Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
EMPLOYMENT AND WORKPLACE RELATIONS LEGISLATION
AMENDMENT (WELFARE TO WORK AND VOCATIONAL
REHABILITATION SERVICES) BILL 2006
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace Relations
the Honourable Kevin Andrews MP)
EMPLOYMENT AND WORKPLACE RELATIONS LEGISLATION
AMENDMENT (WELFARE TO WORK AND VOCATIONAL
REHABILITATION SERVICES) BILL 2006
OUTLINE
A key objective of the Australian Government is to maximise the ability of
Australians to find work, particularly those who face the most severe barriers to work,
to reduce welfare dependency, to support strong employment growth and the
improved productive performance of enterprises in Australia. From 1 July 2006, the
Government's Welfare to Work package provided an extra $192 million for
Vocational Rehabilitation Services over the three years to June 2009 to guarantee
access to Vocational Rehabilitation Services for all eligible people with new part time
activity test or participation requirements when and where they need it. Consistent
with the Government's key objectives, this Bill builds on the Welfare to Work
reforms, making amendments to the Disability Services Act 1986 which support the
move from 1 July 2007 to a contestable Vocational Rehabilitation Services market.
These amendments ensure the continued support and assistance for job seekers to
build capacity and find work through employment and related services.
The Bill also makes a number of technical amendments to the social security law and
ensures that the Welfare to Work measures which commenced on 1 July 2006
continue to be fairly and consistently applied.
The financial impact of the Bill is minimal.
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House of Representatives Employment and Workplace Relations
Legislation Amendment
(Welfare to Work and Other Measures)
(Consequential Amendments) Bill 2006
EMPLOYMENT AND WORKPLACE RELATIONS LEGISLATION
AMENDMENT (WELFARE TO WORK AND VOCATIONAL
REHABILITATION SERVICES) BILL 2006
NOTES ON CLAUSES
Clause 1 sets out how the Act is to be cited, that is, the Employment and Workplace
Relations Legislation Amendment (Welfare to Work and Vocational Rehabilitation
Services) Act 2006.
Clause 2 provides a table that sets out the commencement dates of the various
sections to the Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or repealed
as set out in that Schedule.
For ease of description, this explanatory memorandum uses the following
abbreviations:
"Disability Services Act" means the Disability Services Act 1986
"Social Security Act" means the Social Security Act 1991; and
"Administration Act" means the Social Security (Administration) Act 1999.
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House of Representatives Employment and Workplace Relations
Legislation Amendment
(Welfare to Work and Rehabilitation Services)
Bill 2006
Summary
SUMMARY
The amendments made to the Disability Services Act remove the requirement for the
provision of individual rehabilitation programs to be approved under that Act. The
Secretary's powers to delegate (currently limited to only CRS Australia or the
Department) have been broadened. These amendments support the move to a
contestable rehabilitation services market from 1 July 2007.
The Bill also amends the social security law and:
· makes technical amendments to the pensioner education supplement and
mobility allowance debt calculation provisions;
· reflects changes in terminology replacing the term `pension period' with
`instalment period' and removing references to the redundant payment of
rehabilitation allowance in the New Enterprise Incentive Scheme provisions;
· makes changes to the income test arrangements where a CDEP Scheme
payment is payable to (i) reflect the new higher rates payable from 1 July 2006
to certain newstart allowance and youth allowance recipients, and (ii) clarify
the way in which income is calculated for some members of a couple;
· allows for financial case management debts to be deducted from social
security payments; and
· puts beyond doubt the intended treatment of indexation decisions.
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House of Representatives Employment and Workplace Relations
Legislation Amendment
(Welfare to Work and Rehabilitation Services)
Bill 2006
Schedule 1 - Amendments
SCHEDULE 1 - AMENDMENTS
EXPLANATION OF CHANGES
Disability Services Act 1986
Item 1 inserts a new definition of Commonwealth employee into section 4 of the
Disability Services Act. Commonwealth employee is defined to mean an APS
employee or an employee of a body (whether incorporated or not) established for a
public purpose by, or under, a law of the Commonwealth. This definition is relevant
in the context of who, under section 27 of the Disability Services Act, may require, or
be provided with, information in relation to a matter that might affect a payment
under Part III of the Disability Services Act or the liability of a person to pay an
amount to the Commonwealth under section 23.
Item 2 repeals the current definition of officer and inserts a new definition of officer.
An officer means a Commonwealth employee, a person or an employee of such a
person who performs services on behalf of the Department under a contract between
the person and the Commonwealth. This new definition is relevant for the purposes to
whom the Secretary can delegate his or her powers to under Part III of the Disability
Services Act. The policy objective of this amendment is to change the current
arrangement of CRS Australia and employees of the Department being the only
possible delegates of the Secretary under the Disability Services Act. CRS Australia
will be a competitor within the Vocational Rehabilitation Services market and it is no
longer appropriate that it remains the only non-departmental organisation to whom the
Secretary can delegate his powers under Part III of the Disability Services Act.
Item 3 inserts `if any' at paragraph 19(1)(b).
Item 4 repeals and substitutes a new subsection 19(2) and inserts a new
subsection 19(3). This amendment reflects changes made to section 20 of the
Disability Services Act by Item 5 of this Bill (removing the requirement to have the
provision of rehabilitation programs approved). It also provides when the Secretary,
under the Disability Services Act, must not enter into arrangements under new
subsection 20(1) for the provision of rehabilitation programs for persons in the target
group. Under new subsection 19(2) the Secretary must not enter into such
arrangements unless:
the person providing the program holds a current certificate of compliance; or
there are exceptional circumstances relating to one or more persons in the
target group that justify the taking of measures or the entry into the
arrangements.
However, subsection 19(3) provides the Secretary with flexibility to enter into an
arrangement with a provider of rehabilitation programs despite the provider not
holding a current certificate of compliance. This is where the arrangement is for the
provision of programs for less than 12 months or the Secretary is of the opinion that
the provider is likely to hold a certificate of compliance at the end of the 12 months
after the arrangement commences. This amendment is necessary as some new
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Legislation Amendment
(Welfare to Work and Rehabilitation Services)
Bill 2006
Schedule 1 - Amendments
providers who are successful in tendering for Vocational Rehabilitation Services may
not have sufficient time to obtain a certificate of compliance before the
commencement of their contract on 1 July 2007. It is consistent with Part II of the
Disability Services Act which provides a similar 12 months grace for new Disability
Employment Network and Business Services providers to achieve certification.
Item 5 repeals the current section 20 and inserts new subsections 20(1), (2) and (3).
The repeal of the current subsection 20(1) removes the requirement that the provision
of rehabilitation programs for people in the target group need to be individually
approved under the Disability Services Act.
New subsection 20(1) operates so that, subject to section 21 (restriction of
rehabilitation programs to Australian citizens), the Secretary may on the
Commonwealth's behalf enter into arrangements for the provision of rehabilitation
programs or follow up programs that the Secretary considers necessary or desirable.
However, as provided for by subsection 19(1) in entering into any arrangements the
Secretary must comply with any guidelines that are in place under section 5.
New subsection 20(2) and (3) reflect existing subsections 20(5) and (6) and provide
for the types of services that the Secretary has the discretion to provide or arrange to
be provided for the purposes of rehabilitation programs or in connection with
rehabilitation programs.
Item 6 inserts new subsection 21A(1AA) which provides that paragraph 21A(1)(a) of
the Disability Services Act does not apply to the provision of a rehabilitation program
if the person is required to undertake a specified activity under the Social Security Act
and the activity is or includes a rehabilitation program.
Current section 21A of the Disability Services Act requires the provision of a
vocational rehabilitation program to cease where a person requests this in writing.
This applies to all program participants, including job seekers with participation
requirements under the Social Security Act.
Under the Welfare to Work changes that commenced on 1 July 2006, some people
will have compulsory requirements to participate in an employment service, including
a vocational rehabilitation service program based on a Job Capacity Assessment or
other assessment.
This provision makes it clear that volunteers such as people receiving disability
support pension can still choose to end their participation in a vocational rehabilitation
program.
Item 7 provides the application provision for Item 6 with the effect that the
amendment to section 21A will apply to any rehabilitation program being provided at
the time of the commencement of the Item (being Royal Assent) or subsequent to the
commencement of the Item.
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Legislation Amendment
(Welfare to Work and Rehabilitation Services)
Bill 2006
Schedule 1 - Amendments
Item 8 and 9 make amendments to section 22 as a consequence of the provision of
rehabilitation programs no longer needing to be individually approved under the
Disability Services Act.
Item 10 provides a savings provision in relation to decisions about costs of programs
made prior to 1 July 2007. These decisions will continue to be effective after the
changes to section 22 made by this Bill.
Items 11 to 14 amend section 27 to remove the current reference to officer, replacing
the references with the new definition of Commonwealth employee. This means that
information under section 27 can be requested by, and provided to, a Commonwealth
employee as is defined in section 4 (see Item 1).
Item 15 has the effect of ensuring that other amendments made by the Bill do not
impact on any of the powers that the Minister may or may not delegate.
Item 16 repeals the current section 34 which deals with the Secretary's ability to
delegate his or her powers and substitutes new subsections 34(1) and (2). Subsection
34(1) provides that the Secretary may delegate his or her powers under Part III to an
officer as defined in section 4 (see Item 2); and any other powers under the Disability
Services Act (other than approvals under subsection 6B(1)) to an APS employee in
the Department.
The effect of this amendment is that the Secretary may delegate under Part III his or
her powers more broadly than what is currently provided for under the Disability
Services Act.(see Item 2). However, subsection (2) ensures that in exercising powers
under the delegation, the delegate must comply with any directions of the Secretary.
The ability to delegate powers other than those under Part III is not changed. Current
subsections (2) and (3) are not replaced in new section 34 because these are
effectively dealt with through the Acts Interpretation Act 1901.
Item 17 provides a limited time override rule for the purposes of making Guidelines
under section 5 of the Disability Services Act that relate to Part III. Currently, section
5 requires any Guidelines to be tabled in Parliament, followed by 15 sitting days,
before they will take effect. This amendment allows for the Guidelines to take effect
in accordance with the Legislative Instruments Act 2003 (upon registration with the
Federal Register of Legislative Instruments). The Guidelines would still be subject to
disallowance by Parliament in accordance with the rules applying to other legislative
instruments. The limited override only applies between Royal Assent of the Act and
1 July 2007. This is required because the Guidelines are intended to be remade to
reflect amendments made by this Bill and should also commence on 1 July 2007,
consistent with the commencement of Vocational Rehabilitation Services
contestability and the amendments to the Disability Services Act. Without the limited
override, the Guidelines may otherwise have a commencement date later than 1 July
2007.
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House of Representatives Employment and Workplace Relations
Legislation Amendment
(Welfare to Work and Rehabilitation Services)
Bill 2006
Schedule 1 - Amendments
Social Security Act 1991
Item 18 makes a technical amendment to note 1 in subsection 1061A(1) to refer to
Division 3 of Part 2.21 rather than referring to repealed 1047A.
Under Welfare to Work some people who move from disability support pension
(DSP) or parenting payment to newstart allowance or youth allowance are able to
retain their pensioner education supplement until they complete their current course of
study.
Items 21 and 28 make it clear that people who claimed DSP between 11 May 2005
and 30 June 2006 who were qualified for the pensioner education supplement and
who move to newstart or youth allowance, will only be able to continue to access the
pensioner education supplement, if they no longer qualified for DSP as a result of
their first DSP review after 1 July 2006. Items 19, 20, 22 to 27 and 29 to 32 make
technical amendments to the pensioner education supplement provisions for both DSP
and parenting payment recipients who move to newstart or youth allowance to ensure
that the provisions operate in accordance with intended policy.
The changes made by Items 33, 34, 37, 38, 40, 41 and 42 reflect changed terminology
in the social security law. As social security payments are now made in respect of
'instalment periods', the term 'pension period' is omitted from section 1187 and the
term 'instalment period' is substituted.
Items 35, 36 and 39 make technical amendments including the repeal of
subparagraphs 1187(1A)(a)(vi) and (2)(a)(ii) removing the reference in these
provisions to rehabilitation allowance. Rehabilitation allowance is no longer a
payment available under the Social Security Act. Similarly, Item 43 repeals
subsection 1187(3) as this subsection operates on the basis of rehabilitation allowance
being paid.
The change made by Item 44 ensures that the income test is correctly applied in
situations involving members of a couple where a CDEP Scheme payment is payable
to one member of the couple while their partner is receiving a social security
payment. Currently, paragraph 118C(3)(e) treats the CDEP Scheme payment as part
of the ordinary income of the partner of the person who is actually receiving the
payment. The amendment made by Item 44 correctly treats the payment as part of the
ordinary income of the person to whom the CDEP Scheme payment is payable for the
purposes of calculating the rate of the other partner's social security payment.
Stated broadly, section 1188C is concerned with the effect of receiving CDEP
Scheme payments where the person (or the person's partner) is also receiving a social
security payment. One element relevant to that consideration is working out the
person's 'threshold'. This is the purpose of the Table in subsection 1188C(5). For the
purposes of identifying the correct threshold, the Table refers to certain characteristics
of the person (eg not a member of a couple) and on that basis then refers the reader to
appropriate sections in the relevant rate calculators. Under the Welfare to Work
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(Welfare to Work and Rehabilitation Services)
Bill 2006
Schedule 1 - Amendments
changes, a person can be granted an exemption from the activity test under 602C(3) or
(3A) (for newstart allowance purposes) and 542FA(3) or (3A) (for youth allowance
purposes). Where such a determination is made, the rate calculators provide for a
higher rate of payment. The changes made by Items 45 and 46 ensure that the Table
in subsection 1188C(5) sets the correct threshold for people who are the subject of a
determination under the provisions referred to above.
Item 47 has the effect of removing a redundant note at subsection 1224D(1) but
retaining the note flagging that interest may be payable if a person has a debt. Item 48
inserts a new subsection 1224D(3) to make a technical amendment in the advance
payment period definition relevant for mobility allowance advances. This definition is
relevant in the calculation of advance payment of mobility allowance debts. The note
at this new subsection makes it clear that any reduction in the advance payment period
that would have occurred under section 1044A (because of a person qualifying for a
higher rate of mobility allowance during a standard rate advance period) is not to be
taken into account for the purposes of the definition. Item 49 provides for an
application provision of Item 48.
Item 50 amends section 1228 adding a new subsection 1228(3). This provides that if
an amount is paid under the scheme administered by the Commonwealth known as
Financial Case Management to, or for the benefit of a person, and the amount should
not have been made and the person is receiving a social security payment then the
amount is an overpayment that is recoverable through deductions of the person's
social security payments. Financial case management is a process that assists eligible
job seekers with the payment of essential expenses up to the level of income support
they would otherwise have received while they are serving an eight-week
non-payment period imposed under the Social Security Act.
However, where a person has received Financial Case Management assistance and
was not entitled to it - for example because they had undeclared income or, following
a successful appeal, they subsequently received income support payments for the
period in which assistance was provided - it is appropriate that the value of any
assistance provided under the scheme is recovered by the Commonwealth from the
job seeker.
Section 1231 sets out the ways in which deductions may be made from a person's
social security payment and Item 51 makes an amendment to this section by
including a reference to new subsection 1228(3) so it applies to this new subsection.
Item 52 provides an application provision to the amendments made by Items 50 and
51. The application provision has the effect that Items 50 and 51 apply to any
payments of Financial Case Management assistance and to any social security
payments made after Royal Assent.
Social Security (Administration) Act 1999
The social security law allows for a recipient's social security payment to be indexed
or adjusted by the operation of Part 3.16 of the 1991 Act. These adjustments are made
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Legislation Amendment
(Welfare to Work and Rehabilitation Services)
Bill 2006
Schedule 1 - Amendments
automatically. However, given the large volume of social security law recipients
affected by such determinations to adjust or index their payment, and the fact that the
Government routinely issues media releases announcing the new rates, no individual
notice of these determinations is sent.
The decision not to issue a notice in this regard is consistent with subparagraph
27A(2)(c)(ii) of the Administrative Appeals Tribunal Act 1975. The effect of the
amendment at Item 53 is to deem a social security recipient to have been given a
notice informing them of the decision to increase their rate in line with indexation.
Notification of this determination is taken to have been given on the day on which the
amount was indexed or adjusted.
Item 54 provides the application provision to the amendment made by Item 53.
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House of Representatives Employment and Workplace Relations
Legislation Amendment
(Welfare to Work and Rehabilitation Services)
Bill 2006
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