6.15 Centrelink instructions and training also seek to provide advice and guidance on determining whether reasons offered by jobseekers are acceptable (amount to a reasonable excuse). The following general guidance on this issue appears in most Centrelink instructions and training material relating to all breach types.
When contacted, the jobseeker may give a reason/reasons for non-compliance. Centrelink staff then need to establish whether these reasons are acceptable in accounting for the jobseeker’s non-compliance.
An acceptable reason can exist where the main reason for non-compliance was OUTSIDE the jobseeker’s control. This is usually an unforeseeable or unavoidable circumstance followed by
Some action taken by the customer to address the situation (eg phone call to arrange alternative time etc)
6
Verification of situation where appropriate (eg medical certificate, police report, earnings etc)”
6.16 From our examination of breach complaints, and from the wording of this guidance in training material and instructions it would appear that the factors indicated in the above excerpt are being regarded as criteria to be applied in all breach cases when assessing reasons offered by job seekers. (ie. in each case the reason offered should be a matter outside the jobseekers control, unforeseeable, unavoidable, verified and followed by some steps on the part of the jobseeker to address the situation. )
6.17 While some or all of the factors indicated may be relevant considerations in assessing a jobseeker’s actions in a particular breach decision, there does not seem to be any basis for adopting them as a set of general criteria to apply in all such cases. For instance, if a person was working at the time of a scheduled interview, this should be accepted as a
“reasonable excuse” for not attending the interview, notwithstanding that it was a matter that may have been foreseeable and the person did not take any subsequent steps to address the situation.
6.18 As noted previously, the range of issues to be considered in deciding whether a breach has occurred vary according to the type of breach. The factors that have been used in the general guidance provided by Centrelink appear to have been derived from sub-section 601(6) of the Act. That provision provides that:
For the purposes of this section, a person takes reasonable steps to comply with a notice under subsection (1A), with a requirement of the Secretary under subsection (2), or with the terms of a Newstart Activity Agreement (as the case requires) unless the person has failed so to comply and:
(a) the main reason for failing to comply involved a matter that was within the person's control; or
(b) the circumstances that prevented the person from complying were reasonably foreseeable by the person.
6.19 The effect of that sub-section of the Act is limited to consideration of “reasonable steps” in relation to activity test matters included in section 601. It does not apply to many breach types, for example:
• all administrative breaches
• breaches for failure to enter into an activity agreement (including failure to attend an interview for that purpose)
• failure to attend a job interview
• failure to report or misreporting earnings
• voluntary unemployment or unemployment due to misconduct as a worker 6.20 This description of what constitutes reasonable steps also does not apply to Youth
Allowance breaches. In the case of Youth Allowance section 541F provides that the person is to be regarded as having taken reasonable steps to comply with a requirement unless:
the Secretary is satisfied that the person has not attempted in good faith and to the best of his or her ability to comply with the requirement.
6.21 There have been many AAT decisions that involved a review of a decision to impose a breach penalty for failure to comply with a Newstart activity agreement. In those decisions, the AAT did consider the issues of control and foreseeability as criteria that should be applied in assessing reasons for non-compliance in each case (because sub-section 601(6) or previous similar provisions apply for that particular breach type). The AAT also gave consideration to other steps taken by the jobseeker. (Because of the requirement to assess overall whether the person was “taking reasonable steps”.)
6.22 Although, as noted, some of these factors may still be relevant considerations in other types of breach decisions, there is no basis for adopting them as general criteria for the administration of breach provisions that do not include those requirements.
6.23 Centrelink instructions and training material also provide guidance on how to deal with specific reasons that may be offered by jobseekers as excuses for non-compliance. This provides reasonable suggestions for verifying excuses offered by jobseekers. However, these instructions could be improved by noting that such verifications (eg. police reports, medical certificates) may not always be reasonably available to the person (particularly sometime after the event) and that, even where the suggested verification cannot be obtained, the person’s reasonable excuse” etc should be considered and a decision made on the balance of probabilities.
6.24 One specific example of inappropriate advice, included in the Centrelink instructions and training material, relates to decision making on breaches for failure to attend an interview for the purposes of negotiating an activity agreement. As noted previously (paragraph 4.9) in such cases an activity test breach may be imposed on the basis that the person is
“unreasonably delaying entering into an agreement”. However the Centrelink instructions indicate that,
you must not …..revoke the breach notification just because they now agree to attend the interview or comply with their PFWA.
and
JNM/CWCs should not seek to have breach notifications revoked on the basis that a job seeker has simply ‘turned up’ in spite of failing to attend one or more prior
appointments. CSOs should only make a decision on the basis of the job seeker’s actions in failing to attend the first appointment. To do otherwise sends the wrong message to job seekers and runs counter to the main purpose of the Activity Test provisions of the legislation, which is to ensure that job seekers comply at all times with their obligations for the receipt of income support.
6.25 The above statements indicate a lack of understanding of the basis of activity test breach decisions in such cases and misrepresent the purpose and application of the activity test.