House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Dan Tehan MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Social Services Legislation Amendment (Student Reform) Bill 2018

Schedule 1 - Main Amendments

Schedule 2 - Other Amendments

These Schedules are 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 Schedules

Schedule One

This Schedule would, from 1 January 2019, increase the parental income cut-off for students accessing the regional workforce independence criteria from $150,000 to $160,000. This Schedule would also increase the new $160,000 cut-off by $10,000 for each additional child in a student's family. This measure supports young people in regional Australia to complete tertiary education and recognises the extra costs of raising larger families.

In addition, regional students will also be provided with additional certainty about whether they will meet the new parental income cut-off. A student's parental income will be assessed in the financial year that ends before the day on which the student begins their self-support period. This allows the student to begin a period of self-support knowing that their parental income for that year is below the cut-off.

If the student's parental income is above the cut-off for that financial year, a student may still qualify as independent under the regional workforce independence criteria if their parental income is below the cut-off in a later financial year closer to the date on which they claim YA or seek to transition from dependent YA to independent YA.

This Schedule also allows for the implementation of one component of the 2018-19 Budget Measure - 50 Years of ABSTUDY by making technical amendments to the Social Security Act 1991 and the Social Security (Administration) Act 1999 to address legislative anomalies relating to the maintenance income test reconciliation process and the calculation of the maintenance income test reducible amount.

Schedule Two

This Schedule makes a technical amendment to the Student Assistance Act 1973 to strengthen the rules relating to courses approved for student payment purposes. This amendment will not alter current arrangements.

This Schedule amends the Student Assistance Act 1973 to broaden the legislative instrument making power in section 5D of that Act. To ensure that students are not disadvantaged when courses lose their approval for student payments, the amendments will provide the Minister with the power to determine that such courses remain approved for students in specified circumstances.

These Schedules are compatible with human rights. To the extent that a human rights obligation is engaged or limited, the impact is reasonable and proportionate in achieving the objectives of the measure and the welfare payments system more broadly.

Human rights implications

These Schedules engage the following human rights:

Right to social security

Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right of everyone to social security.

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 system must provide a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.

Article 4 of ICESCR provides that countries may limit the rights 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.

These Schedules either increase access to social security while students are studying or are technical in nature and do not alter current arrangements.

Access to social security is enhanced by increasing the parental income cut-off for students accessing regional workforce independence criteria and by introducing an increase to the cut-off of $10,000 for each additional child in the family to take into account the extra costs of raising larger families.

The additional legislative amendments are mechanical in nature and intended to reinforce legislative authority and broaden the specified legislative instrument making power. These amendments do not limit or restrict access to social security and are therefore compatible with the relevant rights and covenants.

Right to education

Article 13 of the ICESCR recognises the right of everyone to education. It provides that education shall be directed to the full development of the human personality and the sense of its dignity and shall strengthen the respect for human rights and fundamental freedoms, and that higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means.

These Schedules support access to education for the impacted cohorts by increasing access to income support while they are studying. It does this by increasing the parental income cut-off for students accessing regional workforce independence criteria from $150,000 to $160,000 and will also increase the new $160,000 cut-off by $10,000 for each additional child in the family to take into account the extra costs of raising larger families.

As previously stated, the additional legislative amendments contained in these Schedules are mechanical in nature, do not limit access to social security and are therefore compatible with the relevant rights and covenants.

Conclusion

The amendments in these Schedules are compatible with human rights because they promote access to social security and support the right to education. To the extent a human rights obligation is engaged or limited, the impact is for a legitimate objective and is reasonable, necessary and proportionate as outlined above.

By increasing the parental income cut-off for students accessing regional workforce independence criteria more students would be able to access social security to support their tertiary education. Further amendments are mechanical in nature and will not affect current arrangements.