|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Parliamentary Joint Committee on Human Rights |
|
Purpose
|
This legislative instrument specifies a class of persons, described as
Compulsory Participants, for the purposes of paragraph 500(1)(ca)
of the
Social Security Act 1991, requiring them to participate in the
ParentsNext program in order to be in continued receipt of the Parenting
Payment
|
|
Portfolio
|
Education, Skills and Employment
|
|
Authorising legislation
|
|
|
Last day to disallow
|
15 sitting days after tabling (tabled in the Senate and the House of
Representatives on 2 February 2021). Notice of motion to disallow
must be given
by 11 May 2021 in the Senate[2]
|
|
Rights
|
Social security; adequate standard of living; privacy; equality and
non-discrimination; rights of the child; work; education
|
1.74 The committee requested a response from the minister in relation to the bill in Report 2 of 2021.[3]
1.75 This legislative instrument provides that a specific class of persons receiving parenting payment may be required to participate in the ParentsNext
pre-employment program in order to remain eligible for the payment.[4]
1.76 A person would fall within this class if, on or after 1 July 2021, they:
(a) reside in a 'jobactive employment region';[5]
(b) have been receiving parenting payment for a continuous period of at least six months prior to that day;
(c) have a young child who is between nine months and six years of age;
(d) have not engaged in work in the six month period immediately prior;
(e) are aged under 55 years; and
(f) are either
(i) an 'early school leaver' (that is, aged under 22 years and have not completed the final year of school);[6] or
(ii) are aged at least 22 years and have not completed their final year of school and have been receiving an income support payment for a continuous period of at least two years prior, or have completed their final year of school and have received an income support payment for a continuous period of at least four years immediately prior.[7]
1.77 Participation in the ParentsNext program may require that a person: attend playgroups or similar activities; complete further education and training (such as literacy and numeracy courses); or undertake referrals to services to address
non-vocational barriers to employment like confidence building, health care or counselling.[8]
1.78 A person who is a compulsory participant would also be subject to the targeted compliance framework under the Social Security (Administration) Act 1999. Under this framework, where an individual fails to comply with their participation obligations their payment may be suspended, and where they are deemed to have persistently failed to meet their obligations without a reasonable excuse, their payment may be reduced by 50 to 100 per cent for a period, suspended, or cancelled.[9] An individual may also be exempted from participation requirements due to specified circumstances including domestic violence, temporary incapacity, and some caring responsibilities.[10]
1.79 This measure provides access to a program which is intended to provide early support to young parents with a lower level of educational attainment to help them plan and prepare for employment before their youngest child starts school, including by participating in educational activities or activities with their children. In this respect, it may engage and promote the rights to work, education, and the rights of the child. The right to work requires that, for full realisation of that right, steps should be taken by a State including 'technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and productive employment'.[11] The right to education provides that education should be accessible to all.[12] In addition, as the measure is aimed at disrupting intergenerational disadvantage and reducing the risk of long-term welfare dependency for participating parents and their children, it may promote the rights of the child. Children have special rights under human rights law taking into account their particular vulnerabilities.[13] These rights are protected under a number of treaties, particularly the Convention on the Rights of the Child.
1.80 However, by making participation in the ParentsNext program compulsory, and providing that a person who fails to participate may have their parenting payment reduced, suspended or cancelled, this measure also engages and may limit several other human rights including the rights to: social security; an adequate standard of living; and a private life.[14] These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to (that is, likely to achieve) that objective and is a proportionate means of achieving that objective. The measure also engages and limits the right to equality and non-discrimination. Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.[15]
1.81 Further information is required in order to assess the compatibility of this measure with the rights to social security, an adequate standard of living, privacy and equality and non-discrimination, in particular:
(a) what percentage of participants in the ParentsNext program are: Indigenous; from a culturally and linguistically diverse background; or identify as a person with disability;
(b) how reducing, suspending or cancelling a person's parenting payment where they fail to participate in the ParentsNext program would be effective to remove barriers to employment and education, and stabilise family life for those participants;
(c) how many compulsory participants in the ParentsNext program have had their payments suspended, reduced or cancelled, and what is the average duration in each case;
(d) how it is proportionate to the stated aim of this measure to reduce, suspend or cancel a participant's parenting payments for a failure to meet their engagement requirements under the ParentsNext program;
(e) whether other, less rights restrictive alternatives to compulsory participation have been considered, and why other, less rights restrictive alternatives (such as voluntary participation, or voluntary participation incentivised by an additional financial payment) would not be effective to achieve the stated aims of the measure; and
(f) what safeguards are in place to ensure that persons whose parenting payment is reduced, suspended or cancelled following a mutual obligation failure have funds available to meet their basic needs, and those of their children.
1.82 The committee noted that the ParentsNext program is intended to provide early support to young parents with a lower level of educational attainment to help them plan and prepare for employment before their youngest child starts school, and as such, this program would appear to engage and promote a number of human rights, including the rights to work, education, and the rights of the child.
1.83 However, the committee noted that making this participation compulsory, and causing a person's parenting payment to be reduced, suspended or cancelled should they fail to appropriately engage in the program, may engage and limit the rights to: social security, an adequate standard of living; a private life; and equality and non-discrimination. The committee noted that these rights may be permissibly limited where a limitation is reasonable, proportionate and necessary.
1.84 The committee considered that further information was required to assess the human rights implications of this bill, and as such sought the minister's advice as to the matters set out at paragraph [1.81].
1.85 The full initial analysis is set out in Report 2 of 2021.
1.86 The minister advised:
ParentsNext is a highly successful pre-employment program that helps parents plan and prepare for employment before their youngest child starts school. Parents receive personalised assistance to help them identify their education and employment goals, improve their work readiness and link them to services in the local community.
The Instrument streamlines eligibility requirements for ParentNext participants from 1 July 2021. The changes to eligibility will better support those parents most in need and ensure all participants have access to financial assistance to help them achieve their education and employment goals. The Participation Fund, a flexible pool of funds to support work preparation expenses of participants, and access to wage subsidies will be available to all participants. This assistance is currently only available to those in the Intensive stream (40 per cent of participants).
This Instrument does not introduce compulsory participation or the Targeted Compliance Framework (TCF) to ParentsNext participants. The TCF has applied to ParentsNext participants since the national roll-out of the program on 1 July 2018.
In relation to the Committee's request for further information regarding participation requirements for ParentsNext, please find my responses below.
(a) what percentage of participants in the ParentsNext program are: Indigenous; from a culturally and linguistically diverse background; or identify as a person with disability
Percentage of ParentsNext participants by Indigenous, CALD, and Disability status as at 28 February 2021* |
|
Indigenous |
18 per cent |
CALD |
21 per cent |
Persons with Disability |
15 per cent |
*A participant who identifies with more than one of the above characteristics is included separately in each column
(b) how reducing, suspending or cancelling a person's parenting payment where they fail to participate in the ParentsNext program would be effective to remove barriers to employment and education, and stabilise family life for those participants
This instrument makes no changes to the program's participation requirements or consequences for non-compliance. Compulsory participation in active labour market programs has been shown to result in significantly better outcomes for participants.
ParentsNext continues to demonstrate positive outcomes for parents. Between 1 July 2018 and 28 February 2021:
• 69,528 participants had commenced education;
• 35,153 participants had commenced employment; and
• 4,909 participants had exited the program after achieving stable employment.
Participants are protected from lasting impacts to their payment by safeguards built into the TCF which is designed to give participants every opportunity to meet the mutual obligations that they have agreed with their provider (see further information below).
(c) how many compulsory participants in the ParentsNext program have had their payments suspended, reduced or cancelled, and what is the average duration in each case
Payment suspensions occur when a participant does not meet their participation requirements. Suspensions are lifted with full back-pay once a participant contacts their provider with a valid reason-for example if they or their child is/was unwell. As income support payments are made fortnightly, payment suspensions typically do not result in any delay in the person accessing their payment.
Since 7 December 2020, participants have two business days' 'resolution time' to contact their provider to discuss why they were unable to meet their participation requirement, or to reengage. Where this occurs, there is no payment suspension. For ParentsNext this has resulted in 3 5 per cent fewer payment suspensions.
Before ParentsNext participants face any lasting penalty for not meeting their requirements, they attend two assessments to ensure their requirements are appropriate for their circumstances and there is no undisclosed information affecting their capacity to meet requirements. One of these assessments is undertaken by the participant's provider, the other by Services Australia.
Payment reductions and cancellations are targeted to only those participants who have not met their requirements on at least five prior occasions, without a valid reason. As at 28 February 2021, ParentsNext has assisted more than 156,000 parents.
ParentsNext compliance events 2 July 2018 – 28 February 2021 |
||
Type |
Parents |
Average duration |
Parenting Payment Suspensions |
52,343 |
5 |
Parenting Payment Reductions |
10 |
14 |
Parenting Payment Cancellations* |
1,072 |
28 |
*If a person's payment remains on hold for more than 28 days, their income support payment is cancelled, and they must reapply
(d) how it is proportionate to the stated aim of this measure to reduce, suspend or cancel a participant's parenting payments for a failure to meet their engagement requirements under the ParentsNext program
ParentsNext is designed with a focus on meeting the needs of parents. It is flexible, recognises parents' caring responsibilities, does not require them to look for work, and incorporates family friendly sites and activities.
ParentsNext participants are only required to attend a quarterly appointment with their provider. Aside from this quarterly appointment, participants are required to negotiate and agree to a participation plan which identifies education and employment goals, and participate in an agreed activity to assist in working towards those goals. Activities range from attending playgroups or similar activities, which provide social connections and networking opportunities for parents with limited work history, and significant non-vocational barriers, through to further education and training for parents who are work ready. Activities are agreed between the participant and provider and must take into account the participant's personal circumstances, including caring responsibilities. There is no minimum hourly participation requirement.
Compulsory requirements have been shown to be very effective in enabling participants to achieve significantly better outcomes. The achievement of better outcomes for participants is directly relevant to the stated aims of the ParentsNext program.
Where parents are genuinely unable to participate exemptions from requirements can be applied by the provider or Services Australia. There are a range of reasons why exemptions can be applied including due to domestic violence, caring responsibilities, sickness or injury.
(e) whether other, less rights restrictive alternatives to compulsory participation have been considered, and why other, less rights restrictive alternatives (such as voluntary participation, or voluntary participation incentivised by an additional financial payment) would not be effective to achieve the stated aims of the measure
Evidence from earlier similar pilots to the current ParentsNext program (Helping Young Parents and Supporting Jobless Families) in Australia showed significantly better results when the activity requirements were compulsory. Participating in Helping Young Parents (where participating in activities was compulsory) increased the chance of a person attaining a Year 12 or equivalent qualification by 14 percentage points, compared with a more modest 3 percentage points in Supporting Jobless Families (where participation in activities was voluntary).
ParentsNext is designed to engage the most disadvantaged parents. Parents who have experienced long-term disadvantages may not be fully aware of the program's benefits and opportunities for further support, and as a result can be reluctant to participate voluntarily. While parents can volunteer to participate, they rarely do. Since 1 July 2018 only 946 parents have volunteered to participate in the program.
While the most disadvantaged parents are less likely to seek assistance to improve their education or work readiness, program evidence shows that approximately 75 per cent of ParentsNext participants-that is, highly disadvantaged parents-report an improvement in their motivation to achieve their work or study goals. Additionally, the evaluation of the ParentsNext program found that a ParentsNext participant was 6.9 percentage points more likely to participate in employment than a comparable parent who did not participate in the program.
Compulsory participation requirements are necessary to ensure that the most disadvantaged parents receive the support they need. While an incentive based approach may encourage some parents to volunteer, it would be significantly less effective in targeting support to those most in need.
(f) what safeguards are in place to ensure that persons whose parenting payment is reduced, suspended or cancelled following a mutual obligation failure have funds available to meet their basic needs, and those of their children
The TCF is designed to ensure only participants who are persistently and wilfully non-compliant incur financial penalties while providing protections for the most vulnerable.
Suspensions and penalties under the TCF only affect payments made in respect to the person themselves, such as Parenting Payment. Payments and supplements paid for the support of a person's children such as Family Tax Benefit (FTB) and child care assistance are not affected by the application of the TCF. Rent Assistance for parents is almost always paid through FTB, so it would also be unaffected by any penalties. The rate of payments and supplements paid for the support of a person's child depends on the individual and family circumstances.
1.87 The committee thanks the minister for this response. The committee notes that this legislative instrument specifies a class of persons receiving parenting payment, who may be required to participate in the ParentsNext pre-employment program in order to remain eligible for the payment.
1.88 The committee considers further information is required to fully assess the compatibility of this legislative instrument with human rights. The committee has therefore resolved to conduct a short inquiry into this instrument. The committee is particularly interested in seeking evidence in relation to the following issues:
(a) whether and how it has been demonstrated that participants in the ParentsNext program who have had their Parenting Payment reduced, suspended or cancelled for non-compliance are able to meet their basic needs (and those of their children) in practice, such that they have an adequate standard of living, and whether and how this is assessed before payments may be affected;
(b) the extent to which the ParentsNext program operates flexibly in practice, such that it treats different cases differently (including for parents in regional areas and Indigenous parents);
(c) the extent to which participation in the ParentsNext program meets its stated objectives of effectively addressing barriers to education and employment for young parents in practice, and whether making participation compulsory is effective to achieve those objectives;
(d) what consultation has there been with Indigenous groups in relation to the compulsory participation of Indigenous peoples in the ParentsNext program;
(e) whether, and based on what evidence, it has been demonstrated that less rights restrictive alternatives to compulsory participation (such as voluntary or incentivised participation) would not be as effective to achieve the stated objectives of this scheme; and
(f) the extent to which linking welfare payments to the performance of certain activities by the welfare recipient is consistent with international human rights law, particularly the rights to social security, an adequate standard of living, equality and non-discrimination, a private life, and the rights of the child.
1.89 The committee notes that the disallowance period for this legislative instrument ends in the Senate on 11 May 2021.[17] The committee notes that the disallowance procedure is the primary mechanism by which the Parliament may exercise control over delegated legislation. As the committee has agreed to conduct an inquiry into the instrument, the committee has resolved to place a protective notice of motion to disallow the instrument, to extend the disallowance period by a further 15 sitting days (to 11 August 2021) in order to protect parliamentary control over the instrument pending completion of the committee's inquiry.
1.90 The committee will conclude on this matter once it has concluded its inquiry.
1.91 The committee has no comment in relation to the following bills which were introduced into the Parliament between 22 to 25 March 2021. This is on the basis that the bills do not engage, or only marginally engage, human rights; promote human rights; and/or permissibly limit human rights:[19]
• Broadcasting Legislation Amendment (2021 Measures No. 1) Bill 2021;
• Charter of Budget Honesty Amendment (Rural and Regional Australia Statements) Bill 2021;
• Competition and Consumer Amendment (Motor Vehicle Service and Repair Information Sharing Scheme) Bill 2021;
• Mitochondrial Donation Law Reform (Maeve’s Law) Bill 2021; and
• Snowy Hydro Corporatisation Amendment (No New Fossil Fuels) Bill 2021.
1.92 The committee has examined the legislative instruments registered on the Federal Register of Legislation between 3 to 21 March 2021.[20] The committee has reported on one legislative instrument from this period earlier in this chapter. The committee has determined not to comment on the remaining instruments from this period on the basis that the instruments do not engage, or only marginally engage, human rights; promote human rights; and/or permissibly limit human rights.
1.93 The committee notes that the following private member's bill appears to engage and may limit human rights. Should this bill proceed to further stages of debate, the committee may request further information from the legislation proponent as to the human rights compatibility of the bill:
• Commonwealth Environment Protection Authority Bill 2021.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Social Security (Parenting payment participation requirements – class of persons) Instrument 2021 [F2021L00064], Report 5 of 2021; [2021] AUPJCHR 48.
[3] Parliamentary Joint Committee on Human Rights, Report 2 of 2020 (24 February 2021),
pp. 58-66.
[4] This legislative instrument is made pursuant to subsection 500(1)(ca) of the Social Security Act 1991.
[5] This term is defined in section 4 of the instrument to mean 'a geographical region in Australia in which employment services were delivered by one or more jobactive employment service providers on 1 December 2020'.
[8] Statement of compatibility, p. 6.
[9] The Social Security (Administration) Act 1999 sets out the compliance framework associated with mutual obligations. See, Part 3, Division 3AA.
[10] Social Security Act 1991, Chapter 2, Part 2.10, Division 3A.
[11] International Covenant on Economic, Social and Cultural Rights, article 6(2).
[12] International Covenant on Economic, Social and Cultural Rights, article 13.
[13] Convention on the Rights of the Child. See also, UN Human Rights Committee, General Comment No. 17: Article 24 (1989) [1].
[14] If the right to an adequate standard of living is limited in this context, such that it restricts the capacity of a parent to provide for the basic needs for their child, this would also engage and limit the rights of the child.
[15] UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].
[16] The minister's response to the committee's inquiries was received on 12 March 2021. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[17] The disallowance period for this legislative instrument ended in the House of Representatives on 22 March 2021.
[18] This section can be cited as Parliamentary Joint Committee on Human Rights, Bills and instruments with no committee comment, Report 5 of 2021; [2021] AUPJCHR 49.
[19] Inclusion in the list is based on an assessment of the bill and relevant information provided in the statement of compatibility accompanying the bill. The committee may have determined not to comment on a bill notwithstanding that the statement of compatibility accompanying the bill may be inadequate.
[20] The committee examines all legislative instruments registered in the relevant period, as listed on the Federal Register of Legislation. To identify all of the legislative instruments scrutinised by the committee during this period, select 'legislative instruments' as the relevant type of legislation, select the event as 'assent/making', and input the relevant registration date range in the Federal Register of Legislation’s advanced search function, available at: https://www.legislation.gov.au/AdvancedSearch.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AUPJCHR/2021/48.html