployment benefit type payments (ie. youth allowance and newstart allowance), it has never been specifically spelt out in the Act that a person undertaking full-time studies is not unemployed. It has been a matter of interpretation and application by decision makers and tribunals that a person who is a full-time student is not unemployed. The exception to this has been for sickness allowance where the Act did contain specific provisions precluding qualification to full-time students.

Items 1 to 4 - persons in full-time study not unemployed while studying

It is claimed in the Explanatory memorandum attached to the Bill, that as a result of interpretations by Tribunals, some full-time students can be considered as unemployed, notwithstanding that they are still enrolled as a student. So the primary purpose of this Schedule is to spell out in the Act that full-time students are not unemployed. The proposed amendments in Items 1 to 4 give effect to this purpose.

Application of the LATPW - date of unemployment

An indirect result of the amendments proposed will also address a perceived imbalance in the application of the LATWP, between claimants who were formerly full-time students and claimants formerly employed. The origins of this different treatment probably arise from the introduction of youth allowance in July 1998. Prior to July 1998, the student income support payment was AUSTUDY, for which there was no LATWP. An example of the different application of the LATWP is set out below.

A person ceases work and commences full-time study. However, study is only sustained for 6 weeks, and the person then claims newstart allowance (with cash on hand of $10,000 so a LATWP applies). Under the current provisions, the LATWP commences from the date of unemployment, being before studies commenced. Indirectly the claimant has self-served part of the LATWP during the 6 week study period. This contrasts with a newstart claimant (also with cash on hand of $10,000 so a LATWP applies), who ceased work on the same day as the first person ceased studies. For this claimant, the LATWP starts from a later date. This is because sub-section 598(1) of the Act stipulates that the LATWP starts from the date the person becomes unemployed.

So the net effect of the proposed amendments as presented in Items 1 to 4, means that in cases as presented in the example, a person is not unemployed while a student and the date of unemployment becomes the day after date ceased studies.

Schedule 10 - Amendment relating to the pensioner education supplement

Introduction

This proposal was announced in the 1998-99 Budget and the projected savings as presented in the Budget papers are $0.000 million in 1998-99, $1.228 million in 1999-2000, $6.016 million in 2000-2001 and $6.526 million in 2001-2002.

The Budget papers presented an estimate of 7,800 students receiving the reduced Pensioner Education Supplement (PES) of $30.(20) Without this change part-time students would otherwise receive the full PES rate of $60. These savings are to be achieved by no longer paying the full rate of PES, but a part rate of PES to part-time students.

What is the PES?

The PES is a payment to certain categories of pensioners who undertake full-time or part-time study. The payment is $60 a fortnight or $1,564 a year and is free of income and assets tests.

Who can get PES?

PES is available to people who are receiving certain payments from Centrelink or the Department of Veterans' Affairs (DVA).

Centrelink provided payments that attract the PES:

• Carer payment
• Disability support pension
• Rehabilitation allowance
• Parenting payment - single
• Special Benefit (is a sole parent)
• Widow B pension
• Widow allowance
• Wife pension (if partner receives a disability support pension)

DVA provided payments that attract the PES:

• Carer service pension
• Defence widows pension (if has a dependent child)
• Invalidity service pension
• Partner service pension (if partner is receiving an invalidity service pension)
• War widow's pension (if has a dependent child)

Rationale for proposal

The rationale, as outlined in the 1998-99 Budget papers, for removing access to the full rate of PES to part-time students was that a lower rate of PES for part-time students recognises that they probably are likely to incur lower costs than full-time students.

Part-time students in receipt of a disability related income support payment, namely disability support pension, invalidity service pension and invalidity income support supplement, will still receive the $60 full-time PES rate.

Number of students affected by introduction of a part-rate PES for part-time students

In an answer to a question in Senate Estimates on 2 June 1998, the Department of Social Security provided an estimated breakdown of the 7,800 students affected.

PES evaluation

Senator Allison asked the Minister for Family and Community Services, upon notice, on 7 December 1998 the following:

In response to this Question No. 355, on 17 February 1999 Senator Newman provided the following answer to the honourable Senator's questions(22).

Given that there is an evaluation of the PES program currently under way, it is not clear how this proposal fits in with any PES evaluation outcomes.

Item 1 - amendment to section 1061PZG - provides a part rate PES for part-time students

Item 1 proposes the complete replacement of section 1061PZG of the Act with a new PZG 1061PZG. The current section 1061PZG simply provides for a rate of PES payable at $60 per fortnight to all who qualify. Item 1 provides for the same full rate of PES to full-time students and a part-rate PES of $30 for part-time students.

Schedule 11 - Minor technical amendment

Introduction

This Schedule proposes a change to the Health Insurance Act 1973 to preclude access to the low-income earners Health Care Card (HCC) to newly arrived resident migrants during the first two years of residency. The HCC currently provides access to concessional rate pharmaceuticals, under the Pharmaceutical Benefits Scheme.

Background

With the passage of the Social Security Legislation Amendment) Newly Arrived Resident's Waiting Periods and Other Measures) Act 1996(23), since 4 March 1997 newly arrived residents have to wait two years before they can access payments of income support. Two years residence refers to legal residence in Australia.

It was the original intention to also preclude access to the HCC for two years for newly arrived residents, see Part 3 of Schedule 3 Social Security Legislation Amendment) Newly Arrived Resident's Waiting Periods and Other Measures) Bill 1996. However, due to a mistake in the wording in the Bill, the HCC was not precluded to newly arrived residents as intended.

Savings and numbers effected

The explanatory memorandum attached to the Bill provides no information on the estimated cost savings and the numbers effected with this proposal. As with the current two year newly arrived resident waiting period provisions, exempt residents are not to be caught up by this proposal. Exempt residents primarily refer to refugees and other humanitarian entrants, former refugees and members of their families.

It is impossible to arrive at a dollar per person benefit that the HCC provides as the health needs and use of pharmaceuticals varies tremendously between individuals.

Components of newly arrived residents - migration and humanitarian

Australia's permanent immigration program is separated into two components:

• Migration (or non-Humanitarian) for Skilled and Family Stream migrants; and
• Humanitarian for refugees and others with humanitarian needs

On 8 April 1998, the Minister for Immigration and Multicultural Affairs, The Hon. Philip Ruddock, MP announced the Migration Program and Humanitarian Program planning levels for the 1998-99 year.(24) Up to 80,000 new settlers will be selected, made up of 68,000 under the Migration Program and 12,000 in the Humanitarian Program. It is under the Humanitarian Program that refugees gain access to residency in Australia.

Endnotes

2. Portfolio Budget Statements 1998-99 Budget, Social Security Portfolio, Budget Related Paper no. 1.14, p. 86.

3. Ian Spicer, 'Independent Review of the CDEP Scheme', Commonwealth of Australia, December 1997, p. 24.

4. Portfolio Budget Statements, op. cit. P. 71.

5. Ibid.

6. Ibid., p. 72.

7. Ibid., pp. 75-76

8. Bills Digest no. 52 1996-97, Social Security Legislation Amendment (Further Budget and Other Measures) Bill 1996.

9. Portfolio Budget Statements, op. cit., pp. 122-123.

10. Bills Digest no. 44 1997-98, Social Security Amendment (Entry Payments) Bill 1997.

11. Portfolio Budget Statements, op. Cit., pp. 123.

12. Community Affairs Legislation Committee, Examination of Budget Estimates 1998-99, Social Security Portfolio, Additional Information received Volume 1, August 1998, p. 174.

13. Portfolio Budget Statements, op. cit., pp. 75-76.

14. Ibid., pp. 83-84.

15. Bills Digest no.102 1995-96, Social Security Legislation Amendment (Newly Arrived Resident's Waiting Periods and Other Measures) Bill 1996.

16. Portfolio Budget Statements, op. cit., pp. 69-70.

17. Ibid., p. 69.

18. Ibid., pp. 79-80.

19. Ibid., p. 81.

20. Ibid., pp. 77-78.

21. Ibid., pp. 88-89.

22. Senate Estimates, 2 June 1998, Community Affairs Legislation Committee. Social Security Portfolio. Program 6 - Special payments and services.

23. Senate Hansard, Wednesday, 17 February 1999, pp. 2162-2163.

24. Bills Digest no. 102 1995-96, Social Security Legislation Amendment (Newly Arrived Resident's Waiting Periods and Other Measures) Bill 1996.

25. Minister for Immigration and Multicultural Affairs, Ministerial Press Statement 37/98, Humanitarian Program Announced for 1998-99.

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23 March 1999
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