Senate debates

Monday, 12 November 2018

Regulations and Determinations


6:11 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

Pursuant to the amended motion that went through the chamber this afternoon, I move the following motions together:

That the Social Security (Administration) (Reasonable Excuse—Participation Payments) Determination 2018, made under the Social Security (Administration) Act 1999, be disallowed [F2018L00779].

That the Social Security (Administration) (Job Search Efforts) Determination 2018, made under the Social Security (Administration) Act 1999, be disallowed [F2018L00776].

That the Social Security (Administration) Legislation Amendment and Repeal (Reasonable Excuse—Participation Payments) Determination 2018, made under the Social Security (Administration) Act 1999, be disallowed [F2018L00783].

I intend that the chamber will debate them together, but then I will put them separately to enable the chamber to vote differently on the different instruments.

These instruments have been made since the passage through the parliament of the Social Services Legislation Amendment (Welfare Reform) Act 2018. The Australian Greens did not support the passage of this legislation. In fact, we strongly opposed it, having raised numerous concerns about and opposed a number of the schedules. Schedules 14 and 15 are the relevant schedules for the purposes of today's debate—they are the ones these instruments refer to. Schedule 14 made changes to the reasonable excuses for people looking for work, and schedule 15 introduced the targeted compliance framework, commonly called the TCF. The targeted compliance framework commenced on 1 July 2018. Hence, it has been in operation for four months.

The job search instrument sets out how the Secretary of the Department of Jobs and Small Business is to determine whether or not a person who is receiving a participation payment has undertaken adequate job search efforts in relation to a period for the purposes of determining whether a mutual obligation failure has been committed under the targeted compliance framework, or the TCF. Specifically, under paragraph 42AC(1)(e) of the Social Security (Administration) Act 1999. The instrument specifies factors relating to both the quality of job search efforts and the quantity of job search efforts that the secretary must consider when determining whether or not the person has undertaken adequate job search efforts in relation to a period.

In relation to the quality of job search efforts, the factors that the secretary must take into account are whether the person has undertaken job search efforts in relation to jobs at a range of levels of seniority and remuneration that are suitable work for the person—these are really important points—then, in relation to jobs in a variety of fields and occupations, including fields and occupations other than those in which the person has qualifications or experience, whether that work is suitable work for the person and a variety of methods to make contact with potential employers have been used.

In relation to the quantity of the job search efforts, the factors that the secretary must take into account are the number of job search efforts undertaken in that period and whether or not those job search efforts meet the number specified in the person's employment pathway plan. The determination also provides guidance regarding what will count as a job search effort to assist the secretary in his or her calculation of the number of job search efforts undertaken in relation to a period. For example, if the person contacts an employer more than once in relation to a particular role during the period in question, this will only be counted as one job search effort, even if a number of efforts are made over that period.

The instrument tightens the requirements for job search for those receiving a participation payment. Even though employment service providers are required to consider the quality of a person's job searches prior to this instrument coming into effect, the relevant guideline only required providers to think about how useful each job search was to improving the jobseeker's chances of getting a job and listed a number of matters that they could consider when contemplating this—specifically, the jobseeker's skills and the types of jobs they'd applied for, if the types of jobs applied for were reasonable given the jobs available in the local area, the different ways the jobseeker applied for jobs, and if job referrals were followed up and how this was done.

The guideline outlined that providers were also required to consider factors that affected their circumstances during the period, listing five factors, one of which was whether the jobseeker had a vulnerability indicator. The explanatory statement for the job search instrument does not mention these same factors. It merely says that providers, as delegates of the secretary, may also exercise discretion when assessing compliance with these requirements and may take into account factors such as a person's individual circumstances and local labour market conditions when working out if a person has undertaken adequate job search. In our view, this is a weakening of the protections, as it is no longer necessary for the person's circumstances to be taken into account and there is no longer a list of factors providing the minimum to be considered. We are deeply concerned, therefore, about how this will be interpreted. What we know from those receiving participation payments is that employment service providers often do not ensure that the number of job searches specified in the person's employment pathway is suitable for the person and the area in which they live. So how can we be sure that the same employment service providers will exercise discretion and take into account other factors as a person's individual circumstances when that's not specifically specified?

There is also concern that people could be found in breach, depending on the discretion applied by the employment service provider, regarding what is considered suitable work for each individual. It could be that someone is found not to have undertaken adequate job searches because they have only applied for jobs below their qualifications or, conversely, only applied for jobs in their qualification fields. This is all about the employment service provider's interpretation at any given time. Forcing people to apply for a variety of jobs at different skill levels in a variety of ways will not create jobs where they don't exist. It merely forces those people to comply with rigid requirements that may not meet their needs. They should be able to adopt job search methods that work for them.

The reasonable excuse instrument sets out what factors the Secretary of the Department of Jobs and Small Business must and must not consider when deciding whether a person who is receiving a participation payment has a reasonable excuse for committing a compliance failure under both the targeted compliance framework and the previous compliance framework, which continues to apply to participants in the Community Development Program, commonly known as CDP, who have been defined as 'declared program participants'. The list of factors that must be taken into account replicates, with some minor amendments, most of the factors from the previous reasonable excuse instruments. With regard to what must be taken into account by the secretary for both compliance frameworks, the secretary must not take into account a factor where they are not satisfied this factor directly prevented the person from meeting the requirement. For those subject to the TFC, the instrument provides that the secretary must not take into account a person's drug or alcohol misuse or dependency in determining whether they had a reasonable excuse for a compliance failure where they have previously had their misuse or dependency as a reasonable excuse and they have refused to participate in available and appropriate treatment for their drug or alcohol misuse or dependency to which they have been referred and which they are able to participate in. This is not applicable to those subject to the previous compliance frameworks—specifically the declared program participants.

Our main concern with this instrument is that it implements the 2017-18 budget measure to restrict the use of drug or alcohol misuse or dependency as a reasonable excuse for a compliance failure to one occasion for those outside of CDP. We do not support this measure. If the person concerned has an addiction, that is a health issue and should be dealt with by a health professional. The government should not be penalising people for their drug or alcohol misuse or dependency or singling it out without addressing the underlying issues for this misuse or dependency, such as physical and mental health issues, childhood trauma or poverty. This measure fails to understand the complicated process of recovery and will only cause harm to vulnerable members of our community. There are many barriers to employment the government could be focusing their attention and efforts on instead, such as lack of transportation and perceived discrimination, to name but two.

The 'reasonable excuse' amendment and repeal instrument amends one of the previous 'reasonable excuse' instruments, referred to as the DEEWR determination, to remove references in that instrument to the factors prescribed for the purposes of the previous compliance framework. This has the effect of limiting that instrument so that it no longer applies to recipients of participation payments. This instrument also repeals the other previous 'reasonable excuse' instrument, referred to as the FaHCSIA determination, as it is redundant. The overall effect is that the 'reasonable excuse' instrument is now the sole instrument setting out all of the factors the secretary must and must not take into account when deciding whether a person in receipt of a participation payment has a reasonable excuse for committing a compliance failure.

By disallowing this instrument and the 'reasonable excuse' instrument, the DEEWR determination would revert back to how it was and the FaHCSIA determination would be revived. These instruments set out the factors the secretary must take into account when deciding whether a person who is receiving a parent payment has a reasonable excuse for committing a compliance failure under the previous compliance framework—that is, they would apply to declared program participants and the measure to tighten 'reasonable excuse' in relation to drugs and alcohol for those outside of the CDP would be gone. These particular instruments are applying a punitive, top-town approach to the way we support and work with those who are looking for work. When we are looking at the issues here and the decisions that are being made—and I referred earlier to the discretion of the employment service providers—we are seeing a lot of failures in the operation of jobactive, because they're operating within the jobactive system. We are seeing a lot of failures of that particular system.

I go back to the instrument where we're talking about the job search efforts and remind the chamber that this will be implemented by the consultants of employment service providers, who, in fact, are not required to have qualifications. They are often referred to as employment consultants or employment case workers, depending which service provider they're employed by. It's quite obvious from the evidence we've already received in the jobactive inquiry being carried out by the Senate Education and Employment References Committee that there are no formal qualifications required or specified for employment consultants. So there are a variety of consultants holding a variety of qualifications, but there are no formal qualifications required. The employment consultants have case loads that are far too large, and they're struggling to address and implement the new targeted compliance framework. We heard the week before last at the inquiry about the fact that employment service providers, the peak organisations, were not consulted before the government announced in the budget the new compliance framework they intended to introduce. The first they learnt of that was when there was an announcement made in the budget. We, and they, are operating within a system that does not adequately support jobseekers, and we hear that over and over again in submissions to the inquiry, in the phone calls and emails that I get very regularly to my office, and from constituents, who are walking into our office now more than ever to outline their concerns about the system.

The issue here in terms of adequate job searches is that people could be pinged for only looking for jobs that are in their area of qualifications. They could be pinged for not looking at jobs that are in areas for which they are not qualified but which are considered more entry-level jobs or they could be pinged for focusing on that particular area and for looking for jobs that they are overqualified for. In other words, the goalposts could be anywhere for people in terms of their jobactive searches. I hear consistently from people, particularly those that are in stream A, that they have, in fact, found the jobs themselves, that they did not receive adequate support from their employment service provider and that they are not getting access to the Employment Fund. People consistently talk about not getting access to the Employment Fund. They talk about basically being forced to sign their employment pathway plan or their employment plan—which they in fact don't support and are very concerned about.

We are working within a system which witnesses to the jobactive inquiry a couple of weeks ago described as a punitive based approach, an aggressive system that relates to compliance, which is what this new job search instrument is about. It's about more and more compliance in a system that is supposed to be helping people find work. A large number of people who have emailed and phoned my office and constituents who have come to my office talk about a system that punishes and is focused on compliance rather than helping. With the introduction of the TCF, more and more people are concerned that employment consultants or caseworkers are now seen as the enforcers of the system rather than being there to support and help people find work. They are the ones that now determine the demerit points that people will receive—at least up to the demerit point 5 through that green and amber zone. That is going to start hurting the relationship between a jobseeker and the employment consultant even more.

We're also hearing about mismatching between Work for the Dole placements and people's qualifications. Again, compare that to the requirement to look for areas within your field of qualifications and areas outside your field of qualifications. We hear repeatedly of people being placed in Work for the Dole placements that are completely unsuitable to provide training and to provide a work-like experience for people. For example, a witness to the inquiry said that he had quite significant qualifications in communications and he was put to work in a laundry folding sheets and sorting out the coloured clothes from the white clothes. I fail to see how that has given that person a work-like experience or any training in his area of expertise. One wonders how people could think that that is a system that is being supportive of people and does not 'demonise' them, 'shame' them and make them 'feel worthless'. All those words are words that I have heard people express to me about this system. These instruments are implementing areas of a system that are not working, that don't provide the sorts of supports that people looking for work need. I've not heard one person say to me in all my time—

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

Senator Siewert, you will be in continuation, as the sitting of the Senate is now suspended.

Proceedings suspended from 18:30 t o 19:30

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

To conclude my contribution on these disallowances: these instruments need to be viewed in the context of the impact their implementation will have on the whole system, which has a very compliance focused, punitive approach. Where jobseekers are extremely stressed, their relationship with and trust of their employment service provider or consultant is being eroded even further, because of the impact of the targeted compliance framework. Job service providers and employment consultants are now being seen as the ones who have to enforce the compliance system, to the point where I've heard job service providers and peak organisations in the jobactive inquiry, for which we had the first hearing two weeks ago, express concern that they are now the enforcers of the system and that that is eroding the trust with their clients. We need to look at the changes that the delegated instruments will implement within the system. We are extremely concerned about the impact these changes will have on jobseekers and the discretion that they provide employment consultants in the way they make judgements around job searches. That's one of the delegated instruments. The other deals with reasonable excuses. We're extremely concerned that this will have a detrimental impact on jobseekers. Those with addictions are going to find it extremely difficult.

7:32 pm

Photo of Doug CameronDoug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | | Hansard source

Labor supports these disallowances. Senator Siewert has outlined in great detail the issues around this disallowance motion. We support both the disallowances: on reasonable excuse and on job search. On reasonable excuse, the determination implements the 2017-18 budget measure to tighten the reasonable excuse of drug and alcohol misuse or dependency for people looking for work outside of the Community Development Program. The government's determination is likely to adversely affect people who are dealing with drug or alcohol dependency. The determination limits the use of drug or alcohol dependency as a reasonable excuse for missing an appointment or other mutual obligation requirement to one occasion only. If the person participating in the program chooses to undergo treatment, that could satisfy all or part of their obligation requirements. However, if a person seeks treatment and then relapses before the treatment is completed, it seems they could be breached for failing to meet their mutual obligations.

According to ACOSS, in the UK stronger sanctions on income support recipients who had a drug dependency resulted in greater disengagement and harmed efforts to address drug dependency. It was also found that the increased use of sanctions was likely to fail in improving employment rates of people with drug dependency in the absence of intensive support and demand-side interventions.

Labor opposed the measures when they were introduced as part of the welfare reform bill in 2017. Labor is open to considering genuine attempts to help people into treatment. We don't believe that income support should be used to support drug habits. But this determination will adversely affect people with serious illness, pushing them into serious financial hardship and crime. It will not identify or genuinely help those in need of treatment. We are open to working with the government on genuine attempts to help people battling addiction, but not blatant attacks on the most vulnerable in our community with no basis in evidence.

I want to just deal with that issue of people with drug or alcohol dependency. Unless you have seen a family member or you have drug or alcohol dependency yourself, it's really difficult to make these judgements. It's really difficult for someone who has never experienced this—and many in the government wouldn't have experienced it—to make these judgements. I know that the argument and the position the government continually takes is that the best form of welfare is a job. I think the public are over this nonsense and these slogans being used to attack some of the most disadvantaged people in our community—some of the people who need help more than most in our community. If there were a job for everybody on social security payments, it would be fantastic. But there is not. There are not jobs for everyone who seeks a job. It is made even more difficult if you have a health issue or if you have alcohol or drug addiction.

As someone who is an alcoholic—someone who hasn't taken any alcohol for about 40 years—I know how difficult it is. I don't understand how simply having these positions adopted that say that someone with an alcohol problem should be forced into a position of having no income can work in any practical sense. I certainly don't understand how forcing someone into abject poverty helps their drug or alcohol addiction. I was lucky. I had a family that supported me. I had a wife who did everything she possibly could to help me. I maintained my job during the period of alcohol addiction. If you don't have that, this proposition only makes matters worse for people. It is just crazy to actually propose this when you're dealing with someone with an addiction problem.

As I said, I've got some experience of being addicted to alcohol. I was really lucky. Many people are not so lucky as to be in the position I was in and get the support I needed at the time to stop drinking alcohol. But I'll always be an alcoholic; I can't drink alcohol. I just don't get it that anyone who has any basic understanding of this problem of both alcohol and drug addiction could put them in poverty, making them more vulnerable and more determined to actually keep drinking because they have no other options. It is just not a reasonable approach. On that basis, not only do I support this disallowance from a personal perspective; certainly, the opposition support this on the basis of listening to people, understanding the issues and actually wanting to do something about it.

The other aspect of this disallowance motion is the issue of job search. Labor opposed many aspects of the Social Services Legislation Amendment (Welfare Reform) Act that came into force this year, including the targeted compliance framework to which this measure relates. Labor moved an amendment to retain waivers and discretion for employment service providers when assessing the merits of financial penalties but opposed the targeted compliance framework measure when the amendment wasn't successful.

Community sector stakeholders said the changes introduced as part of the targeted compliance framework were 'punitive' and could 'increase the risks of people becoming homeless and have negative outcomes for their physical and mental health, self-esteem, relationships and engagement with the labour market'. The targeted compliance framework requires that individuals looking for work must meet a number of mutual obligation requirements or they may have their welfare payments suspended, reduced or cancelled. One circumstance that might see someone commit a mutual obligation failure is where the employment service provider is not satisfied that the individual looking for work has undertaken adequate job search efforts in accordance with their employment pathway plan. This determination is unnecessarily prescriptive for both the individual looking for work and also the employment service provider. It imposes additional compliance burdens without any clear benefit to people seeking work. Employment service providers should work with unemployed people to help them apply for the right job for their situation. A one-size-fits-all approach is unnecessary and is not the proper way to help people find secure, decent work.

One of my areas of shadow portfolio responsibility is homelessness. I talk to homeless people on a regular basis and I talk to the agencies who are trying to help people in homeless situations. They say that stability is how you fix these issues. Putting a roof over someone's head, dealing with health problems, dealing with alcohol addiction problems, dealing with drug problems and having wraparound support for people are how you deal with these issues. It just beggars belief that this government is still in the last century in its thinking in relation to these issues. Penal provisions against people with addiction, penal provisions against people that need help and support and penal provisions against those that will only get worse if you penalise them are not modern approaches to dealing with these issues.

This government is so out of touch in so many areas. This, in my view, epitomises how out of touch this government is with the approaches that will help people that have got drug addiction, people that are homeless and people that are on social security. People on social security should not be used as a political battering ram by this government. The government should be supporting our fellow Australians who are doing it tough and our fellow Australians who need support with their drug addiction, their alcohol addiction and their health problems. Going down this path is last century's thinking. It's about time this government actually came into the modern day with its thinking on these issues and stopped looking at every person on social security as someone to give a kick in the head to. That's what this government is doing.

The sooner we have an election and the sooner we get a government that can actually understand the health issues, the addiction issues, the housing issues and the unemployment issues and how we deal with them in a sophisticated way, the better. This rabble of a government, whose own Prime Minister described them as 'muppets' are showing how they are muppets in relation to this. They are like M&Ms—one minute they are muppets the next minute they are mad. It is just awful how this government tries to deal with social security issues and vulnerable people in this country. It is about time it stopped. It's about time the government listened to the experts and the people that are helping people with drug addiction and alcohol addiction and have not only a compassionate approach but also an effective approach on this. Their approach is not effective; it will only make matters worse. Labor supports these disallowances.

7:45 pm

Photo of Anne RustonAnne Ruston (SA, Liberal Party, Assistant Minister for International Development and the Pacific) Share this | | Hansard source

These three instruments are vital to ensuring that there's consistency, clarity and certainty for jobseekers and providers alike.

In relation to the Social Security (Administration) (Reasonable Excuse—Participation Payments) Determination 2018, the government will not support the disallowance of this instrument. If a jobseeker does not meet one of their requirements while receiving unemployment payments, they may face a financial penalty unless they have a reasonable excuse for that failure. If the reasonable excuse instrument were disallowed, decision-makers could still decide that a person had a reasonable excuse for a particular failure—so that that person did not face financial penalties for reasons outside of their control—but would not be required to consider factors currently specified in the instrument, such as any illness or impairment of the person, their language ability, their housing instability et cetera. This could lead to an inconsistent application of the reasonable excuse provision, which could disadvantage some jobseekers relative to others. Likewise, the instrument specifies the circumstances in which drug or alcohol dependence must not be considered a reasonable excuse.

The government will not be supporting the disallowance of the Social Security (Administration) Legislation Amendment and Repeal (Reasonable Excuse—Participation Payments) Determination 2018. The instrument makes a number of technical changes, including the repeal of the instrument, which applied under the prior compliance framework and which will no longer have effect for jobseekers due to legislative changes. This instrument forms part of the government's commitment to maintaining the currency of our legislation and legislative instruments by removing redundant regulation.

Finally, the government will not support the motion to disallow the Social Security (Administration) (Job Search Efforts) Determination 2018 instrument. If the instrument were disallowed, there would still be a requirement to apply mutual obligation failures for failing to undertake adequate job search efforts; however, there would be no instrument to guide decision-makers in determining what constituted an inadequate job search, and there would be no requirement for decision-makers to consider the range of factors specified in the instrument. This would reduce clarity and protections for jobseekers, and potentially subject them to inconsistent assessment of whether they have undertaken adequate job searches. Further to this, the Social Services Legislation Amendment (Welfare Reform) Act 2018 requires the secretary to make an instrument to guide decision-makers in making this determination.

7:47 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

In winding up the debate on this disallowance motion, I continue to be gobsmacked that the government does not get the fact that treating people who have a drug or alcohol addiction in a punitive manner does not help the situation. The government does not get that this is a health issue and it needs to be addressed as a health issue. Under the approach that's being driven by the two instruments that relate to reasonable excuse, we will see people drop out of the system. They will drop out of the system, they will not have income support, and that will make their situation even more tenuous. If they aren't already homeless, it'll lead absolutely to homelessness and potentially to interaction with the justice system—because this government does not get that this is a health issue.

These measures will make our already punitive income support system even more punitive. In terms of job searches, I completely disagree with the government that this will lead to more consistency. In fact, it will make it harsher and, as I articulated in my first contribution, it could lead to even further inconsistency—and it's being applied to a system that already has so many massive problems with it.

I've already articulated the concerns I have about putting even more pressure on employment consultants and caseworkers working for jobactive providers. With their lack of qualifications and the heavy case loads they are bearing, the high turnover or churn of staff in these services points to problems in terms of what they have to deal with through this punitive compliance system. I'm expecting that churn will probably get higher, once we start seeing the further implementation of the targeted compliance framework. The job of these people is supposed to be to support jobseekers and those who are unemployed. Their role is to support these people and to help them find work. In fact, they now have to apply this punitive approach and be responsible for making decisions around penalising people. This makes their job even harder.

This system needs reform; it absolutely needs reform. We don't need a system, with these sorts of instruments, that makes it harder for jobseekers to find work and harder for them to comply. A number of times now I've heard of the situation where somebody has actually had to leave their part-time work to go to an appointment with their jobseeker provider to help them find work. So they've actually had to miss out on work. Another situation was where a young mother had to stop studying to comply with this system. She had to drop some of her course units in order to comply with the requirement for meetings with her provider. This system is failing. These delegated instruments make an already failing system worse.

I ask the Senate to support these disallowances so that we can at least not make the system worse. Then I urge the Senate to look at what comes out of the jobactive Senate inquiry, when that inquiry presents its report in the future, to look at how we can get real reform in a system that is not punitive, that is supportive, that helps people trying to find work, and that recognises that this country has structural unemployment and that there simply are not the jobs there for people to apply for. Instead of penalising those who are unlucky enough not to be able to find work, we should be supporting them to find work and offering meaningful training opportunities. I couldn't tell you how many times I've heard people talk about the inadequacy of the training that people get through the jobactive process. It's time we reform the system. There is absolutely no doubt that it needs change, but not—this is a disallowance motion—through the sorts of changes that these delegated instruments have brought in.

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

The question is that business of the Senate notice of motion No. 1 be agreed to.

8:01 pm

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

The question is that business of the Senate notice of motion No. 2 be agreed to.