Eric Abetz (Tasmania, Liberal Party, Minister for Employment) Share this | Link to this | Hansard source

I am in continuation from yesterday evening. I finished yesterday evening by making the point that the contributions made by other senators were, in fact, extraneous to the particular regulation that we were considering. Indeed, I think I used the analogy of the Empire State Building for Senator Cameron's contribution, indicating that for every story or scenario there was a major flaw. That, regrettably, was the case yesterday and, of course, it remains the case today. For every story and for every cameo, his argument was majorly flawed—be it death; be it the caring responsibilities; be it injury as a result of a crime. All those issues are more than appropriately canvassed in this regulation, and it will be the professionals of the Department of Human Services that will be making the determinations, not the job service providers, as incorrectly asserted by the honourable senator.

I finished off last night by saying that I would then make the rest of my contribution on the positive side as to what the regulation actually does—not what had been asserted previously. I indicate to the Senate that what the instrument does do is give decision makers in Centrelink—and I stress Centrelink—and on appeals tribunals much clearer guidance on what the government thinks is reasonable for them to take into account when deciding whether or not a job seeker had a reasonable excuse for failing to meet their mutual-obligation requirements. For example, the sudden serious illness or hospitalisation of the job seeker's child or partner, the recent death of an immediate family member or the job seeker being recently subjected to criminal or domestic violence would all clearly be exceptional circumstances beyond the job seeker's control. To assert otherwise is to assert that the people in the Department of Human Services would take an absolutely unprofessional and unreasonable approach to these potentially real-life situations.

The instrument also makes it clear that paid work, attending a job interview, medical incapacity or unforeseeable and unavoidable caring responsibilities are all grounds for finding that a job seeker had a reasonable excuse. These are not necessarily exceptional circumstances, but so long as the job seeker gives prior notice, where it is possible for them to do so, they provide a reasonable excuse for the job seeker for not meeting their requirements. It is similar to the circumstance of being in actual employment: if you are sick one morning and you cannot go to work, the reasonable thing to do is to communicate with the relevant person at the workplace and indicate that to them, if at all possible, in advance. Similarly, we say to welfare recipients that in the event you cannot attend an appointment you are required to attend, because of sickness—like someone in the workforce—you simply make contact in advance and say: 'Regrettably, I am ill today' or 'On the way the car broke down and so I can't make it'. You make immediate contact, rather than giving that advice well after the event. The requirement to give prior notice, when possible, is also reasonable, I would suggest.

It is important to note—and this is the one point that rounds all this off—that the legislative instrument is not exhaustive. It is clear in the primary legislation that this regulation is only a guide and cannot limit the matters that the decision maker is able to take into account in determining whether or not a job seeker had a reasonable excuse. In those circumstances, having cleared that up—and I will be kind this afternoon and say that they were inadvertent misrepresentations of the regulation yesterday—and having now explained what the regulation actually will do, as opposed to all the false assertions made about it, I commend the regulation to the Senate and encourage honourable senators to vote against the disallowance.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I have listened carefully to what Senator Abetz has said and he has not convinced me and he will certainly not convince the charities in this country who will face the full burden of this regulation and various other bills. What Senator Abetz has tried to do is to focus in isolation on the regulation. By doing that, he ignores other aspects of the social security legislation that come together to make it really tough on Australians who are unemployed and amongst some of the most disadvantaged people in this country.

In fact, what this is about doing is punishing job seekers. It is setting up this dole bludger argument, which is based on the government's ideology, and the government's argument that if you cannot get a job, you really should not participate in society. It is the antithesis of everything the experts in this area tell you. Simply focusing on penalties and simply focusing on penal provisions against some of our poorest Australian citizens is just outrageous.

The Social Security (Reasonable Excuse—Participation Payment Obligations) (Employment) Determination is the legislative instrument the minister must make to determine a non-exhaustive list of matters that decision makers must consider in applying the persistent noncompliance test under the Social Security (Administration) Act 1999. The Social Security Legislation Amendment (Stronger Penalties for Serious Failures) Bill and the determination are inextricably linked. For Senator Abetz to try to argue it differently is disingenuous and misleading. But that is what we expect from this government. It is a government of broken promises, a government brought to power, based on lies, and a government that seems determined to punish the poorest people in this country.

See, the government wants the determination viewed in isolation. That is because, on the face of it, it seems innocuous—but it is not. When viewed in the big picture of employment service reforms that the government is trying to make, its dangers become clear. The government's package of reforms in this area is designed to disenfranchise and punish the unemployed of Australia. It includes the following measures—and you have to take this determination into account with all of these issues. Firstly, the determination that sets out what a decision maker must take into account in determining whether someone has a reasonable excuse for noncompliance under the Social Security Act; next is the Social Security Legislation Amendment (Stronger Penalties for Serious Failures) Bill, which seeks to amend the Social Security (Administration) Act 1999, in relation to the imposition of eight-week penalties on job seekers who are receiving a participation requirement for the serious failures; next is the Exposure Draft of the Employment Services 2015-2020 purchasing arrangements, which is the Job Services Australia tender document, which sets out the government's intentions in relation to the Job Services Australia program from 1 July 2015; next is the Social Security Legislation Amendment (Strengthening the Job Seeker Compliance Framework) Bill, which seeks to strengthen the compliance arrangements for job seekers in receipt of activity-tested income support arrangements; and, the changes to Newstart for job seekers aged under 30 that will see them off income support for a continuing six-month cycle until they either get a job or turn 30.

All of these bills have to be read together to understand what this regulation and determination that the government has brought in really means. You have to look at what all of these acts do. The Social Security Legislation Amendment (Stronger Penalties for Serious Failures) Bill was introduced by the coalition on Wednesday, 4 June 2014. The bill seeks to amend the Social Security (Administration) Act 1999. Under current job seeker compliance provisions contained in the act, job seekers in receipt of participation payment—defined as Newstart and defined for some people as youth allowance, parenting payments and special benefits—may incur an eight-week non-payment period penalty for serious failures consisting either of refusal of suitable work or persistent noncompliance with their participation obligations.

Currently, the act provides that such non-payment penalties may be waived if the job seeker begins to comply with a serious failure requirement—currently Work for the Dole, job search training or undertaking more intensive searches. These are the issues that have to be dealt with. The non-payment may also currently be waived if the job seeker does not have the capacity to comply with any such serious failure requirement and would be in serious financial hardship if the non-payment were not ended. What we have here is a government that want the unemployed, who are on $36 a day at the moment, to suffer a further penalty. As if having to live on $36 a day is not problem enough for some of our most disadvantaged Australians; the government wants to penalise them even more. It is because they have this dole bludger mentality, this ideology that if you do not have a job you are some kind of inferior Australian. They do not understand these issues. They do not understand the difficulty some Australians have in getting a job. They just don't get it. They want to penalise people on $36 a day, take all support away from them and leave them destitute and reliant on charity.

There are a number of concerning aspects of the legislation, which has to be read in conjunction with the determination. Job seekers will be unable to re-engage during the eight-week non-payment period. Once you have been penalised, that is it—you have lost your payment. You cannot come and say, 'Look, I really want to get on top of this problem I have,' or, 'I've got on top of my problem and I want to re-engage.' You are gone for eight weeks, with absolutely no payments. No evaluations have been done on whether these changes are likely to be successful. The majority of people affected by the changes will have a vulnerability indicator already noted on their Centrelink records, meaning that they are disadvantaged in some way, including whether they have a mental illness or psychiatric problems, are homeless, have recently been discharged from prison, have had a recent traumatic relationship breakdown or have suffered from cognitive or neurological impairment. Indigenous job seekers are also over-represented amongst those who will be penalised. These are the people who need more help in our community, not penal provisions—not forced onto charity, not abandoned by the government. They should be supported and assisted.

The Social Security (Reasonable Excuse—Participation Payment Obligations) (Employment) Determination 2014 (No. 1) sets out a non-exhaustive list of matters which decision makers must consider in determining whether or not a reasonable excuse exists in relation to a job seeker's serious failure under the Social Security (Administration) Act 1999, being either refusal of suitable work or persistent noncompliance, before imposing a nine-week non-payment period. The proposed determination changes what constitutes a reasonable excuse for the purpose of the legislation. What is concerning is the discretion acknowledged to exist in determining whether circumstances directly prevent a job seeker from complying with requirements. The concept of 'directly prevent' is a new requirement introduced by the government and obviously narrows the discretion of the decision maker in deciding whether or not an excuse is reasonable. Also concerning is the removal of factors which currently must be taken into account when deciding whether a person has a reasonable excuse. These are: that the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge; the literacy and language skills of the person; an illness, impairment or condition of the person that requires treatment, including an illness that is episodic or unpredictable in nature; a cognitive or neurological impairment of the person; a psychiatric or psychological impairment or mental illness of the person; a drug or alcohol dependency of the person; unforeseen family or caring responsibilities of the person; that the person was subjected to criminal violence (including domestic violence and sexual assault); that the person was adversely affected by the death of an immediate family member or close relative; and, the person's recent imprisonment or release from imprisonment.

The government has argued that some of the above factors will still be considered in determining 'reasonable excuse'. However, on the government's proposal, job seekers would have to prove that the circumstances directly prevented them from meeting the requirement and that they gave prior notice, under the requirements of section 42UA of the act. The secretary will no longer be required to take the above factors into consideration when deciding whether a job seeker has a reasonable excuse. The department is going to be handing responsibility for the decision making as to whether or not a serious failure has occurred and whether or not there was a reasonable excuse for it from Centrelink to Job Services Australia and to their provider staff. The major concern with this is that the JSA staff may not be aware that they have a wide discretion in making a decision as the delegate of the secretary and might instead be led to believe that they can only consider the factors listed under 'reasonable excuse' in the government's new determination.

The minister's own Exposure draft for employment services 2015-2020 purchasing arrangements states on page 41:

The Employment Provider will also determine whether the Job Seeker had a reasonable excuse for non-attendance at their initial appointment in accordance with legislation and guidelines.

This clearly demonstrates that what the minister was arguing is false, that what the minister was arguing is not correct. The providers themselves who have looked at this package of legislation—not just the determination—have expressed concern in relation to these changes, including that it will change the dynamic of the relationship between job seeker and provider, with the provider becoming—to use one of the PM's famous terms—the baddie. They do not want that, but that is what this package of legislation does and that is why we must disallow this determination.

Jobs Australia has further concerns. One of their key considerations is the fact that the department will be handing responsibility for decision making from Centrelink staff to Job Services Australia provider staff. What level of guidance and support will be provided no-one yet knows, but one concern arising from that is that the JSA staff may not be made aware that they have wide discretion in making a decision as delegates of the secretary. They might instead be led to believe that they can only consider the factors listed in the determination.

Who knows what the Social Security Legislation Amendment (Strengthening the Job Seeker Compliance Framework) Bill will seek to do. It is part of an attack package on the most vulnerable Australians. Obviously, the government thinks that the harsh measures so far have not gone far enough.

The proposed Newstart changes demonise young job seekers. They punish job seekers for not being able to find work rather than focusing on job creation so that there are actually jobs out there for people. The changes force them to live on fresh air for a continuing six-month cycle. The government wants them to find it so hard that they do not bother with income support. This is a cost-cutting approach using the most vulnerable people in this country. Not only will job seekers have to fall back on parents and families, if they have parents and families; they will have to fall back on charity.

This determination is one aspect of big picture of this government's action today in this area. I emphasise that you cannot deal with the determination in isolation from the other aspects of the government's social security attack measures. It is all about punishing and further disadvantaging vulnerable people who are already doing it tough. Yesterday when I was outlining the issues associated with this determination, I went to the statement of compatibility with human rights. One of the key bills that this determination will integrate with is the Social Security Legislation Amendment (Stronger Penalties for Serious Failures) Bill 2014. What did the Parliamentary Joint Committee on Human Rights say about it? It said this:

Based on the information and analysis provided the committee does not consider that the statement of compatibility adequately demonstrates that the proposed amendments are needed for the purpose of meeting a pressing and substantial concern, that there is a rational connection between the measure and the identified objective and that the measure is a reasonable and proportionate one for the achievement of that objective.

That was scrutiny of the parliament. The joint human rights committee have said that the bill is not reasonable and it is not proportionate.

When you are looking at this determination, you have to take into account the other aspects of the draconian legislation against the poor and needy in this country. I do not understand for a minute how this could happen or how people could treat their fellow Australians in this manner. When you take all of those bills and this determination together, we are penalising people who are surviving on $36 a day. You must look at the whole package that is in place so that you understand the implications of the determination. This is a horrible set of measures against the poor, the underprivileged and the weakest people in our community. It simply shows that this government is completely out of touch. It is completely out of touch with the needs of the unemployed in the country, it is completely out of touch with the availability of work for the unemployed in this country, it is completely out of touch with the challenges that the unemployed face and it simply ignores the already tough set of measures that are there to ensure compliance.

No-one wants people to rort the system, but this is not designed to stop people rorting the system; this is an ideological attack on the poorest people in the country. It is an ideological attack because the coalition do not have a clue what it is like to be unemployed or have one of your family unemployed. They do not know what it is like to battle to put food on the table on $36 a day. They think you need to impose more penalties on the poorest people in this country. We should not support this determination. By supporting this determination, you are basically saying the package of bills is okay. The package of bills is not okay. We need a decent society and we need a package of bills that looks after the poorest and does not penalise them.

Stephen Parry (President) Share this | Link to this | Hansard source

The question is that the disallowance motion moved by Senator Cameron be agreed to.