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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This bill seeks to amend a number of Acts in relation to social security
to:
• allow jobseekers to manage their job plans online within
departmental guidelines;
• amend the social security law to provide legislative authority for
spending for employment programs;
• amend the targeted compliance framework to ensure that sanctions
need not be imposed when recipients of participation payments
have a valid
reason for failing to meet their requirements;
• ensure that payments from government employment programs to assist
jobseekers with finding work do not need to be declared
as income to Centrelink
and do not reduce a jobseeker's payment;
• clarify the administrative process for declarations of approved
programs of work;
• clarify that certain Commonwealth workplace laws do not apply in
relation to a person's participation in Commonwealth employment
programs;
• clarify that young people who are participating in full-time study
as part of a job plan are considered jobseekers and not
students for the
purposes of the Youth Allowance income-free area;
• align payment commencement for jobseekers referred to online
employment services with those who are referred to a provider;
and
• repeal spent provisions relating to ceased programs
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Portfolio
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Education, Skills and Employment
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Introduced
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House of Representatives, 27 May 2021
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Rights
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Work; education; social security; adequate standard of living; equality and
non-discrimination; privacy
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2.50 The committee requested a response from the minister in relation to the bill in Report 7 of 2021.[2]
2.51 Schedule 1 of the bill seeks to set out the requirements for 'employment pathway plans' in the Social Security Act 1991 (Social Security Act) and Social Security (Administration) Act 1999 (Social Security Administration Act), which some social welfare recipients must comply with to qualify for a social welfare payment. While the requirement to enter into an employment pathway plan already exists,[3] Schedule 1 would re-make this requirement by establishing a single set of 'employment pathway plan requirements' relating to Job Seeker, Parenting Payment, Youth Allowance and Special Benefit.[4] These would require that a person must:
(a) satisfy the employment pathway plan requirements (by entering into a plan and complying with it),[5] and satisfy the Employment Secretary that they are willing to actively seek and to accept and undertake suitable paid work in Australia; or
(b) have an exemption from their requirements,[6] and satisfy the Employment Secretary that were it not for the circumstances giving rise to the exemption, they would be willing to actively seek and to accept and undertake suitable paid work in Australia.[7]
2.52 In addition, the bill would make several other amendments. It would permit a person to use 'technological processes' where entering into or varying an employment pathway plan,[8] and so self-manage their employment plan (as opposed to the current requirement that they engage with a job services provider).[9] Schedule 8 would insert additional provisions establishing the start date from which a person who has used technological processes will be taken to have entered into an employment pathway plan relating to Job Seeker or Youth Allowance.[10]
2.53 In addition, the bill would insert a new provision to provide that 'paid work' will not be considered 'unsuitable' for a person merely because the work is not the person's preferred type of work; the work is not commensurate with the person's highest level of educational attainment or qualification; or the level of remuneration for the work is not the person's preferred level of remuneration.[11] In addition, the bill would amend the existing exemptions from the employment pathway plan requirements, including by establishing a new general exemption provision whereby the Employment Secretary may make a determination that a person is not required to satisfy the employment pathway plan requirements if they are satisfied in all the circumstances that the person should not be required to satisfy these requirements, whether or not the circumstances were in the person's control (although not circumstances attributable to the person's misuse of alcohol or drugs).[12]
2.54 Compliance with an employment pathway plan is compulsory, and subject to the application of the Targeted Compliance Framework.[13] Currently, where a person fails to comply with their employment pathway plan (that is, commits a 'mutual obligation failure'),[14] the Secretary must suspend (or, where applicable, cancel) their welfare payment.[15] Schedule 3 of the bill seeks to amend the Targeted Compliance Framework by providing that the Secretary 'may' (as opposed to must) suspend or cancel their payments.
2.55 Provisions establishing a requirement to enter into an employment pathway plan as a condition of receiving social welfare payments already exist in the Social Security Act and Social Security Administration Act. This bill would repeal those provisions and separately re-establish the requirement to enter into an employment pathway plan (with some amendments). As this bill inserts a new Division it is therefore necessary to examine in full the provisions sought to be introduced by this bill itself, and not merely those provisions which would alter the existing legislative provisions.
2.56 Entering into an employment pathway plan may, in and of itself, promote the right to work by helping individuals gain employment. The right to work provides that everyone must be able to freely accept or choose their work, and includes a right not to be unfairly deprived of work.[16] It requires that states provide a system of protection guaranteeing access to employment. This right must be made available in a non-discriminatory way.[17] The right to work also 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'.[18] This is recognised in the statement of compatibility.[19] In addition, entering into an employment pathway plan may also promote the right to education where a person completes further study as part of their plan.[20] The right to education provides that education should be accessible to all.[21]
2.57 However, by establishing that particular recipients of Job Seeker, Parenting Payment, Special Benefit and Youth Allowance must enter into and undertake an employment pathway plan in order to qualify for their respective social welfare payment (meaning that their payments may be suspended or cancelled for a failure to comply), this measure engages and appears to limit a number of rights, including the rights to social security and an adequate standard of living. There may also be a risk that aspects of the measure have a disproportionate impact on certain persons, and so engage and limit the right to equality and non-discrimination. This is because Youth Allowance operates with respect to young people; Parenting Payment is a payment specifically for parents (and so may disproportionately impact on women); and Special Benefit is a payment which may be made to non-Australians (and so may disproportionately impact people based on their race). Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate', exclusively or disproportionately affects people with a particular protected attribute (including race, gender and age).[22] In addition, by requiring that persons engage in an employment pathway plan—which may require the ongoing monitoring of the person's educational and job search activities, and permit the Employment Secretary to have regard to their other personal activities—the measure may also engage and limit the right to privacy. The right to privacy includes a requirement that the state does not arbitrarily interfere with a person's private and home life.[23] A private life is linked to notions of personal autonomy and human dignity.
2.58 The right to social security recognises the importance of adequate social benefits in reducing the effects of poverty and plays an important role in realising many other economic, social and cultural rights, in particular the right to an adequate standard of living and the right to health.[24] Social security benefits must be adequate in amount and duration.[25] States must also have regard to the principles of human dignity and non-discrimination so as to avoid any adverse effect on the levels of benefits and the form in which they are provided.[26] They must guarantee the equal enjoyment by all of minimum and adequate protection, and the right includes the right not to be subject to arbitrary and unreasonable restrictions of existing social security coverage.[27] In addition, public authorities are responsible for ensuring the effective administration or supervision of a social security system.[28] The right to an adequate standard of living requires States Parties to take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing for all people in Australia, and also imposes on Australia the obligations listed above in relation to the right to social security.[29]
2.59 The rights to social security, adequate standard of living, equality and non-discrimination and privacy can generally be limited so long as the limitation is prescribed by law, pursues a legitimate objective, is rationally connected to (that is, effective to achieve) that objective and constitutes a proportionate means of achieving that objective.
2.60 In order to assess the compatibility of this measure with the rights to social security, an adequate standard of living, equality and non-discrimination and privacy, further information is required, in particular:
(a) how, and based on what criteria, the Employment Secretary would determine that although a person was meeting their employment pathway plan requirements pursuant to proposed section 40G, they had not satisfied the Secretary as to their genuine willingness to actively seek, accept and undertake paid work in Australia;
(b) how, and based on what criteria, a person subject to an exemption could satisfy the Employment Secretary that (but for the exemption) they would otherwise be willing to actively seek and to accept and undertake paid work in Australia;
(c) what is the objective behind making engagement in an employment pathway plan a compulsory condition on a person's qualification for a social welfare payment, and whether and how that objective constitutes a legitimate objective for the purposes of international human rights law;
(d) whether, how, and based on what evidence is making the requirement that a person engage in an employment pathway plan in order to continue to qualify for a social welfare payment rationally connected (that is, effective to achieve) a legitimate objective;
(e) in relation to the Employment Secretary's discretion to suspend, reduce or cancel a person's welfare payments because of a mutual obligation failure:
(i) on what basis, and in accordance with what guidelines and criteria, is it likely that the Employment Secretary would determine that a person's welfare payments should be suspended, reduced or cancelled;
(ii) who will make this decision (noting the Employment Secretary may delegate their powers and functions);
(iii) whether, in exercising their discretion to suspend or not suspend a person's social welfare payments, the Employment Secretary would make enquiries as to how the individual would meet their basic needs if their payment were to be suspended, and whether a person's disclosing their inability to meet their basic needs if their payment were suspended would be a factor influencing the Secretary's decision about whether or not to suspend the payment;
(f) if a person failed to meet a series of their employment plan requirements, would this trigger an inquiry into that person's welfare, and consideration as to whether their circumstances warrant an exemption from the requirements, and if so how such inquiries would occur;
(g) how the demerit aspect of the Targeted Compliance Framework would operate pursuant to these amendments, and whether a person who had accrued demerits in accordance with the current framework would still be liable to having their payments suspended, reduced or cancelled in the existing manner;
(h) in relation to the use of 'technological processes':
(i) what does arranging for the use of 'technological processes' in relation to persons entering or varying employment pathway plans mean in practice (for example, will this require a person to engage with an app, a website, a phoneline, or a combination of these or other processes);
(ii) to what extent would the use of a technological process require regular access to a computer or smart phone, and a viable internet and/or mobile telephone signal;
(iii) whether a person's practical capacity to access the devices necessary to use a digital platform regularly is part of the assessment of a person's suitability for the use of technological processes;
(iv) what information would be given to individuals to ensure they are aware of their ability to select either online servicing or a job services provider in entering into and administering an employment pathway plan, and what safeguards would ensure persons are not disadvantaged by being inappropriately directed to an online servicing mechanism;
(v) how the proposed amendments in Schedule 8 relating to the start date of a person's social welfare payment would be exercised in practice, and whether a person who intended to accept their job plan online, but had technical difficulties, and who could have telephoned a support line for assistance but failed to, would be found to have not made efforts to address their technical difficulties;
(i) what safeguards are in place to ensure that people are not required to agree to an employment pathway plan that effectively requires them to apply for work that may be unsuitable (noting, for example that some plans may require a certain number of job applications per month and noting also that job opportunities may be more limited in regional and remote areas of Australia);
(j) why other less rights restrictive alternatives to requiring immediate entry into an employment pathway plan would not be as effective to achieve the same objective;
(k) in determining the circumstances in which work may be deemed 'unsuitable', what evidence would a potential employee need to adduce if they believed the workplace may be unsafe because of conduct relating to sexism, racism, homophobia or other bullying or harassment;
(l) whether an individual could seek an exemption from their employment pathway plan requirements on the basis that they are residing in a rural area and are unable to secure employment because of a depressed local labour market, or whether such a person would be required to apply for jobs further from their home;
(m) whether and how the differential treatment in proposed subsection 40L(4) (relating to misuse of drugs and alcohol) is based on reasonable and objective criteria such that it serves a legitimate objective, is effective to achieve that objective and is a proportionate means of achieving it; and
(n) whether 'circumstances wholly or predominantly attributable to' misuse of drugs and alcohol in proposed subsection 40L(4) would encompass ongoing drug and alcohol misuse and diseases that may result from past misuse such as Alcoholic Liver Disease or brain damage, or injuries resulting from accidents when intoxicated where the relevant misuse occurred in the past.
2.61 The committee noted that engagement in an employment pathway plan may, in and of itself, promote the rights to work and education, as it may assist individuals to gain employment or undertake study. However, because the bill links engagement in such a plan with eligibility for social welfare payments, the committee noted that it may also engage and limit a number of human rights including the rights to social security, an adequate standard of living, equality and non-discrimination and privacy. The committee considered 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 [2.60].
2.62 The full initial analysis is set out in Report 7 of 2021.
2.63 The minister advised:
(a) how, and based on what criteria, the Employment Secretary would determine that although a person was meeting their employment pathway plan requirements pursuant to proposed section 40G, they had not satisfied the Secretary as to their genuine willingness to actively seek, accept and undertake paid work in Australia;
The requirement for a person to satisfy the Employment Secretary they are willing to actively seek and to accept and undertake paid work in Australia, except unsuitable paid work, is equivalent to the current and longstanding “activity test” requirement that a person must satisfy the Secretary that they are actively seeking and willing to undertake paid work in Australia except unsuitable work. Usually a person could satisfy the Employment Secretary of this by entering an employment pathway plan and meeting their employment pathway plan requirements or only failing to do so for good reason, or simply making a statement as to their willingness if a delegate asked them, in the absence of any contrary evidence.
In practice, a person would only fail to comply with the requirement in egregious cases where the person actively states that they would be unwilling to accept suitable work if it were offered, or in other rare cases where the person has such a major focus on volunteer work, unprofitable self-employment or some other project that it is incompatible with being willing to actively seek or to accept or undertake paid work.
(b) how, and based on what criteria, a person subject to an exemption could satisfy the Employment Secretary that (but for the exemption) they would otherwise be willing to actively seek and to accept and undertake paid work in Australia;
As with the answer to part (a), provisions ensuring that a person must be willing to look for and accept work replicate elements of the activity test that are still needed, reflecting that a person must be unemployed to qualify for unemployment payments. An exemption does not remove this requirement, although the provisions in Schedule 1 are clear that a person would only be required to be willing to look for and accept work if it were not for the exemption from requirements.
In practice, these provisions would only apply in very egregious cases where a person actively states that they would be unwilling to accept suitable work if it were offered.
(c) what is the objective behind making engagement in an employment pathway plan a compulsory condition on a person's qualification for a social welfare payment, and whether and how that objective constitutes a legitimate objective for the purposes of international human rights law;
Currently under social security law, entry into employment pathway plans is compulsory where a person is required by the Secretary or delegate to enter a plan and this would not change following passage of the Bill.
The legitimate objective behind compulsory employment pathway plans is to ensure that those receiving unemployment payments do all that they are able to support themselves through paid work. The employment pathway plan sets out job seekers’ mutual obligation requirements. There is strong evidence that these requirements increase the chances of and speed the rate at which job seekers find work (see answer to part (d) for a summary of this evidence).
Protections within the current employment pathway plan provisions, and those proposed in the Bill, ensure that job seekers’ circumstances and capacity to comply with their requirements need to be taken into consideration when a person enters into an employment pathway plan with the Secretary, or if a person seeks review of a plan that they have chosen to enter into.
The Bill makes it very clear that a delegate cannot require a person to comply with an employment pathway plan requirement which is not suitable for them – see proposed subsection 40D(5): “The Employment Secretary must not approve requirements which are not suitable for a person” and that in determining what is suitable the person’s circumstances must be considered by the delegate – see proposed subsection 40D(5) and 40F. The Bill also makes clear that plans cannot contain a requirement to seek, accept or undertake unsuitable paid work – see proposed section 40H.
In addition, administrative arrangements under the targeted compliance framework ensure that job seekers will not face a financial penalty for not complying with a term of their employment pathway plan until the appropriateness of their employment pathway plans has been assessed twice – once by their provider (or the Digital Services Contact Centre) and once by Services Australia. In addition, job seekers also will not face financial penalties if they have a reasonable excuse for not meeting a requirement.
The compulsory nature of employment pathway plans therefore promote the right to work, and to the extent that there is any restriction on the right to social security and adequate standard of living, this is minimised, reasonable and proportionate to achieve a legitimate objective.
(d) whether, how, and based on what evidence is making the requirement that a person engage in an employment pathway plan in order to continue to qualify for a social welfare payment rationally connected (that is, effective to achieve) a legitimate objective;
Requiring a person to engage in an employment pathway plan is rationally connected to the legitimate objective of job seekers finding employment and reducing their reliance on income support.
There is a strong evidence base that mutual obligation requirements increase the speed and likelihood of job seekers finding work. For example, the OECD has highlighted the effectiveness of job seeker participation in targeted programs that include job search monitoring and participation in activities that promote motivation and employability[31] (referred to internationally as active labour market programs). One meta-analysis of 207 studies looking at 857 active labour market programs found participation in these programs effective in the short and long term.[32]
There is also strong evidence that making these requirements compulsory, with consequences applying for not complying with requirements, increases employment[33] and engagement with requirements.[34]
In addition, while mutual obligation requirements have existed for many years, requirements have more recently been introduced for some groups of parents. In 2006 and 2007, activity requirements for parents receiving payment were introduced for those with a youngest child aged 6 or over. Administrative data was analysed for the sub-group of parents with a youngest child aged 6 and 7, as this group was given activity requirements but experienced no change in payment rates or other settings. The analysis shows this led to an increase in the average proportion of parents reporting earnings in the years following the changes compared to previously:
• from 30 per cent to 37 per cent for parents of youngest children aged 6; and
• from 32 per cent to 45 per cent for parents of youngest children aged 7.
A 2013 study also found that parent job seekers were more likely to exit income support after the introduction of mutual obligation requirements. Parents of youngest children aged seven were 48 per cent more likely to exit payment in the year after introduction.[35]
As mentioned in the answer to part (c), the employment pathway plan is the method of setting out job seekers’ mutual obligation requirements.
(e) in relation to the Employment Secretary's discretion to suspend, reduce or cancel a person's welfare payments because of a mutual obligation failure:
(i) on what basis, and in accordance with what guidelines and criteria, is it likely that the Employment Secretary would determine that a person's welfare payments should be suspended, reduced or cancelled;
Current provisions in the Social Security (Administration) Act 1999 specify that failures to comply with mutual obligation requirements ‘must’ result in a payment suspension, regardless of whether the person has a good reason for missing their requirement. In practice, this means that in cases where a person has a valid reason for missing a requirement, their payment suspension is ended at the same time it begins – with no practical effect on the payment.
The amendments proposed by the Bill would mean the requirement for this suspension would cease, and instead provide flexibility on whether or not a payment suspension should apply. For example, the amendments more clearly support the current practice of appropriate compliance response to failures by recipients of participation payments to meet requirements, by making clear that sanctions need not be imposed where doing so would not further the objectives of the Targeted Compliance Framework.
The purpose of payment suspension is to motivate a person to reconnect with their employment services provider after a mutual obligation failure. However, the Secretary is currently obliged to suspend a person’s participation payment even if the person has a reasonable excuse for the mutual obligation failure, and even if the person has already reconnected with their provider by the time the mutual obligation failure comes to the Secretary’s attention or before the Secretary has had time to issue a reconnection requirement.
For example, a job seeker might miss an appointment with their provider scheduled for 10am on a day, with or without a reasonable excuse, but of their own volition attend their provider soon after on the same day, before being issued with a reconnection requirement.
In these cases, currently the Secretary suspends the person’s participation payment, but the period of suspension immediately ends, with no practical consequence. Suspension therefore serves no material purpose, so it is appropriate to amend the law as is being done by this Schedule.
As explained in the Explanatory Memorandum, the proposed amendments would more clearly support, not alter, existing practice by not requiring a participant’s payment to be suspended if the participant has a good reason for missing a requirement or if they have already re-engaged with their provider.
Further detail on the operation of the targeted compliance framework is available at:
• https://guides.dss.gov.au/guide-social-security-law/3/11/13 ; and
• https://docs.employment.gov.au/system/files/doc/other/targeted_compliance_framework_1.pdf
The provisions in the Bill will not result in any changes to the processes contained in these documents.
(ii) who will make this decision (noting the Employment Secretary may delegate their powers and functions);
As is currently the case, delegations regarding suspensions will be made to employment services providers and delegations regarding application of penalties will be made to Services Australia. The only changes in delegations will be updated references to powers in social security law as a result of changes in the Bill. No change will be made to the current processes that these delegates are required to follow.
(iii) whether, in exercising their discretion to suspend or not suspend a person's social welfare payments, the Employment Secretary would make enquiries as to how the individual would meet their basic needs if their payment were to be suspended, and whether a person's disclosing their inability to meet their basic needs if their payment were suspended would be a factor influencing the Secretary's decision about whether or not to suspend the payment;
When a person’s payment is suspended they must be notified of how to
re-engage with their requirements and end their payment suspension (a reconnection requirement). In practice, reconnection requirements are to meet the requirement that was missed, or supply a valid reason for not being able to. As outlined in the answer to part (c), requirements need to be achievable and take into account job seekers’ circumstances and capacity to comply.
In December 2020, the Government introduced “resolution time” which allows job seekers two business days to re-engage with their requirements before their payments are suspended. If job seekers are unable to re-engage with their requirements within two business days, their payment suspension is ended.
These arrangements mean that job seekers’ suspensions are within their control and can be ended either through re-engaging with requirements, providing a valid reason for their initial failure to meet their requirement or explaining why they cannot re-engage within two business days.
(f) if a person failed to meet a series of their employment plan requirements, would this trigger an inquiry into that person's welfare, and consideration as to whether their circumstances warrant an exemption from the requirements, and if so how such inquiries would occur;
Current processes and safeguards will remain in place, including two separate and rigorous job seeker capability assessments before a person faces financial penalties for not meeting their requirements.
The first assessment, a Capability Interview, is undertaken by the job seeker’s employment services provider (or the Digital Services Contact Centre for those in online employment services) generally following a third failure without a valid reason. At this assessment, the appropriateness of job seekers’ requirements is examined, and the assessment is designed to prompt job seekers to disclose any circumstances that may affecting their ability to meet their requirements. This may result in job seekers being referred to further assessment or referred to Services Australia for consideration of whether an exemption from requirements is appropriate.
A second similar assessment is undertaken by Services Australia (generally following a fifth failure without a valid reason). In addition, following a missed requirement, employment services providers are generally required to try to contact the job seeker.
(g) how the demerit aspect of the Targeted Compliance Framework would operate pursuant to these amendments, and whether a person who had accrued demerits in accordance with the current framework would still be liable to having their payments suspended, reduced or cancelled in the existing manner;
This Bill makes no changes to processes regarding demerits or to the operation of the Targeted Compliance Framework more generally. As explained in the Explanatory Memorandum, the Bill would better support, not alter, existing practice.
(h) In relation to the use of 'technological processes':
(i) what does arranging for the use of 'technological processes' in relation to persons entering or varying employment pathway plans mean in practice (for example, will this require a person to engage with an app, a website, a phoneline, or a combination of these or other processes);
The provisions in the Bill deliberately do not specify the types of technological processes that may be used so as to allow flexibility to develop the best service for job seekers as technology and service offerings develop. Currently, it is envisaged that job seekers will use online processes to enter or vary their employment pathway plans.
(ii) to what extent would the use of a technological process require regular access to a computer or smart phone, and a viable internet and/or mobile telephone signal;
No job seeker will be required to enter an employment pathway plan through technological processes if they do not have access to, or cannot use, or do not wish to use, relevant technology.
Some technological processes would require access to one or more of the above services or devices. For this reason, before a job seeker is offered the opportunity of entering a plan via the new technological processes, they will have their circumstances assessed. Job seekers who are assessed as job-ready and able to use and access digital services will be able to choose to manage their requirements online.
However, human oversight and assistance also remain an integral part of all employment services and will continue to do so. At any time, job seekers will be able to contact a person in the Digital Services Contact Centre who is trained to answer their questions and assist them with any difficulties.
The amendments also require that all job seekers will have the option of entering an employment pathway plan with a human delegate – see proposed subsection 40A(3).
(iii) whether a person's practical capacity to access the devices necessary to use a digital platform regularly is part of the assessment of a person's suitability for the use of technological processes;
Yes, assessment of digital literacy and access is part of the process of determining whether somebody is able to enter into an employment pathway plan through technological processes. Proposed paragraph 40A(3)(b) says that a person may be given the option to enter a plan through technological processes, taking account of their circumstances. Whether or not a person has digital literacy and access is part of their circumstances.
(iv) what information would be given to individuals to ensure they are aware of their ability to select either online servicing or a job services provider in entering into and administering an employment pathway plan, and what safeguards would ensure persons are not disadvantaged by being inappropriately directed to an online servicing mechanism;
Before a job seeker is offered the opportunity to enter into an employment pathway plan using technological processes, they will have their circumstances assessed. Job seekers who are assessed as job-ready and able to use and access Digital Services will be able to choose to manage their requirements online. These job-ready job seekers can also choose to be referred to a provider. Job seekers who are not assessed as job-ready will be referred to a provider to manage their requirements.
Again, the Bill also ensures that a person must be given the option of entering into an employment pathway plan with a human delegate when being given the requirement to enter into an employment pathway plan – see proposed subsection 40A(3).
Safeguards built into the Digital Employment Services Platform will ensure people do not get left behind, including a Digital Services Contact Centre to provide advice and extra support via phone or email. In addition, existing safeguards built into compliance arrangements will ensure that before anybody faces any financial penalty for not meeting their requirements they will have the appropriateness of their requirements for their individual circumstances assessed twice, at a Capability Interview and a Capability Assessment with human delegates. Further, job seekers are able to move to a provider of their choice at any time if they feel the online service is not meeting their needs.
(v) how the proposed amendments in Schedule 8 relating to the start date of a person's social welfare payment would be exercised in practice, and whether a person who intended to accept their job plan online, but had technical difficulties, and who could have telephoned a support line for assistance but failed to, would be found to have not made efforts to address their technical difficulties;
Schedule 8 sets out that a job seeker’s payment start date will not be delayed when the delay in completing their job plan is for a reason beyond their control. The specific notification processes for the measure are yet to be developed and will be finalised ahead of the 1 July 2022 implementation date.
(i) what safeguards are in place to ensure that people are not required to agree to an employment pathway plan that effectively requires them to apply for work that may be unsuitable (noting, for example that some plans may require a certain number of job applications per month and noting also that job opportunities may be more limited in regional and remote areas of Australia);
There are a range of legislative criteria in the Bill that prevent job seekers being compelled to apply for unsuitable work. An employment pathway cannot contain a requirement to look for, accept, or undertake unsuitable paid work – see proposed section 40H which applies in relation to both traditional plans and plans entered through technological processes. Further, due to proposed subsection 40D(5) and 40F, when a job seeker enters an employment pathway plan with the Employment Secretary (in practice a delegate), the delegate must consider a range of matters in determining requirements, including requirements about the number of job searches. The matters which must be considered include the person’s capacity to comply;
• the state of the local labour market;
• the participation and transport options available to the person;
• the length of travel time to comply with those requirements.
These legal protections are supplemented by administrative protections. For example, if a person considers that their requirements are unsuitable, they may contact their provider or the Digital Services Contact Centre in order to reduce their requirements. Further, if for some reason, a person’s employment pathway plan does contain requirements above their capacity, two assessments of the appropriateness of their employment pathway plan will be undertaken before they face financial penalties for not meeting those requirements (see answer to part (f)).
(j) why other less rights restrictive alternatives to requiring immediate entry into an employment pathway plan would not be as effective to achieve the same objective;
The measure implemented by schedule 8 of the Bill builds on alternative approaches. For example, currently job seekers in online employment services may not receive their payment until they sign an employment pathway plan. However, job seekers’ payment is back-dated to claim once they sign their employment pathway plan. These arrangements are referred to as ‘RapidConnect’ and evidence in the Evaluation of jobactive Interim Report shows that these processes speed the time to engagement with employment services.
However, in July 2018 provisions equivalent in effect to those contained in Schedule 8 were introduced for provider-managed job seekers. Introduction of these measures further reduced the time to commencement in employment services by two days on average.
The measure at schedule 8 would address the current inequity whereby the start date for job seekers’ income support payments depends on whether they are referred to online employment services or referred to an employment services provider.
Protections will also remain for job seekers who are unable to connect for a reason outside of their control – and the provisions in the Bill explicitly provide that payment will not be delayed in these circumstances. This could occur, for example, when a job seeker experiences illness, an accident, or inability to access IT services.
Some job seekers may also be exempt from the measure, consistent with existing arrangements that apply to provider-managed job seekers. This means they will receive their payment immediately after their claim has been processed. These exemptions cover, for example:
• Job seekers who are transferring from another payment.
• Job seekers who have an exemption from mutual obligations.
• Job seekers who are referred for further assessment at the time they lodge their claim.
Job seekers self-managing using online employment services can also contact the Digital Services Contact Centre if they need assistance or have any questions, for example in relation to agreeing to their Job Plan or meeting their requirements.
(k) in determining the circumstances in which work may be deemed 'unsuitable', what evidence would a potential employee need to adduce if they believed the workplace may be unsafe because of conduct relating to sexism, racism, homophobia or other bullying or harassment;
There are no specified evidence requirements needed to satisfy providers or delegates in Services Australia that work was unsuitable. However, it would also be open to a delegate to accept evidence from a jobseeker, if it were available, and to conclude on that basis that particular work is unsuitable for the jobseeker.
(l) whether an individual could seek an exemption from their employment pathway plan requirements on the basis that they are residing in a rural area and are unable to secure employment because of a depressed local labour market, or whether such a person would be required to apply for jobs further from their home;
Job seekers requirements are adjusted to ensure their requirements are appropriate and achievable – including if they live in a rural area or live in a depressed labour market. However, job seekers are not usually completely exempted from requirements merely due to living in a rural area. The Bill will not change this situation.
There are existing safeguards relating to the extent to which a person can be expected to seek, accept or undertake jobs some distance from their home. The Bill will not change this – see for example proposed paragraphs 40X(1)(f) and (h) regarding unreasonably difficult commutes and work which requires a person to move from home.
Recognising the unique social and labour market conditions in remote Australia, a different employment service exists in remote Australia. The Community Development Program (CDP) is the Government’s remote employment and community development service. CDP supports job seekers in remote Australia to build skills, address barriers to employment and contribute to their communities through a range of flexible activities.
(m) whether and how the differential treatment in proposed subsection 40L(4) (relating to misuse of drugs and alcohol) is based on reasonable and objective criteria such that it serves a legitimate objective, is effective to achieve that objective and is a proportionate means of achieving it; and
The provisions in subsection 40L(4) replicate existing provisions in social security law, and arrangements would not alter following passage of the Bill.
A fundamental principle of mutual obligation requirements is that job seekers must do all that they are able to in order to support themselves through paid work – including addressing drug or alcohol misuse. Participation in drug and alcohol treatment may count towards other mutual obligation requirements, and if job seekers cannot meet a requirement due to a circumstance wholly or predominantly due to drug or alcohol misuse, this may be a reasonable excuse (however, there are restrictions on repeatedly using drug and alcohol as a reasonable excuse if a person has refused appropriate and available treatment).
Further explanation of the objective, legitimate and proportionate nature of subsection 40L(4) is contained in the Statement of Compatibility with Human Rights for Schedule 13 of the Social Services Legislation Amendment (Welfare Reform) Act 2018 at
https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5927
(n) whether 'circumstances wholly or predominantly attributable to' misuse of drugs and alcohol in proposed subsection 40L(4) would encompass ongoing drug and alcohol misuse and diseases that may result from past misuse such as Alcoholic Liver Disease or brain damage, or injuries resulting from accidents when intoxicated where the relevant misuse occurred in the past.
The provisions in subsection 40L(4) replicate existing provisions in social security law, and arrangements would not alter following passage of the Bill.
Exemptions are intended for circumstances where a person is temporarily unable to meet their requirements. For this reason, a person would generally not be eligible for an exemption solely due to the impact of a permanent condition. In these cases, a person would be assessed for a partial capacity to work, or potentially have their eligibility assessed for other payments such as Disability Support Pension.
Where a person has a disability or illness, regardless of the cause, this must be considered in setting the person’s mutual obligation requirements.
A job seeker may also be eligible for a temporary medical incapacity exemption if they experience a temporary exacerbation of a permanent condition, which would be considered a result of the medical condition – not the circumstances which caused the medical condition.
2.64 As noted at paragraph [2.59], the rights to social security, adequate standard of living, equality and non-discrimination and privacy can generally be limited so long as the limitation is prescribed by law, pursues a legitimate objective, is rationally connected to (that is, effective to achieve) that objective and constitutes a proportionate means of achieving that objective.
2.65 Further information was sought as to the meaning of proposed section 40G (which provides that the Employment Secretary may determine that although a person is meeting their employment pathway plan requirements, they have not satisfied the Secretary as to their genuine willingness to actively seek, accept and undertake paid work). The minister stated that a person would only fail to comply with this requirement where they actively stated that they would be unwilling to accept suitable work if it were offered, or in other rare cases where the person had 'such a major focus on volunteer work, unprofitable self-employment or some other project that it is incompatible with being willing to actively seek or to accept and undertake paid work'. As to where an individual is subject to an exemption, and would still be required to satisfy the Secretary that but for that exemption, they would be willing to actively seek and accept and undertake paid work, the minister stated that these provisions would only apply in 'very egregious cases where a person actively states that they would be unwilling to accept suitable work if it were offered'. This information would appear to indicate that the requirement of being 'willing to undertake' paid work will be met in most cases. However, there may be a risk that there are cases where a person is undertaking volunteer work or another project but is unsure when those activities may be considered to reach the threshold of being incompatible with being willing to actively seek or to accept and undertake paid work. The development of guidelines would have the capacity to assist in providing clarity.
2.66 Further information was sought as to the objective behind making engagement in an employment pathway plan a compulsory condition on a person's qualification for a social welfare payment. The minister stated that the objective behind compulsory employment pathway plans is to ensure that those people who receive unemployment payment do all that they can to support themselves through paid work, which thereby promotes the right to work. Measures which are intended to promote the right to work would generally be considered to have a legitimate objective for the purposes of international human rights law.
2.67 Further information was also sought as to whether, how and based on what criteria making the requirement that a person engage in an employment pathway plan in order to qualify for a social welfare payment is rationally connected to achieving a legitimate objective. The minister stated that there is strong evidence that mutual obligation requirements increase the speed and likelihood of job seekers finding work.[36] The minister further stated that there is strong evidence that making these requirements compulsory, with consequences applying for not complying with requirements, increases employment and engagement with requirements. If the evidence demonstrates that mutual obligation requirements do lead more people to finding paid work, the measure would be rationally connected to the stated objective.
2.68 However, it is noted that the evidence which the minister has cited as to the effectiveness of mutual obligation requirements contains some nuanced findings. For example, the articles cited also note that: where job seekers are already relatively well-qualified, the monitoring of their job seeking may merely cause an inefficient shift from informal to formal job-search methods;[37] that some studies call into question the effectiveness of mutual obligations in securing long-term stable employment, and suggest mutual obligations lead to higher incidences of part-time employment;[38] and that programs with numerical job application requirements per month risk generating employer complaints about too many solicitations.[39] In addition, one article argues that job search assistance programs and other programs that include monitoring of search are designed to push participants into the labour market quickly and are unlikely to have large long term effects.[40]
2.69 The minister also cited evidence that making job search requirements compulsory (subject to consequences) increases employment and engagement with requirements themselves. However, it is noted that this evidence likewise contains nuanced findings.[41] For example, a 2013 study found that the imposition of sanctions while a person is unemployed reduces their subsequent employment stability, and that affected persons have a tendency to exit the social welfare scheme (that is, paid employment) for unregistered unemployment in order to avoid pressures exerted by the sanction system and to 'gain' more (unpaid) job search time. The study found that sanctions on job seekers had a persistent negative effect on their
post-unemployment earnings, and that the imposition of sanctions (that is, the actual reduction in social welfare payments) further exacerbates this negative effect. It concluded that the positive effects of leaving unemployment more quickly do not outweigh these effects of benefit sanctions, and that job seekers who are confronted with or a benefit sanction tend to reduce their demands concerning the quality of the post-unemployment job, being more likely to accept a job offer more quickly at the cost of a reduced employment and/or lower earnings.[42]
2.70 Based on the minister's advice, there would appear to be evidence indicating that instituting a mutual obligation to apply for, accept and undertake paid work in order to qualify for a social welfare payment may be effective to cause a person to gain paid work. As such the measure may be rationally connected to (that is, effective to achieve) its stated objective. However, it is noted there is also evidence which raises questions as to the effectiveness of this process in securing sustainable and ongoing employment, and the nexus between mutual obligations and a negative ongoing impact on the person's post-unemployment earnings. This raises some questions as to the effectiveness of mutual obligations in achieving the stated goal of ensuring that people do all they can to support themselves with their own earnings, and thereby promoting the right to work.
2.71 Further information was sought as to the proportionality of different aspects of the proposed measure.
Proposed amendments to the mutual obligation scheme
2.72 Further information was sought in relation to the proposed discretion for the Employment Secretary to suspend, reduce or cancel a person's welfare payments because of a mutual obligation failure (as opposed to the current mandatory requirement). The minister stated that these amendments would more clearly support the current practice of 'appropriate compliance responses' where a person has failed to meet a mutual obligation. The minister stated that this makes clear that sanctions need not be imposed where doing so would not further the objectives of the Targeted Compliance Framework—that is, to motivate a person to reconnect with their employment services provider after a mutual obligation failure. The minister indicated that this amendment is intended to capture circumstances where a person misses a relevant appointment and then re-connects with their employment services provider within the same day, meaning that while their payment currently must be suspended that suspension served no practical purpose. As such, it would appear that this introduction of a discretion to suspend, or not to suspend, a person's social welfare payment for non-compliance will be exercised in the same manner as the current suspension and Targeted Compliance Framework is operating. In this regard, the minister advised that the bill would not alter the processes regarding demerits under the Targeted Compliance Framework. That is, a person who had accrued demerits in accordance with the current framework would still be liable to having their payments suspended, reduced or cancelled in the existing manner. Consequently, it would appear that amending the Secretary's existing power to suspend a social welfare payment in this manner would be, in practice, neither rights promoting nor rights limiting, because it will not alter the existing manner in which the Target Compliance Framework is applied.
Use of technological processes
2.73 Further information was also sought in relation to the use of technological processes in relation to those entering into, or varying, employment pathway plans, and what these may entail. The minister advised that the bill deliberately provides for future flexibility as technology and service offerings develop. He stated that it is envisaged that job seekers will use online processes to enter into or vary their employment pathway plans, and accessing such processing would require the use of a computer or smart phone. However, the minister noted that job seekers will not be required to enter into an employment pathway plan in this manner, but will only be able to do so where they have been assessed as job-ready and able to use and access digital services. The minister stated that this would include an assessment of the person's digital literacy, as well as their access.
2.74 As to how individuals would be made aware of their choice to use either digital processes or a human delegate to enter and manage their employment pathway plan, the minister stated that the bill ensures that people must be given the option when they are required to enter into such a plan. The minister further stated that where a person has entered such a plan using digital services, they will be able to access the Digital Services Contact Centre for support, and there is the existing safeguard of two capability assessments before any financial penalties are imposed, to ensure job requirements in a plan are appropriate for the individual. The minister further noted that job seekers can move to a provider of their choice at any time. These may all serve as useful safeguards to ensure that people who may not have regular access to a phone, tablet or computer with regular internet access are not inappropriately signed up to manage their employment pathway plan online. However, it is noted that the extent to which these operate as effective safeguards may only become apparent as a matter of practice. That is, while individuals may have the choice to use either online services or a job services provider, their understanding of making that choice (and the implications in either case) from the outset would be important factors in assessing whether individuals will not be inappropriately directed to online servicing.[43] As such, it would appear that for some people, the introduction of digital processes will have no impact on their capacity to enter into and undertake an employment pathway plan. However, some questions remain as to whether disadvantaged and otherwise vulnerable welfare recipients will have sufficient information in order to inform their decision of whether to agree to managing their employment pathway plan online or not.[44] If they are not provided with sufficient information to exercise their choice, there may be a risk that some vulnerable individuals who elect to use technological processes may be disadvantaged in practice. It appears much will depend on the effectiveness of processes in place to ensure applicants are aware of the phone, computer and internet requirements for managing a plan using technological processes.
2.75 In relation to the proposed amendments in Schedule 8 (relating to the start date of a person's social welfare payments when they applied online), the minister stated that a person's start date for social welfare would not be delayed if the cause of the delay in completing a job plan was beyond their control. However, the minister also stated that the specific notification processes are not yet developed. As such, some questions remain as to how circumstances will be assessed as being outside a person's control, and whether and how a person's ability to have sought assistance over the phone with technical problems may delay the start date of their social welfare payment.[45]
Unsuitable work
2.76 Further information was sought as to whether safeguards are in place to ensure that people are not required to agree to an employment pathway plan that effectively requires them to apply for work that may be unsuitable (noting, for example that some plans may require a certain number of job applications per month and noting also that job opportunities may be more limited in regional and remote areas of Australia). The minister stated that the relevant delegate must consider a range of matters when a person enters an employment pathway plan, including requirements about the number of job searches, having regard to the person's capacity to comply. The minister state that this would include consideration of the local labour market, participation and transport options available and the length of travel time to comply with those requirements. In addition, the minister noted that a person may contact their provider (or the Digital Services Contact Centre) to reduce their requirements, and that these matters would be considered at a capability assessment if this were to take place. These have the capacity to serve as important safeguards to ensure that people are not effectively required to apply for jobs that may be unsuitable for them. However, it is relevant that the Social Security Guide states that job seekers living in a metropolitan area or within 90 minutes travel time to a metropolitan area would typically be expected to have 20 job searches per month, and in regional areas with limited vacancies and where the travel time to a stronger labour market is more than 90 minutes, it might be appropriate that only 15 job searches per month be required.[46] Considering that this is the general guidance provided to delegates, there would appear to be a risk that job seekers will apply for positions for which they are unqualified or otherwise unsuited in order to meet their minimum number of applications per month. Consequently, the safeguards which provide that certain offers of employment are unsuitable for an individual are of considerable significance.
2.77 In relation to the circumstances in which work may be deemed 'unsuitable', information was sought as to the evidence a potential employee would need to adduce if they believed the potential workplace may be unsafe because of conduct relating to sexism, racism, homophobia or other bullying or harassment. The minister stated that there are no specified evidence requirements needed to satisfy providers or delegates in Services Australia that work is unsuitable for a potential employee. The minister stated that it would be open to a delegate (that is, a job services provider employee) to accept evidence from a person and conclude on that basis that the particular work would be unsuitable for them. The proposed legislative basis for this would appear to be the residual catch-all category in proposed subsection 40X(1)(i): 'for any other reason, the work is unsuitable to be done by the person'. However, it would appear that there may, therefore, be instances in which a provider or delegate may not accept evidence and conclude on that basis that particular work is unsuitable. Further, it remains unclear how job seekers would know that they can refuse a job offer where they believe the workplace may be unsafe because of conduct relating to sexism, racism, homophobia or other bullying or harassment, and whether job services providers would themselves be aware that this may be a legitimate basis on which to find that an offer of employment was not suitable. In addition, it is not clear what a person would need to demonstrate to make out their case that work was unsuitable. For example, if a person had merely considered the behaviour of another employee raised concerns that this would risk being an unsafe workplace, it would appear that a job services provider would have a wide degree of discretion in terms of whether to accept this as a basis for refusing a job offer. Under international human rights law, the State remains responsible for a private contractor, and must ensure that a private actor does not compromise equal, adequate, affordable and accessible social security.[47] As the minister has not provided information as to how the Employment Secretary would guide the making of such decisions or assess the sufficiency of any such decision by a provider, this raises concerns as to the State's oversight of these decisions in practice. This, in turn, raises concerns with respect to the proportionality of the proposed measure, noting that if paid work was found to be suitable, a failure to accept an offer of employment could constitute a mutual obligation failure and cause a person's social welfare payment to be suspended, reduced or cancelled.
Less rights restrictive alternative
2.78 Further information was sought as to why other less rights restrictive alternatives to requiring immediate entry into an employment pathway plan would not be as effective to achieve the same objective. That is, why would it be less effective to provide job seekers with social welfare payments with no conditions for an initial set period of time, only after which they would be required to enter into an employment pathway plan (if they were still unemployed). The minister provided information related to the proposed amendments in Schedule 8 regarding the start date for social welfare payments where a person has applied online, but not in relation to why other less rights restrictive alternative would not be as effective. As such, it remains unclear that a less rights restrictive alternative would not be as effective to achieve the stated objective of this measure.
Exemptions from employment pathway plan requirements
2.79 Further information was also sought as to the operation of exemptions from employment pathway plan requirements, for example on the basis that a person is residing in a rural area and unable to secure employment because of a depressed local labour market, or whether such a person would be required to apply for jobs further from their home. The minister stated that job seekers are not usually completely exempted from requirements merely due to living in a rural area, but that job seeker requirements are adjusted to ensure they are appropriate and achievable. The minister noted that existing safeguards relating to the extent to which a person may be expected to seek jobs some distance from their home will remain in place, including where a commute to work would be unreasonably difficult. The minister further noted that job seekers in remote areas of Australia are supported by the Community Development Program. These existing safeguards would appear to have the capacity to regulate the number of activities which a person in a rural area, or in a depressed labour market more generally, would be required to undertake per month (that is, factors beyond that person's control which impact on their ability to gain employment would be taken into account). However, it would appear that such factors would not be anticipated to form the basis for an exemption from employment pathway plan requirements under proposed subsections 40L(2) and (3). It would appear that there may, therefore, be a risk that a cohort of social welfare recipients who live in rural areas with a depressed job market are required to agree to and undertake an employment pathway plan and face considerable challenges in designing such a plan with 'appropriate and achievable' outcomes, and complying with any such plan.
2.80 Proposed subsection 40L(4) states that a person cannot be exempted from their employment pathway plan requirements due to circumstances which are wholly or predominantly attributable to the person's misuse of alcohol or other drugs (unless they are a declared program participant). Further information was also sought as to whether and how this differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is effective to achieve that objective and is a proportionate means of achieving it. The minister stated that a fundamental principle of mutual obligation requirements is that job seekers must do all that they are able to in order to support themselves through paid work – including addressing drug or alcohol misuse. In this respect, he advised that participation in drug and alcohol treatment may count towards other mutual obligation requirements, and if a person cannot meet a requirement due to a circumstance wholly or predominantly due to drug or alcohol misuse, this may be a reasonable excuse (however, there are restrictions on repeatedly using drug and alcohol as a reasonable excuse if a person has refused appropriate and available treatment). The minister further stated that 'circumstances wholly or predominantly attributable to' misuse of drugs and alcohol in proposed subsection 40L(4) is intended for circumstances where a person is temporarily unable to meet their requirements. He stated that a person would generally not be eligible for an exemption solely due to the impact of a permanent condition. In these cases, a person would be assessed for a partial capacity to work, or potentially have their eligibility assessed for other payments such as Disability Support Pension. Further, where a person has a disability or illness, regardless of the cause, the minister stated that this must be considered in setting the person’s mutual obligation requirements. The minster further noted that a person may also be eligible for a temporary medical incapacity exemption if they experience a temporary exacerbation of a permanent condition, which would be considered as a result of the medical condition – not the circumstances which caused the medical condition.
2.81 Based on this information, the proposed measure would appear to be accompanied by a number of measures such that a person who experiences alcohol and other drug abuse health issues on a temporary basis may be eligible for a temporary exemption, and that where this rose to the level of a disability they may be assessed for an alternative social welfare payment. There would, however, appear to remain a risk that a cohort of persons would fall in the middle of these two categories – not meeting the requirements for a temporary exemption, but not with a condition found to rise to the level of a disability for the purposes of the disability support pension. Further, the minister stated that the fundamental principle of mutual obligation requirements is that job seekers must do all that they are able to in order to support themselves through paid work – including addressing drug or alcohol misuse. However, it is not clear how limiting the extent to which a person's drug or alcohol misuse (and any health conditions flowing therefrom) may be taken into consideration in establishing exemptions from job search activities, and therefore exposing the person to the risk of payment suspension, reduction or cancellation, would be effective to help that person to address the drug or alcohol misuse itself. Indeed, the withdrawal of income support payments may appear to risk exacerbating substance abuse problems rather than encouraging their treatment, and may risk exposing the individual to other harms (if they were unable to meet their basic needs such as food and rent expenses). As previously stated by the committee when this power was introduced,[48] it appears unlikely that suspending, reducing or cancelling a person's welfare payment for non-compliance with an employment pathway plan requirement because of circumstances attributable to the person's misuse of alcohol or other drugs, which may impair their ability to afford basic necessities, will be considered proportionate to the legitimate objectives of the measure as a matter of international human rights law.
Concluding comments
2.82 As noted, a number of measures in the bill engage and limit the rights to social security, adequate standard of living, equality and non-discrimination and privacy. These rights can generally be limited provided the limitation pursues a legitimate objective, is rationally connected to (that is, effective to achieve) that objective and constitutes a proportionate means of achieving that objective.
2.83 The objective behind compulsory employment pathway plans, being to ensure that people who receive unemployment payment do all that they can to support themselves through paid work, would appear to generally be capable of constituting a legitimate objective for the purposes of international human rights law.
2.84 With respect to rational connection, there would appear to be evidence indicating that instituting a mutual obligation to apply for, accept and undertake paid work in order to qualify for a social welfare payment may be effective to cause a person to gain paid work. However, there are some questions as to the effectiveness of this process in securing sustainable and ongoing employment, and as to the nexus between mutual obligations and a potential negative ongoing impact on the person's post-unemployment earnings. This raises some questions as to the effectiveness of mutual obligations in achieving the stated goal of ensuring that people do all they can to support themselves with their own earnings, and thereby promoting the right to work
2.85 Finally, several questions remain as to whether specific proposed measures are sufficiently circumscribed and accompanied by sufficient safeguards such that they would constitute a proportionate means by which to achieve the stated objective. In this regard, some questions remain as to whether sufficient safeguards will operate to ensure that individuals without regular access to mobile phones or computers with internet will not inappropriately elect to enter into and manage their employment pathway plans online. In addition, it is not clear that the proposed requirement to seek, accept and undertake only work which is not 'unsuitable' would effectively protect individuals from workplaces which may be unsafe for them without exposing them to the risk of a mutual obligation failure. Further, some questions remain as to whether other, less rights restrictive alternatives would be ineffective to achieve the stated objective of the measure. Finally, some questions also remain as to whether the proposed exemptions from the employment pathway plan requirements would ensure that job seekers who struggle to meet their obligations because of their rural location, a lack of jobs, or because of health problems associated with alcohol or drug misuse, would not be unfairly disadvantaged due to these factors. As such, it would appear there is some risk that in some circumstances requirements for welfare recipients to enter into and comply with employment pathway plans in order to receive social security may not adequately protect the rights to social security, an adequate standard of living, equality and non-discrimination and a private life.
2.86 The committee thanks the minister for this response. The committee notes that this bill would re-make the requirements for 'employment pathway plans', which some social welfare recipients must comply with in order to qualify for a social welfare payment. It would also introduce the ability to use technological processes to enter into employment pathway plans and make amendments as to what will constitute a suitable offer of employment, and the circumstances in which a person may be exempted from their employment pathway plan requirements. In addition, the bill would amend the Targeted Compliance Framework by introducing a discretion for the Employment Secretary to suspend a person's social welfare payments for a mutual obligation failure (noting that they are currently required to suspend payments in these circumstances).
2.87 The committee notes that this bill is intended to shorten and simplify social security law, making it clearer and more accessible. The committee considers that, having regard to the existing complexity of this law, this is an important aim.
2.88 The committee notes that engagement in an employment pathway plan may, in and of itself, promote the rights to work and education, as it may assist individuals to gain employment or undertake study. However, because the bill links engagement in such a plan with eligibility for social welfare payments, the committee notes that it may also engage and limit a number of human rights including the rights to social security, an adequate standard of living, equality and non-discrimination and privacy. The committee notes that these rights can generally be limited provided the limitation pursues a legitimate objective, is rationally connected to (that is, effective to achieve) that objective and constitutes a proportionate means of achieving that objective.
2.89 The committee considers that the measure is directed towards a legitimate objective (that is, ensuring that people who receive unemployment payment do all that they can to support themselves through paid work). The committee also considers that the proposed measure may be effective to achieve its objective, however it notes that there are some questions about the effectiveness of mutual obligations in causing a person to secure sustainable and ongoing employment.
2.90 The committee also considers that some questions remain as to whether specific proposed measures are sufficiently circumscribed and accompanied by sufficient safeguards such that they constitute a proportionate means by which to achieve the stated objective. In particular, the committee considers that it is unclear whether the proposed expanded use of technological processes to manage employment pathway plans will ensure that individuals without regular access to mobile phones or computers with internet do not inappropriately elect to enter into and manage their employment pathway plans online. In addition, the committee considers that it is not clear that the proposed requirement to seek accept and undertake only work which is not 'unsuitable' may effectively protect individuals from workplaces which may be unsafe for them without exposing them to the risk of a mutual obligation failure. Further, the committee notes that some questions remain as to whether a less rights restrictive alternative may be effective to achieve the stated objective of the measure.
2.91 Finally, the committee notes that some questions remain as to whether the proposed exemptions from the employment pathway plan requirements may ensure that job seekers who struggle to meet their obligations because of circumstances beyond their control (for example, because of their rural location, a lack of jobs, or because of health problems associated with alcohol or drug misuse) would not be disadvantaged due to these factors. As such, the committee considers there is some risk that in some circumstances requirements for welfare recipients to enter into and comply with employment pathway plans in order to receive social security may not adequately protect the rights to social security, an adequate standard of living, equality and non-discrimination and a private life.
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Suggested action
2.92 The committee further considers that the proportionality of the
proposed measure may be assisted were the bill amended to require
that
guidelines must be established to:
(a) outline the circumstances in which a person may satisfy their
employment pathway plan requirements, including as to how a person
must
demonstrate that they are willing to actively seek and to accept and undertake
paid work in Australia (including where they
are subject to an
exemption);
(b) set out the kind of information which must be provided to a person
applying for a social welfare payment regarding their ability
to enter into an
employment pathway plan either through a job services provider or via
technological processes, and what using technological
requirements will
necessitate (e.g. regular access to a phone with credit, regular access to a
computer with internet, self-reporting
each week); and
(c) set out the types of circumstances in which a workplace may be
unsafe for a person, and what a person would need to demonstrate
that they
consider a workplace may be unsafe.
2.93 The committee recommends that both the explanatory memorandum and
the statement of compatibility be updated to include the extensive
information
provided in the minister's response.
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2.94 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021, Report 9 of 2021; [2021] AUPJCHR 85.
[2] Parliamentary Joint Committee on Human Rights, Report 7 of 2020 (16 June 2021), pp. 27-49.
[3] The explanatory memorandum notes that there are currently four sets of employment pathway plan provisions separately dealing with Youth Allowance, Job Seeker, Parenting Payment and Special Benefit. See, p. 7.
[4] The explanatory memorandum states that this is intended to shorten and simplify the Social Security Act which currently provides for employment pathway plan requirements in separate parts of the legislation, explanatory memorandum, p. 41.
[5] The phrase 'satisfies the employment pathway plan requirements' would be defined per Schedule 1, item 12, subsection 23(1).
[6] Pursuant to Schedule 1, item 123, Division 2A, Subdivision C, proposed sections 40L – 40U.
[7] Schedule 1, item 123, proposed Division 2A. These general requirements would be applied specifically to each of the relevant payment: Schedule 1, item 19, proposed subsection 500(2A) (relating to qualification for Parenting Payment); item 28, proposed subsection 540(2) (relating to qualification for Youth Allowance); item 70, proposed subsection 593(1AC) (relating to qualification for Job Seeker); item 85, proposed subsection 729(2B) (relating to qualification for Special Benefit).
[8] Schedule 1, item 123, proposed section 40B.
[9] The general requirements relating to employment pathway plans include the requirement to attend provider appointments. See, Social Security Guide, 3.11.2 Job Plans (Version 1.282, 10 May 2021) https://guides.dss.gov.au/guide-social-security-law/3/11/2#:~:text=2%20Job%2 0Plans,Overview,requirements%20under%20social%20security%20law
(accessed 2 June 2021).
[10] See, in particular, Schedule 8, item 14, proposed clause 4B.
[11] Schedule 1, item 123, proposed subsection 40X(6).
[12] Schedule 1, item 123, proposed section 40L.
[13] Pursuant to Division 3AA of the Social Security (Administration) Act 1999.
[14] A 'mutual obligation failure' is defined in section 42AC of the Social Security (Administration) Act 1999 to include a failure to comply with a requirement to enter into an employment pathway plan; a failure to attend (or be punctual for) an appointment or activity they are required to attend as part of their plan; and other matters.
[15] Section 42AF, Social Security (Administration) Act 1999.
[16] International covenant on Economic, Social and Cultural Rights, articles 6–7. See also, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [4].
[17] International Covenant on Economic, Social and Cultural Rights, articles 6 and 2(1).
[18] International Covenant on Economic, Social and Cultural Rights, article 6(2).
[19] Statement of compatibility, p. 16.
[20] See, Schedule 1, item 123, proposed subsection 40G(2).
[21] International Covenant on Economic, Social and Cultural Rights, article 13.
[22] Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.
[23] The UN Human Rights Committee further explains that this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. General Comment No. 16: Article 17 (1988).
[24] International Covenant on Economic, Social and Cultural Rights, article 9. See also, UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (2008).
[25] UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (2008) [22].
[26] UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (2008) [22].
[27] UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (2008) [4] and [9].
[28] UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (2008) [11].
[29] International Covenant on Economic, Social and Cultural Rights, article 11.
[30] The minister's response to the committee's inquiries was received on 24 June 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.
[31] OECD (2015). Employment Outlook 2015 – Activation policies for more inclusive labour markets, OECD Publishing.
[32] Car, D., Kluve, J., Weber, A., (2018). What Works? A Meta Analysis of Recent Active Labour Market Program Evaluations. Journal of the European Economic Association, 16(3).
[33] See for example: Arni, P., Lalive, R. and Van Ours, J. (2013) ‘How Effective Are Unemployment Benefit Sanctions? Looking Beyond Unemployment Exit’, Journal of Applied Econometrics, 28, 1153–1178; Abbring, J., Van den Berg, G. and Van Ours, J. (2005) ‘The Effect of Unemployment Insurance Sanctions on the Transition Rate from Unemployment to Employment’, The Economic Journal, 115, 505, 602–630; Van den Berg, G., Van der Klaauw, B. and Van Ours, J. (2004) ‘Punitive Sanctions and the Transition Rate from Welfare to Work’ Journal of Labor Economics, 22, 1, 211–241 and Van der Klaauw, B. and Van Ours, J. (2013) ‘Carrot and stick: How re-employment bonuses and benefit sanctions affect exit rates from welfare’ Journal of Applied Econometrics, 28, 2, 275–296.
[34] See for example: Wright, A., Dollery, B, Kortt, M., Leu, S., (forthcoming) “The Effect of Varying Sanction Values on Future Compliance with Unemployment Benefit Requirements: An Empirical Analysis Using Australian Administrative Data”. Public Administration Quarterly and Wright, A. and Dollery, B. (2020) ‘The impact of sanctions on compliance with unemployment payment requirements: An analysis using 2015/16 Australian national data’. Australian Journal of Labour Economics, 23, 1-20.
[35] Fok and McVicar (2013). Did the 2007 welfare reforms for low income parents in Australia increase welfare exits?, IZA Journal of Labor Policy.
[36] Including by participating in targeted programs that include job search monitoring and participation in activities that promote motivation and employability. See, OECD (2015). Employment Outlook 2015 – Activation policies for more inclusive labour markets, OECD Publishing.
[37] Gerard Van Den Berg and Bas Van der Klaauw 'Counseling and Monitoring of Unemployed Workers: Theory and Evidence from a controlled Social Experiment', International Economic Review, vol. 47, no. 3, 2006, pp. 895–936. See, Organisation for Economic Co-operation and Development (OECD), Employment Outlook 2015 – Activation policies for more inclusive labour markets, 2015, p. 121.
[38] See, Patrick Arni, Rafael Lalive and Jan van Ours, 'How Effective Are Unemployment Benefit Sanctions? Looking Beyond Unemployment Exit', Journal of Applied Econometrics, vol. 28, 2013, pp. 1153–1178; and Gerard Van den Berg and Johan Vikström, 'Monitoring Job Offer Decisions, Punishments, Exit to Work, and Job Quality', Scandinavian Journal of Economics, vol. 116, no. 2, 2014, pp. 284–334. See, OECD, Employment Outlook 2015 – Activation policies for more inclusive labour markets, 2015, p. 122. This section of the report also notes further studies which examine the wider consequences of sanctions and provide evidence that there may be adverse consequences for child welfare, family welfare, and health outcomes. For example, Joshua Rowntree Foundation, Sanctions within conditional benefits systems: a review of evidence (by J Griggs and M Evans), 2010. Other studies have examined the harms caused by behavioural conditionalities, such as attending mandatory sessions with job service providers. See, John David Jordan, 'Welfare grunters or workfare monsters? An empirical review of the operation of two UK 'work programme' centres', Journal of Social Policy, vol. 47, no. 3, 2017, pp. 583–601.
[39] OECD, Employment Outlook 2015 – Activation policies for more inclusive labour markets, 2015, p. 121. In this regard it is noted that Australia has a dedicated phone line for employers to report disingenuous job applications from jobseekers who are in receipt of social welfare payments. See, https://jobsearch.gov.au/employer-reporting-line [Accessed 1 July 2021].
[40] David Card, Jochen Kluve and Andrea Weber, 'What works? A meta analysis of recent active labor market program evaluations', Journal of European Economic Association, vol. 16, no. 3, 2018, p. 906.
[41] See Patrick Arni, Rafael Lalive and Jan van Ours, 'How Effective Are Unemployment Benefit Sanctions? Looking Beyond Unemployment Exit', Journal of Applied Econometrics, vol. 28, 2013, p. 1166. See further, Ruud Gerards and Riccardo Welters, 'Liquidity Constraints, Unemployed Job Search and Labour Market Outcomes' Oxford bulletin of economics and statistics, vol. 82, 2020, p. 625.
[42] Patrick Arni, Rafael Lalive and Jan van Ours, 'How Effective Are Unemployment Benefit Sanctions? Looking Beyond Unemployment Exit', Journal of Applied Econometrics, vol. 28, 2013, p. 1174.
[43] In this regard it is noted that the Services Australia Jobseeker payment page appears to primarily direct applicants to apply for the payment online (describing this as the easiest way to claim), or alternatively over the phone. See, https://www.servicesaustralia.gov.au/individuals/services/centrelink/jobseeker-payment/how-claim#dc-52713-s-208060-208061-208062-208065-208064-208068-208071 [Accessed 2 July 2021]. These concerns were recently noted by community groups in an inquiry into this bill. See, Senate Standing Committee on Education and Employment Legislation Committee, Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021 [Provisions] (June 2021).
[44] While the use of online services has expanded significantly during the COVID-19 pandemic, it is relevant that some community groups have cautioned against relying on the success of that rollout, given the atypical profile of many job seekers who lost their job during the pandemic but were capable of being quickly reabsorbed into the workforce. See, Senate Standing Committee on Education and Employment Legislation Committee, Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021 [Provisions] (June 2021), p. 23.
[45] It is also noted that broader concerns have been raised by community groups about: the risk that job seekers may feel pressured to agree to an online job plans that is not appropriate in order to commence their social welfare payments; and the risk that aligning the payment commencement day for online and offline applicants may have a negative impact on online applicants if their acceptance of their job plan is delayed, see Senate Standing Committee on Education and Employment Legislation Committee, Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021 [Provisions] (June 2021), p. 27–28.
[46] Department of Social Services, Social Security Guide (Version 1.283 – Released 1 July 2021), section 3.11.1.10 setting job search requirements, https://guides.dss.gov.au/guide-social-security-law/3/11/1/10 [Accessed 2 July 2021].
[47] UN Committee on Economic, Social and Cultural Rights, General Comment No.19 on the right to social security (Art. 9), (4 February 2008) [46].
[48] Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) at p. 179-180.
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