Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004-2005-2006-2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SECURITY AMENDMENT (2007 MEASURES NO. 2) BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Workforce Participation the Honourable
Sharman Stone MP)
SOCIAL SECURITY AMENDMENT (2007 MEASURES NO. 2) BILL 2007
OUTLINE
The Bill contains amendments which extend participation exemptions to principal
carers who are relatives but not parents of children. This is an extension of the
Welfare to Work reforms which enabled principal carers to receive an automatic
exemption from participation requirements if they meet the laws and regulations of
their state/territory to provide foster care and they are actively providing foster care in
that jurisdiction.
An amendment is also made to clarify the operation of section 12 of the Social
Security (Administration) Act 1999 and to ensure that claims arising as a result of the
operation of that section are not taken to have been made more than 13 weeks prior to
the determination that the section should apply.
The Bill makes clear, within the relevant section, that the recovery of a social security
debt is not able to be waived due to special circumstances if the debt has arisen due to
a person knowingly failing or omitting to comply with the Social Security
(Administration) Act 1999.
The Bill also provides for the Minister to make guidelines regarding the determination
of a person's capacity to work. Terms in the impairment tables in Schedule 1B of the
Social Security Act 1991 are also updated.
FINANCIAL IMPACT STATEMENT
The estimated financial impact associated with this Bill is minimal, with total
approximate costs of $6.2 million over four years.
House of Representatives 1 Social Security (2007 Measures
No. 2) Bill 2007
SOCIAL SECURITY AMENDMENT (2007 MEASURES NO. 2) BILL 2007
NOTES ON CLAUSES
Clause 1 sets out how the Act is to be cited, that is, the Social Security Amendment
(2007 Measures No. 2) Act 2007.
Clause 2 provides a table that sets out the commencement dates of the various
sections to the Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or repealed
as set out in that Schedule.
For ease of description, this explanatory memorandum uses the following
abbreviations:
`Social Security Act' means the Social Security Act 1991; and
`Administration Act' means the Social Security (Administration) Act 1999.
House of Representatives 2 Social Security (2007 Measures
No. 2) Bill 2007
Summary
SUMMARY
The amendments made to the Social Security Act extend participation exemptions to
principal carers who are relatives but not parents of children. The principal carer
person must be a relative of the child, but not the parent (includes natural, adoptive
and step parent) of the child, the child must be directed to live with the person under
either a parenting order made under the Family Law Act 1975, a state child order, or
overseas child order which are registered under the Family law Act 1975 and the
person must be complying with that order.
The Bill also contains an amendment to clarify the effect a person's obligations under
the Administration Act have on the waiver of recovery of debts due to special
circumstances. When the Administration Act was introduced, most customer
obligations (such as notification of changes to circumstances and requirements to
attend appointments) were moved from the Social Security Act to the new
Administration Act. However, the section of the Social Security Act which allows the
Secretary to waive the recovery of debt in special circumstances was not specifically
amended to account for this change. This amendment will make clear in the relevant
section that a knowing failure or omission to comply with a provision of the
Administration Act precludes waiver of the recovery of a debt on the grounds of
special circumstances.
Further amendments to the Administration Act clarify the operation of section 12
which allows a recipient on one payment who subsequently qualifies for another
payment to be taken to have made a claim for the other payment without the need for
the recipient to fill in a separate claim form. The amendment also limits the extent to
which a deemed claim can retrospectively be taken to have been made under section
12.
Amendments are also made to include powers for the Minister to make guidelines
regarding the determination of a person's continuing inability to work, the application
of impairment ratings, partial capacity to work and incapacity exemptions. The
outdated references to medical officers in the context of the impairment tables are
replaced with the term `assessors'.
House of Representatives 3 Social Security (2007 Measures
No. 2) Bill 2007
Schedule 1 - Amendments
SCHEDULE 1 - AMENDMENTS
EXPLANATION OF CHANGES
Social Security Act 1991
Item 1 inserts new section 5E. This new section provides a definition of
`relative (other than a parent)'. A person is considered to be a relative of a child
(other than a parent) if the person is not the child's natural parent, adoptive parent or
step-parent; and the person is related to the child by blood, adoption or marriage; or if
the child is an Aboriginal or Torres Strait Islander child who has traditional
Aboriginal or Torres Strait Islander kinship ties - the person is related to the child
under Aboriginal or Torres Strait Islander kinship rules; or if the child is a member of
a community that accepts relationships other than those referred to above as kinship
ties, the person is accepted by the community to be related to the child.
Items 2 to 4 amend section 16B of the Social Security Act. Section 16B sets out when
a person will have a partial capacity to work. The effect of the amendments is to
provide that the current guidelines that can be made by the Secretary under
subsection 16B(4) will now be required to be made by the Minister. Additionally,
rather than the Secretary (or other decision maker) having regard to such guidelines,
the guidelines (if made) will need to be complied with. Guidelines will also be able to
be made in respect of subsection 16B(2). No guidelines are currently in place under
subsection 16B(4).
Item 5 amends subsection 23(1) to insert a definition of `Aboriginal or Torres
Straight Islander child'. Aboriginal or Torres Strait Islander child means a child who
is a descendant of an indigenous inhabitant of Australia; or an indigenous inhabitant
of the Torres Strait Islands. This definition is intended to align closely with the
definitions in the Racial Discrimination Act 1975.
Item 6 repeals the definition of 'family law order' that is intended to be inserted into
subsection 23(1) by the Social Security Amendment (2007 Measures No.1) Act 2007
However, if that Act does not commence prior to this Act then no definition will be
repealed.
Item 7 inserts into subsection 23(1) broadly the same definition of `family law order'
as would be inserted by the by the Social Security Amendment (2007 Measures No.1)
Act 2007. `Family law order' means a parenting order within the meaning of
section 64B of the Family Law Act 1975, or a family violence order within the
meaning of section 4 of that Act, or a State child order registered under Subdivision B
of Division 13 of Part VII of that Act, or an overseas child order registered under
Subdivision C of Division 13 of Part VII of that Act.
Family law orders do not include parenting plans, regardless of whether the parenting
plans are registered, supersede wholly or in part previously made parenting orders, or,
to the extent that they contain child welfare provisions, or have effect as if they were
parenting orders.
House of Representatives 4 Social Security (2007 Measures
No. 2) Bill 2007
Schedule 1 - Amendments
Items 8 and 10 insert subsections relevant to the determination of qualification for
disability support pension. Item 8 inserts new subsections 94(4A) and 94(4B) which
provide that with respect to a person's impairment rating under the Tables in
Schedule 1B and a determination on a person's continuing inability to work, the
Secretary must consider any guidelines in force. These guidelines can be made by the
Minister by legislative instrument under 94(4B).
Item 10 inserts new subsections 94A(4A) and 94A(4B) which provide that with
respect to a person's impairment rating under the Tables in Schedule 1B and a
determination on a person's current inability to work, the Secretary must consider any
guidelines in force made by the Minister by legislative instrument under 94A(4B).
Items 9, 11 to 13, 26 and 28 repeal notes that are redundant.
Items 14, 15, 19 to 24 and 30 to 32 amend subsections 502D(3), 542FA(3), 602C(3)
and 731DB(3). These subsections are relevant to parenting payment, youth allowance,
newstart allowance and special benefit respectively and provide for exemptions from
activity test or participation requirements (whichever is relevant to the particular
payment).
Items 14, 19, 22 and 30 amend the above subsections as a consequence of a new
paragraph being inserted into those subsections. Items 15, 20, 23 and 31 insert a new
paragraph (d) into each of the subsections. This paragraph provides for a new
participation exemption where a relative (other than a parent), who is a principal
carer, has a child living with them in compliance with a family law order. Although
the relative needs to be a principal carer, that relative need not be the principal carer
of the child who is the subject of the family law order. The exemption available to
this group of people is on the same basis as exemptions provided to principal carers
who are active and registered foster carers, home educators and distance educators.
The exemption can be up to 12 months. This exemption takes into account the
additional and significant responsibility that relatives sometimes take on with regard
to care of a child in circumstances where the parent(s) are unable or unwilling to do
so.
Additionally, for single principal carers who have an exemption under subsection
542FA(3) relevant to youth allowance and subsection 602C(3) relevant to newstart
allowance, a higher rate of payment equivalent to the pension PP (single) rate will be
paid (see current points 1067G-B3A and 1068-B5).
Item 16, 21, 24 and 32 insert new notes flagging the definitions of family law order
and relative (other than a parent).
Items 17, 18, 25 and 33 insert a requirement for the Secretary to comply with any
guidelines made by the Minister under legislative instrument. The guidelines are
relevant for when a parenting payment, youth allowance, newstart allowance or
special benefit recipient has an incapacity exemption from either the activity test or
participation requirements.
House of Representatives 5 Social Security (2007 Measures
No. 2) Bill 2007
Schedule 1 - Amendments
The guidelines can be made in respect of determining whether:
· a person is incapacitated for work because of a sickness or an accident;
· the incapacity is caused wholly or virtually wholly by a medical condition
arising from the sickness or accident; and
· the incapacity is or is likely to be of a temporary nature.
The Minister may also make guidelines for the purposes of determining whether
within the definition of work, the work is of a kind that a person could be reasonably
expected to do.
Item 27 makes a technical amendment to section 660XBI.
Item 29 and 34 amend subparagraphs 660YAB(1)(a)(ii) and 771(1)(a)(ii) to omit
reference to section 12 of the Administration Act. The subparagraphs are relevant to
mature age allowance and partner allowance which were closed to new claimants on
20 September 2003. The reference to section 12 of the Administration Act is omitted
as new section 12 will not allow a claim to have been taken to made more than 13
weeks prior to the determination by the Secretary that the claim has been made.
Therefore, section 12 of the Administration Act will have no operation in relation to
these closed payments.
Item 35 amends subparagraph 1237AAD(a)(ii) to clarify that a knowing failure or
omission to comply with a provision of the Administration Act will preclude waiver
of a debt under section 1237AAD. The purpose of the inclusion of the reference to the
Administration Act in subparagraph 1237AAD(a)(ii) is to make it clear, in that
section, that the obligations under the Administration Act apply. Section 244 of the
Administration Act would provide that the reference to `this Act' in the current
subparagraph 1237AAD(a)(ii) is to be taken as a reference to corresponding
provisions of the Administration Act (see the judgment of the Full Bench of the
Federal Court in Secretary, Department of Family and Community Services v Lind
(2004) 79 ALD 64). Nonetheless, Item 35 is designed to make it clear that
subparagraph 1237AAD(a)(ii) refers to provisions of the Administration Act (as
suggested by the Administrative Appeals Tribunal in Re Mirza and Secretary,
Department of Families, Community Services and Indigenous Affairs [2007] AATA
1309 at paragraph 45). As the amendment is only a clarification to the particular
provision, it is appropriate that the amendment takes effect from the day the
Administration Act commenced being 20 March 2000.
Items 36 to 46 amend Schedule 1B of the Social Security Act. Schedule 1B contains
Impairment Tables which are used in the assessment of a person's work related
impairments. This assessment is used in determining a person's qualification for
disability support pension.
Under Schedule 1B the diagnosis of a person's condition is a function that may be
appropriately undertaken by medical practitioners. Medical information and evidence,
such as a treating doctor's report, are required in identifying conditions. However,
House of Representatives 6 Social Security (2007 Measures
No. 2) Bill 2007
Schedule 1 - Amendments
determining the impact of impairments or conditions on a person's work functionality
requires knowledge and experience in occupations and the types of interventions that
may increase capacity. Assessors, such as job capacity assessors, have the necessary
knowledge to apply the work related Impairment Tables. Therefore the references to
medical officers in the context of the Impairment Tables are to be replaced with the
term `assessors'.
Item 36 omits `Department of Social Security 1997' from the cover page of Schedule
1B. This amendment removes the redundant reference to the name of the department
which previously had administrative responsibility for disability support pension.
Item 37 omits the term `medical assessment' and substitutes `assessment' into
paragraph 1 of the introduction to the Impairment Tables in Schedule 1B.
Items 38 to 40, 42, 44 and 46 omit the term `Medical Officer' and substitutes
`assessor'. This term appears in Schedule 1B in the introduction to the Impairment
Tables at paragraphs 2, 6, 8 and 10, and in tables 2 and 22.
Item 41 omits `Medical officers must use their clinical judgement' and substitutes
`Assessors must use their judgement' in paragraph 8 of the introduction to the
Impairment Tables. Item 43 omits `clinical judgement of medical officers' and
substitutes `judgement of assessors' in table 1 of Schedule 1B. Item 45 omits
`clinical' and substitutes `a medical officer's' in table 22 of Schedule 1B.
Social Security (Administration) Act 1999
Item 47 repeals section 12 and substitutes a new section 12. Broadly, the new section
12 has the same effect as the previous section 12 as it allows the Secretary to deem a
person to have made a claim for a different income support payment without the need
for the person to fill in a separate claim form. However, previously section 12
required that a transfer under another provision take place in order for the provision to
operate. This requirement is now removed. New section 12 remains a discretionary
provision and may only be applied where a person has either become qualified for a
new income support payment while receiving, or immediately after ceasing to receive,
another income support payment. The amendment ensures that the deemed claim
provision is correctly applied and limits the extent to which determinations can be
made to deem a person to have a made a claim prior to the making of the
determination.
Section 12, as amended, limits the Secretary's power to deem that a person has made
a claim for another income support payment to a day no earlier than 13 weeks prior to
the date of the determination. Under subsection 12(1), the date of the Secretary's (or
delegate's) determination is the date that the Secretary decides a person became
qualified for a new income support payment. Further, a claim cannot be deemed to
have been made on a day prior to the day the person became qualified for the new
payment. The practical effect is that a person's income support payment may only be
backdated for a period of up to 13 weeks from the date of the Secretary's (or
delegate's) determination.
House of Representatives 7 Social Security (2007 Measures
No. 2) Bill 2007
Schedule 1 - Amendments
Item 48 outlines the application of the amendment to section 12 of the Administration
Act. Determinations made under section 12 on or after the commencement of the
amendment in Item 47 will be made under new section 12. New section 12 will apply
even where the date of qualification occurs prior to the date of effect of the
amendment to section 12 (that is, before 1 January 2008). To the extent that current
section 12 could be different to the new section 12, this application clarifies that as
section 12 is a discretionary provision no accrued right to the application of current
section 12 exists after the commencement of new section 12. However, any reviews
that involve the application of section 12 and that are currently on foot as at
1 January 2008, can be determined in accordance with how current section 12
operates.
Alanna commenced receiving newstart allowance in September 1998. In
February 2008 Alanna seeks to be transferred to wife pension claiming that
she became qualified for that pension in March 1995. Wife pension cannot be
granted unless a claim was made prior to 30 June 1995. Centrelink consider
whether Alanna should be taken to have made a claim for wife pension under
section 12 prior to 30 June 1995. Even if Alanna was qualified for wife
pension, section 12 only allows for a claim to have been taken to be made 13
weeks prior to the Secretary determining in February 2008 that section 12
applies. This means that Alanna cannot be taken to have made a claim for
wife pension prior to 30 June 1995 and therefore Alanna will not be able to be
granted such a claim for wife pension.
Mark has been receiving newstart allowance since 2000. In July 2008 Mark
provides a medical certificate to Centrelink stating he has a medical condition
as a result of an incident in February 2006. Further medical evidence and a
subsequent job capacity assessment confirms his qualification for disability
support pension. On 24 July 2008 Centrelink determines that Mark should be
taken to have made a claim for disability support pension even though he has
not actually lodged such a claim. Mark requests the claim for disability
support pension to be backdated to February 2006. Under section 12 Mark
can only be taken to have made a claim 13 weeks prior to the date that the
determination was made by the Secretary to deem that Mark made a claim.
This means his claim for disability support pension can only be taken to have
been made 13 weeks prior to 24 July 2008. Centrelink must still process and
grant Mark's claim for him to receive disability support pension.
House of Representatives 8 Social Security (2007 Measures
No. 2) Bill 2007
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