Explanatory Memorandum
(Circulated by the authority of the Minister for Social Services, the Hon Christian Porter MP)Statements of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Schedule 1 - Special benefit
This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Schedule
This Schedule amends the Social Security Act to clarify that people serving an income maintenance period for a mainstream payment, such as newstart allowance should not access special benefit during that period.
An income maintenance period is a period of time during which termination payments, for example, redundancy or leave payments, are apportioned and treated as ordinary income for certain social security payments, such as newstart allowance. The effect of the income maintenance period is to either reduce the person's income support payment rate or fully preclude them from receiving payment for the period that the termination payment represents. During this time the person is expected to draw on the resources provided by the termination payment.
An income maintenance period may be reduced or waived if the person is in severe financial hardship because he or she has spent their termination payment on reasonable or unavoidable expenditure.
An income maintenance period does not apply to special benefit. However, if a person is serving an income maintenance period for another income support payment, the longstanding policy is that special benefit, a payment intended for people in financial hardship due to circumstances beyond their control, should not be available to the person.
This amendment confirms that policy position - that people should use their own resources.
Human rights implications
Right to social security
Schedule 1 to the Bill engages the rights to social security contained in article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.
The United Nations Committee on Economic, Cultural and Social Rights (the Committee) has stated that a social security scheme should be sustainable and that the conditions for benefits must be reasonable, proportionate and transparent (see General Comment No.19).
Article 4 of the ICESCR provides that countries may limit rights such as to social security in a way determined by law only in so far as this may be compatible with the nature of the rights contained within the ICESCR and solely for the purpose of promoting the general welfare in a democratic society. Such a limitation must be proportionate to the objective to be achieved.
A central principle underpinning Australia's social security system is that support should be targeted to those in the community most in need in order to keep the system sustainable and fair. The amendment focuses on promoting self-support by requiring people to meet their own living costs for the period of the income maintenance period. People who need immediate financial assistance are able to have their income maintenance period reduced or waived provided if they meet relevant eligibility criteria. In this way, the amendment helps to ensure that immediate access to income support is targeted to those most in need.
To the extent that the changes in Schedule 1 may limit the right to social security, those limitations are reasonable and proportionate to the policy objective of ensuring a sustainable and well-targeted payment system.
Right to an adequate standard of living, including food, water and housing
Article 11 of the ICESCR provides for that everyone is entitled to adequate food, clothing and housing and to the continuous improvement of living conditions.
To the extent that there is an impact on a person's right to an adequate standard of living, including food, water and housing, by virtue of Schedule 1, the impact is limited. A person who is subject to an income maintenance period may have all or part of their income maintenance period waived where the person is in severe financial hardship due to unavoidable or reasonable expenditure as defined in the Social Security Act. Unavoidable or reasonable expenditure includes reasonable costs of living and any other costs that are determined unavoidable or reasonable expenditure in the circumstances in relation to the person.
Therefore, Schedule 1 to the Bill will be compatible with the right to an adequate standard of living as the potential limitations on this right are proportionate to the policy objective of encouraging self-support while providing a safety net as eligible persons can have the income maintenance period reduced or waived.
Right to equality and non-discrimination
To avoid doubt, Schedule 1 is compatible with the right to equality and non-discrimination contained in articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR).
Article 2(1) of the ICCPR obligates each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognised in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (see CCPR General Comment No. 18).
Article 26 not only entitles all persons to equality before the law as well as equal protection of the law, but also prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (see CCPR General Comment No. 18).
Schedule 1 to the Bill will clarify that a person who is serving an income maintenance period and who has disposed of their termination payment on unnecessary expenditure, placing them self in financial hardship, should not be able to be paid special benefit. There will be no differential treatment on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property or birth.
For these reasons, Schedule 1 to the Bill is compatible with the right of equality and non-discrimination.
Conclusion
This Schedule is compatible with human rights. To the extent that it may have limited adverse impact on a person's right to social security, an adequate standard of living and equality and non-discrimination, the limitation is reasonable, proportionate to the policy objective and for legitimate reasons.
Schedule 2 - Family tax benefit
This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Schedule
This Schedule amends the Family Assistance Administration Act to align the timeframes for meeting the Family Tax Benefit (FTB) reconciliation conditions and makes some related amendments, including to the date of effect provisions for consistency.
This consistency will ensure there are equitable arrangements for those individuals who are required to lodge an income tax return and those customers who need to provide their financial year adjusted taxable income amount directly to the Department of Human Services (DHS) while at the same time confirming they are not required to lodge a tax return, to allow reconciliation of their previous income year FTB entitlement.
Human rights implications
Rights to social security and the right to an adequate standard of living
Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right of everyone to social security. Article 11 of the ICESCR recognises the right of everyone to an adequate standard of living and to the continuous improvement of living conditions.
The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.
This Schedule requires FTB recipients to satisfy the relevant reconciliation conditions within one year following the relevant income year. This confirmation timeframe does not restrict FTB recipients from being eligible to receive fortnightly payments of family tax benefit to assist with the costs of raising children. It aligns to those requirements already in place for FTB recipients who are required to lodge their tax returns within one year following the income year.
It is acknowledged there is potential that some individuals will miss out on amounts of FTB such as the supplements, due to notifying their adjusted taxable income after the confirmation timeframe, however, it is a proportional and reasonable requirement to ensure that individuals are paid their correct entitlement at the time they need it most. The individuals impacted by this amendment are required to notify they are not required to lodge a tax return and to advise of their adjusted taxable income from the relevant income year. This is done by a phone conversation or by completing an online statement. Therefore, it is a less burdensome provision than those individuals who have to complete an income tax return in the same confirmation timeframe.
Individuals have been aware of these confirmation timeframes for a number of years already, there have been extensive communications of the requirements, the individuals have been advised of these regularly in letters sent directly to them, on websites and through media reporting of the changes. These changes are going to reflect in legislation what has always been the administrative process.
While the provisions are aligning to the notification requirements that have been long standing and to match the individuals who are required to lodge a tax return, there are mitigation strategies for those who may be unfairly impacted in that the legislation allows for an additional period of time, up to one year after the notification year, if there are special circumstances that prevented the individual from meeting the confirmation timeframe.
Whilst the alignment of the reconciliation times is a legislative change, there will not be any change for FTB recipients relating to the time frames for notifications. There are safeguards in place which ensure that FTB recipients are aware of their obligations and customers have been notified since 1 July 2013 that they must notify within one year of the relevant income year. They receive reminders at key times during the income year about the need to notify to ensure that they notify within the timeframe. Further, there are provisions under family assistance law which enable FTB recipients to seek an extension if there are circumstances which have prevented them from notifying that they are not required to lodge.
Conclusion
The Schedule is compatible with human rights because people are not being restricted from accessing social security payments. Rather, they will now be required to meet their reporting obligations within the same timeframe as those families that are required to lodge their tax returns.
Schedule 3 - Study requirements for social security payments
This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Schedule
This Schedule makes amendments to the Social Security Act to clarify that in assessing full-time study load for youth allowance (student) and for austudy payment, only one course of education is to be taken into account, rather than multiple part-time courses.
Human rights implications
Right to social security
This Schedule engages the right to social security, as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to social security recognises the right of everyone to social security, including social insurance.
The extent to which this Schedule impacts on a person's right to social security is limited. This Schedule makes minor amendments to the Social Security Act to clarify existing policy and practice whereby in assessing whether a person is undertaking a full-time study load for youth allowance (student) or austudy purposes, only one course of education is taken into account.
It is long standing policy that full-time study for student payment purposes is only to be assessed against one course of education. This allows students to be supported financially to complete a course of education in the minimum amount of time and to enter the labour market. This also includes people undertaking combined courses (for example, Bachelor of Commerce/Bachelor of Finance) where a formal arrangement exists to offer the course as one course of study, albeit with two qualification/awards, which have related/complementary subjects and hence enhance a person's employment and career prospects.
Due to the current ambiguity in the Social Security Act, an unintended consequence exists whereby a very small number of students have been assessed as undertaking a full-time study load by undertaking multiple unrelated courses on a part-time basis at the same or across multiple institutions (for example, a Bachelor of Engineering and Bachelor of Fine Arts (Dance)). It is only these people that will be affected by this Schedule and will no longer will eligible for payment. This Schedule will not prevent any other people who are currently assessed as undertaking full-time study in one course of education, from being eligible for payment.
Right to education
This Schedule engages the right to education, as recognised in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Whilst this measure will prevent a very small number of people who are undertaking more than one course of education on a part-time basis from being eligible for youth allowance (student) and austudy, it will have limited impact on their ability to access education.
People wishing to study in this manner are still able to do so; however they will be required to self-fund their studies. However, where a person undertakes at least one of their courses on a full-time basis, they will be assessed as undertaking full-time study for youth allowance (student) and austudy purposes.
The Government's objective is to achieve growth in skills, qualifications and productivity through providing income support to students to assist them to undertake further education and training.
Conclusion
This Schedule is compatible with human rights as it reflects current policy and practice. To the extent that it affects a person's right to social security and education, this limitation will be minor and people will be able to seek assistance where undertaking one course of study on a full-time basis.
Schedule 4 - New apprentices
This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .
Overview of the Schedule
This Schedule amends the definition of new apprentice in the Social Security Act so that the requirements for that definition can be determined by the Minister in a legislative instrument.
It is intended the Minister will determine a requirement for the purposes of the definition of new apprentice is that a fully completed training contract has been submitted for approval to a State Training Authority for the person to undertake a full-time apprenticeship under the scheme known as Australian Apprenticeships. A further requirement may be that the person is undertaking the apprenticeship on a full-time basis or is undertaking a pre-vocational course.
An apprentice is not currently qualified for youth allowance or austudy payment until a state/territory training authority issues a Commonwealth Registration Number (CRN) in respect of the apprentice. The term CRN is soon to become obsolete. Additionally where a person's CRN has been cancelled or suspended, the person can continue to qualify for youth allowance or austudy payment as a new apprentice even though they are no longer undertaking a full-time apprenticeship.
Human rights implications
Right to social security
This Schedule engages the right to social security, as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to social security recognises the right of everyone to social security, including social insurance.
This Schedule does not adversely impact a person's right to social security. This Schedule amends the definition of new apprentice in the Social Security Act so that the requirements for that definition can be determined by the Minister in a legislative instrument. A person who is currently undertaking an apprenticeship will continue to meet the requirements for the definition that will be determined in the proposed legislative instrument.
This measure will only affect those people who are no longer undertaking an apprenticeship but who currently may continue to qualify for youth allowance or austudy payment because they still hold a CRN. This measure does not extinguish the right of those people who are no longer undertaking an apprenticeship to qualify for newstart allowance or youth allowance as a jobseeker. The measure ensures that social security, particularly youth allowance and austudy payment, is appropriately targeted to people who are undertaking full-time apprenticeships.
Right to education
This Schedule engages the right to education, as recognised in Article 13 of the ICESCR.
In particular, Article 13(2)(b) states that secondary education, including technical and vocational secondary education shall be made generally available and accessible to all by every appropriate means and in particular by the progressive introduction of free education.
The Schedule will promote an individual's right to education by providing access to youth allowance or austudy payment, while undertaking an apprenticeship.
This will improve the accessibility of technical and vocational education, as individuals need not miss out on youth allowance or austudy payment due to delays in approving training contracts by a State Training Authority.
This Schedule will therefore expand the accessibility of technical and further education.
This measure will not prevent any people undertaking a full-time apprenticeship who are currently qualified for youth allowance or austudy payment from continuing to be qualified for that payment. This measure will remove the requirement for a person to have a CRN as issued by a State/Territory training authority.
Conclusion
This Schedule is compatible with human rights. This Schedule will continue to ensure access to social security for people undertaking an apprenticeship and will not limit their right to education.
Schedule 5 - Austudy payment assets test
This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Schedule
This Schedule makes amendments to the Social Security Act to clarify that a person is exempt from the assets test for austudy payment if their partner is receiving a relevant pension, benefit, allowance, compensation or has received lump sum compensation as an armed services widow or widower under the Military Rehabilitation Compensation Act 2004 in the past.
Human rights implications
Right to social security
This Schedule engages the right to social security, as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to social security recognises the right of everyone to social security, including social insurance.
The extent to which this Schedule impacts a person's right to social security is limited. This Schedule does not propose to make any changes to the current policy or practice; however aims to clarify the austudy assets test exemptions.
Currently, the Social Security Act states that a person will be exempted from the austudy assets test if their partner is receiving, or has received, a relevant pension, benefit, allowance or other compensation. This has the unintended consequence of exempting people from the assets test if their partner has, at any time in the past, received one of the relevant payments.
Instead, it is the policy intention that a person will be exempted from the assets test if their partner is receiving a relevant pension, benefit, allowance, compensation or has received lump sum compensation as an armed services widow or widower under the Military Rehabilitation Compensation Act 2004 in the past.
As this Schedule is proposing to reflect current policy and practice, it will not affect anyone accessing austudy.
Conclusion
This Schedule is compatible with human rights. The extent to which is affects a person's right to social security is limited as the proposed amendments reflect current policy and practice.
Schedule 6 - Clarifying indexation of pharmaceutical allowance
This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Schedule
Pharmaceutical allowance is added into the rate of some social security payments, or may in some circumstances be paid as a separate payment. To retain currency of the allowance, the amount is indexed or adjusted each year under Part 3.16 of the Social Security Act. The Schedule makes minor technical corrections to existing provisions in this Part to correct cross-references, make clearer the various abbreviations and add additional guidance material.
Human rights implications
The repeal of these provisions in the Social Security Act is of a technical nature only. The repeal of these provisions does not change the effect of social security law as currently enacted.
Conclusion
The Schedule does not engage any applicable human rights.
Schedule 7 - Health care card income test
This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Schedule
Low income health care card
This Schedule will clarify the definition of allowable income for the purpose of the income test for the low income health care card for which a claim is required. Under that income test, a claimant's ascertained income must be less than 100% of the allowable income for an eight week period and an existing cardholder's ascertained income must be less than 125% of the allowable income for an eight week period. Holders of the low income health care card may receive:
- •
- medicines listed on the Pharmaceutical Benefits Scheme (PBS) at the concessional rate;
- •
- bulk-billed General Practitioner (GP) appointments, at the discretion of the GP (the Australian Government provides financial incentives for GPs to bulk-bill concession cardholders); and
- •
- a reduction in the cost of out-of-hospital medical expenses, above a concessional threshold, through the Extended Medicare Safety Net.
Human rights implications
Right to social security
This Schedule engages the right to social security, as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to social security recognises the right of everyone to social security, including social insurance.
This Schedule also engages Article 11 of the ICESCR, which provides for the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Holders of a senior's health card are entitled to a range of concessions, including concessions on pharmaceutical and health services.
The Social Security Act does not currently specify exactly what components of newstart allowance are to be included in the calculation of allowable income but current and past practice is, and has been, to include only the maximum basic rate and energy supplement.
The amendment contained in this Schedule seeks to clarify the components of newstart allowance to be included in the calculation of allowable income in a way which gives more legislative support to the current and past practice of calculating allowable income. That is, the amendment seeks to make it clear that the pension supplement, pharmaceutical allowance and rent assistance are all to be excluded from that calculation.
Nobody currently holding the health care card will lose it because of the amendment. This is because the amendment contained in the Schedule does nothing more than provide clearer legislative support for the current practice of calculating allowable income. Furthermore, nobody acquiring the card in the future will be prevented from doing so because of the same amendment. This is because in the future the law will be applied as it is currently.
Conclusion
The Schedule is compatible with human rights because it seeks to clarify, in the Social Security Act, the definition of allowable income for the purpose of the income test for the low income health care card.
Schedule 8 - Delegation
This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Schedule
This Schedule repeals a delegation provision in the family assistance law, which does not allow the Secretary of the Department to delegate any of their powers to officers of the Human Services Department under the Family Assistance Administration Act, unless the Secretary of the Human Services Department has agreed to the delegation of these powers. It repeals an administrative burden from the legislation.
Human rights implications
This Schedule does not engage any of the applicable rights or freedoms.
Conclusion
This Schedule is compatible with human rights as it does not raise any human rights issues.
Schedule 9 - Technical amendments
This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Schedule
Items 1-4 of this Schedule amend paragraph 8(8)(z) of the Social Security Act to change incorrect references in the note to that paragraph. These changes do not change the income test assessment of income support recipients as they are technical amendments.
Subsection 8(8) excludes certain amounts as income under the social security income test. The exemption contained in paragraph 8(8)(z) is reversed in various rate calculators which are referenced in a note to that paragraph. Several of the references to rate calculators in the note to paragraph 8(8)(z) are incorrect.
Item 5 of this Schedule repeals a spent clause 49 of Schedule 1A of the Social Security Act. This is a technical amendment.
Human rights implications
This Schedule does not engage any of the applicable rights or freedoms.
Conclusion
This Schedule is compatible with human rights as it does not raise any human rights issues.