Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SECURITY AND FAMILY ASSISTANCE
LEGISLATION AMENDMENT
(MISCELLANEOUS MEASURES) BILL 2006
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families, Community Services and Indigenous Affairs,
the Hon Mal Brough MP)
SOCIAL SECURITY AND FAMILY ASSISTANCE
LEGISLATION AMENDMENT
(MISCELLANEOUS MEASURES) BILL 2006
OUTLINE
This bill makes a number of minor amendments to improve the effectiveness
of social security, family assistance and related legislation. The amendments
remove anomalies, clarify the legislation in line with established policy and
make technical corrections and refinements.
For example, the measures make sure that:
· child care benefit for registered care is limited to the fee paid;
· child care benefit is precluded for care provided as part of a
compulsory education programme;
· the concept of a temporarily separated couple (who attract a higher
rate of some supplementary payments such as rent assistance and
remote area allowance) can include a temporarily separated de facto
couple;
· the correct range of Commonwealth payments are taken into account
as income for the low-income health care card;
· the meaning of homelessness for special benefit is aligned with the
meaning of homelessness that applies more broadly, such as for youth
allowance;
· certain redundant housing Acts are repealed; and
· necessary technical corrections are made, including many that are
consequential on the commencement of the Legislative Instruments
Act 2003.
There is no significant new policy introduced by this bill.
The majority of the measures commence on Royal Assent. Some
amendments, however, have different commencement dates for technical
reasons.
Financial impact statement
The measures in this bill have no or negligible financial impact.
SOCIAL SECURITY AND FAMILY ASSISTANCE
LEGISLATION AMENDMENT
(MISCELLANEOUS MEASURES) BILL 2006
NOTES ON CLAUSES
Clause 1 sets out how the Act is to be cited, that is, the Social Security and
Family Assistance Legislation Amendment (Miscellaneous Measures)
Act 2006.
Clause 2 provides a table that sets out the commencement dates of the
various sections in, and Schedules 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repealed as set out in that Schedule.
This Explanatory Memorandum uses the following abbreviations:
· `Family Assistance Act' means the A New Tax System (Family
Assistance) Act 1999;
· `Family Assistance Administration Act' means the A New Tax System
(Family Assistance) (Administration) Act 1999;
· `Social Security Act' means the Social Security Act 1991;
· `Social Security Administration Act' means the Social Security
(Administration) Act 1999;
· `Veterans' Entitlements Act' means the Veterans' Entitlements Act
1986;
· `CCB' means child care benefit; and
· `Legislative Instruments Act' means the Legislative Instruments Act
2003.
1
Schedule 1 - Amendment of the A New Tax System (Family Assistance)
Act 1999
Summary
This Schedule provides for minor amendments to the Family Assistance Act,
relating to CCB. These amendments commence on the day of Royal Assent.
Background and explanation of the changes
Provide the power for the Minister to determine a class of individuals who are
taken to have recognised training commitments or study commitments
The amount of CCB for care provided to an individual's child by an approved
child care service depends, among other things, on the weekly limit of hours
of care in respect of which the individual is eligible for CCB. An individual who
`satisfies the work/training/study test' may be eligible for CCB for up to
50 hours of care in a week (subsection 54(2) refers).
Section 14 provides that an individual satisfies the work/training/study test if
the individual has either `recognised work or work related commitments',
`recognised training commitments' or `recognised study commitments'.
Subsection 15(1) specifies circumstances in which an individual has
recognised work or work related commitments (for example, is in paid work).
Section 16 specifies circumstances in which an individual has recognised
training commitments (is undertaking a training course for the purpose of
improving his or her work skills and/or employment prospects) and section 17
specifies circumstances in which an individual has recognised study
commitments (for example, is undertaking a course of education for the
purpose of improving his or her work skills and/or employment prospects).
Subsection 15(2) provides the Minister with a discretionary power to
determine, by a legislative instrument, that individuals included in a specified
class are individuals who are taken to have recognised work or work related
commitments (for example, individuals on annual leave from paid work fall into
this category).
There are no equivalent ministerial determination-making powers relating to
recognised training commitments and recognised study commitments. The
lack of such powers makes the administration of the work/training/study test,
as it relates to training and study commitments, unduly restrictive.
2
Items 1 and 2 amend sections 16 and 17, respectively, to remedy this
impediment. Item 1 inserts new subsection 16(3), which provides the Minister
with the discretion to determine that individuals in a specified class are taken
to have recognised training commitments. Item 2 inserts new
subsection 17(3), which provides the Minister with the discretion to determine
that individuals in a specified class are taken to have recognised study
commitments. An example of the application of the new power would be
deeming short training/study breaks to be a recognised training or study
commitment for the purposes of the work/training/study test, with the effect
that the limit of 50 hours in a week will apply to the individual.
A determination under new subsection 16(3) or 17(3) is a legislative
instrument.
Clarify that CCB for care provided by an approved child care service is not
available in respect of care provided as part of compulsory education
programme
CCB is available for care provided to a child either by an approved child care
service (claimed either as ongoing fee reductions or as a lump sum for a past
period) or by a registered carer (claimed as a lump sum for a past period).
In the case of care provided by a registered carer, paragraph 45(1)(h)
explicitly states that an individual is eligible for CCB if the care is not provided
as part of the compulsory education programme in the State or Territory
where the care is provided. In the situation where a teacher is also approved
as a registered carer, the lines between the care provided to a child by that
person in his or her capacity as a registered carer and the care provided to
the child by the same person in his or her capacity as a teacher, may become
blurred. Paragraph 45(1)(h) ensures that CCB for registered care cannot be
successfully claimed in respect of the hours spent at school by school children
in the care of their teachers.
While the policy underlying the eligibility for CCB for care provided by an
approved child care service has been the same, the relevant CCB eligibility
provisions (sections 43 and 44) do not contain any specific exclusion of care
provided as part of the compulsory education programme. Such an exclusion
was not thought to be necessary, because, generally, a school and an
approved child care service are separate entities, so care provided to a child
in the school context by the school can usually be distinguished from care
provided by an approved child care service in the service's environment. In
this situation, it is reasonably clear that care provided in the school as part of
the education programme is not child care provided by an approved child care
service. However, with the provision of outside school hours care by some
schools becoming more widespread, it has become necessary to clarify the
eligibility provisions relevant to CCB for care provided by an approved child
care service to ensure that the care provided as part of the compulsory
education programme does not give rise to eligibility for CCB.
3
Items 3 and 4 amend, respectively, subsection 43(1), dealing with eligibility
for CCB by fee reduction for care provided by an approved child care service,
and subsection 44(1), dealing with eligibility for CCB for a past period for care
provided by an approved child care service. Item 3 inserts new
paragraph 43(1)(b) and item 4 inserts new paragraph 44(1)(b). Both new
paragraphs mirror existing paragraph 45(1)(h) that excludes eligibility for CCB
for care provided by a registered carer if the care is provided as part of a
compulsory education programme. The amendments ensure that eligibility for
CCB by fee reduction or for a past period does not arise if care provided by an
approved child care service is provided as part of the compulsory education
programme in the State or Territory.
Provide for Secretary, rather than Minister, to make a determination that an
approved child care service is a sole provider
Under section 57 of the Family Assistance Act, the Minister has a
discretionary power to determine that an approved child care service is the
sole provider in an area of the kind of care the service provides, if the Minister
is satisfied that the service would be likely to close if the determination were
not made. While such a determination is in force, a limit of 50 hours of care in
a week applies to eligibility for CCB for care provided by the service (instead
of the lower limit of hours that applies for care provided by a service that is not
a sole provider).
The Minister also has the capacity under paragraph 57B(c) to specify rules
relating to making sole provider determinations, and has done so (the current
rules are specified in the Child Care Benefit (Hours of Eligibility Rules)
Determination 2000).
Paragraph 57C(c) requires that the Minister's determination of a sole provider
under section 57 be made in accordance with the rules made for that purpose
by the Minister under section 57B.
The current arrangement, under which the power to make sole provider
determinations for individual services rests with the Minister, is
administratively inefficient. It is also inconsistent with the role the Secretary
has under the Family Assistance Act in administering other provisions
relevant to the determinations of the weekly limit of care for the purposes of
CCB eligibility.
Item 5 substitutes the reference to `Minister' in subsection 57(1) with a
reference to `Secretary'. As a result of this amendment, the Secretary will be
able to make sole provider determinations under this section, instead of the
Minister.
4
Items 6 to 8 make consequential amendments to subsections 57(3) and (4),
paragraph 57B(c), and paragraph 57C(c). Those items substitute the
references to `Minister' in those provisions with references to `Secretary'.
The amendments made by items 5 to 8 do not affect the Minister's power
under section 57B to specify rules for the purposes of making sole provider
determinations under section 57.
Item 9 contains saving provisions.
Subitem 9(1) is relevant to sole provider determinations made by the Minister
under section 57 before the commencement of the amendments made by
items 5 to 8. This subitem provides that these determinations continue in
force after the commencement of the amendments as if the determinations
were made by the Secretary.
Subitem 9 (2) is relevant to the rules relating to the making of determinations
under section 57 made by the Minister under paragraph 57B(c) before the
commencement of the amendments made by items 5 to 8. This subitem
provides that the rules made by the Minister for the purposes of the
determination of a sole provider by the Minister continue to apply, after the
commencement of the amendments, to the Secretary's determinations of a
sole provider in the same way as they applied to the Minister's
determinations.
Subitem 9(3) clarifies that the saving arrangements in item 9 do not prevent
the variation or revocation of the determinations covered by the saving
arrangements (that is, determinations of a sole provider under section 57 or of
rules under paragraph 57B(c) that were made by the Minister before
commencement of the amendments made by items 5, 6 and 7). After the
commencement of these amendments, these determinations may be varied or
revoked by the Secretary.
Limiting child care benefit for care provided by a registered carer to the fee
amount paid
Sections 71 and 72 limit the total amount of CCB and fee reductions,
respectively, for care provided by an approved child care service in a week. If
an individual claimed CCB for a past period, a CCB amount for care provided
in a week cannot exceed the amount the service charged the individual for
that care. If an individual claimed CCB by fee reduction, a CCB and fee
reduction amount for care provided in a week cannot exceed the amount the
service would have charged the individual for that care if he or she were not
eligible or conditionally eligible for CCB. In other words, an amount of CCB
for a week, for care provided by an approved child care service in the week, is
limited to the full fee amount chargeable for that care (for the purposes of
eligibility for CCB for care provided by an approved child care service, it is
irrelevant whether the fees were paid or not - paragraphs 43(1)(c) and
44(1)(c) refer).
5
There is no equivalent limitation in relation to a CCB amount for care provided
in a week by a registered carer that would establish a relationship between
the CCB amount and the fee amount paid for the care (it is a condition of
eligibility for CCB for care provided by a registered carer that the fees are paid
- paragraphs 45(1)(d) refers). For registered care, the only limitation on the
total amount of CCB for the week is provided via limiting the total number of
CCB attracting hours of care to 50, as specified in the formula in section 84.
Therefore, a CCB amount for this type of care may, potentially, exceed the
amount paid for the care.
Item 12 repeals the existing section 84, dealing with the weekly limit on CCB
for care provided by a registered carer, and substitutes a new section 84. The
amended section 84 provides that the total amount of CCB for care provided
by a registered carer in a week is the amount calculated in accordance with
the current formula that includes the limit of 50 hours of care in a week or the
amount paid for the care, whichever is the lesser amount. The amendment
ensures that CCB for this type of care does not exceed the amount paid for
the care.
6
Schedule 2 - Amendment of the A New Tax System (Family Assistance)
(Administration) Act 1999
Summary
This Schedule provides for minor technical amendments to the Family
Assistance Administration Act. These amendments commence on the day of
Royal Assent.
Background and explanation of the changes
Amendment to paragraph 66(2)(a) to correct cross-references
Inalienability of specified family assistance payments (including CCB) is
currently provided by subsection 66(1). Subsection 66(2) specifies the
manner in which such payments are made.
Paragraph 66(2)(a) contains references to payment decisions made under
subsections 56(2) and 56A(2). However, subsections 56(2) and 56A(2) were
repealed by the Family and Community Services Legislation Amendment
(Budget Initiatives and Other Measures) Act 2002, Schedule 2, items 8 and 10
respectively. The corresponding current provisions are subsections 56(3) and
56A(3).
Item 1 substitutes the correct references in paragraph 66(2)(a).
Amendment to subsection 109G(2) to insert a missing word
Item 2 makes a technical amendment to insert a missing word `and' at the
end of paragraph 109G(2)(e) of the Family Assistance Administration Act.
This will ensure the sequence of paragraphs in the subsection reads correctly.
7
Schedule 3 - Amendment of the Social Security Act 1991
Summary
This Schedule provides for the bill's minor policy and technical measures
insofar as they require amendment to the Social Security Act. Most of these
measures are addressed fully by this Schedule and are discussed in detail
below. However, some of the measures have related amendments in
Schedule 4, which amends the Social Security Administration Act, as
indicated below. Unless otherwise indicated, all amendments commence on
Royal Assent.
Background and explanation of the changes
Definition of `temporarily separated couple' - remove legally married criterion
A temporarily separated couple consists of two members of a couple who are
living separately and apart on a temporary basis, but not because of illness or
respite care (in those circumstances, other definitions and arrangements
apply).
Temporarily separated couples attract a higher rate of certain supplementary
social security and family assistance payments (such as rent assistance and
remote area allowance) to recognise the cost of maintaining separate
households. As it stands, the definition applies only to temporarily separated
legally married couples, not to de facto couples. This is out of step with
related policy and the definition is being amended so it applies to all couples
usually recognised for social security and family assistance purposes.
Item 1 provides for this measure by repealing existing paragraph 4(9A)(b) of
the Social Security Act, which currently contains the requirement that
temporarily separated couples be legally married.
Correct various cross-references
The definition of `ordinary income' in subsection 8(1) of the Social Security Act
has a note signposting section 1171 as the provision giving effect to the
reduction of ordinary income for periodic compensation payments. However,
the provision giving this effect is now section 1176. Point 1064-A2 of the
same Act refers to point 1064-F2, which was repealed some time ago. The
heading to section 1066 includes sole parent pension among the payments
for which it addresses the question of rate. However, sole parent pension
was repealed some years ago.
Items 2 and 40 (including the note following item 40) correct all of these
technical deficiencies.
8
Repeal redundant housing legislation
There are seven Acts relating to housing that are no longer operational and
are being repealed by Schedule 7 to this bill. One of these is the Homeless
Persons Assistance Act 1974 (the HPA Act). The HPA Act is currently
referred to in paragraph 8(8)(d) of the Social Security Act, where specified
assistance given to a person under the HPA Act is excluded from the person's
income for social security purposes.
Item 3 repeals paragraph 8(8)(d) as a consequence of the repeal of the
HPA Act.
Reinstate definition of `periodic amount' (inadvertently repealed)
Subsection 8(11) of the Social Security Act defines the concept of an `exempt
lump sum' for the purposes of the income test. In part, this draws its meaning
from the concept of a `periodic amount', stated to be defined in
subsection 10(1A). However, that subsection was repealed, along with the
rest of section 10, by the Family and Community Services Legislation
Amendment Act 2003, because the maintenance income definitions contained
in it are now present in the family assistance law and were no longer required
for the social security law. Nevertheless, subsection 8(11) still requires the
periodic amount concept that is no longer there.
Accordingly, items 4 and 5 reinstate the necessary definition, but this time
alongside subsection 8(11) itself, as a new subsection 8(11A).
Financial hardship farmer - repeal redundant provisions and references
Definitions relating to a `financial hardship farmer' appeared in the social
security law until their repeal in 2000, although they had been redundant since
1993, when new arrangements for farm household support were introduced.
However, the 2000 repeal failed to repeal or amend provisions (other than the
definitions themselves) that were relevant to the definitions, and that are now
redundant.
Items 6, 8, 9, 10, 27 and 63 to 71 now make these technical corrections.
Similarly, items 11 and 12 of Schedule 4 make the relevant corrections in the
Social Security Administration Act.
All of these amendments commence on Royal Assent except for the repeal of
subsection 593(2) of the Social Security Act made by item 27. That item
commences on 1 July 2006, immediately after an amendment made to the
same section by the Employment and Workplace Relations Legislation
Amendment (Welfare to Work and Other Measures) Act 2005 (although it will
commence on Royal Assent to this bill if this occurs later than 1 July 2006).
The reason for this commencement arrangement is to make it clear that the
intended result is that subsection 593(2), which is redundant, be repealed, not
amended as the above Act provided.
9
Remote area allowance - include Lord Howe Island
Lord Howe Island is included in Special Tax Zone A and should also be
included within the social security definition of `remote area' so that residents
can attract remote area allowance as part of their social security payments.
Item 7 now makes this inclusion clear by amending the definition in
subsection 14(1) of the Social Security Act.
Item 80 makes an associated technical amendment to remove reference to
remote area allowance from section 1216. That section says that certain
add-on amounts including remote area allowance are not to be paid to a
person overseas beyond a person's portability period (usually 13 weeks) or
26 weeks (if the portability period is unlimited). However, this provision is
redundant in relation to remote area allowance because subsection 14(2)
already limits payment of remote area allowance to a person outside the
remote area to eight weeks, and overseas is necessarily outside the remote
area.
Definition of `in gaol' and psychiatric confinement - clarify established policy
Section 1158 of the Social Security Act provides that certain social security
payments are not payable to a person while the person is `in gaol' or
undergoing psychiatric confinement because the person has been charged
with an offence. `In gaol' is defined in subsection 23(5). A person is in gaol if
the person is imprisoned in connection with the person's conviction for an
offence, or being lawfully detained in a place other than a prison in connection
with such a conviction, or undergoing a period of custody pending trial or
sentencing for an offence.
Uncertainty has been cast over the application of these provisions where a
person is transferred during his or her sentence from a gaol to a psychiatric
hospital. The Federal Court decision in Blunn v Bulsey (1994) 53 FCR 572
applied a narrow test of what was meant by `in connection with' an offence,
requiring a connection between the mental state of the person and the crime
for which they are imprisoned.
The later Federal Court decision in Garden v Secretary, Department of Family
and Community Services [2001] FCA 827 laid down a wider test, requiring a
connection between the person's detention and their conviction for an offence.
In essence, Garden suggested that it should not matter whether a person is
detained in a prison, psychiatric hospital or some other place as long as he or
she is still serving the sentence arising from the conviction.
10
Although the test from Garden is in line with the established policy in this
area, there remains a risk that a court or tribunal could validly apply the
Bulsey decision in some cases. Accordingly, this Schedule includes
amendments to ensure a social security payment covered by section 1158 is
not payable to a person while the person is being lawfully detained (whether in
a gaol, psychiatric hospital or other place) during a sentence arising from the
person's conviction of an offence. If the person were to be released before
the expiry of the sentence, the payment preclusion would end. Similarly, if the
person were still in a psychiatric hospital when the sentence expired, he or
she would cease to be regarded as being lawfully detained and the payment
preclusion would end.
Item 11 addresses this measure with a substituted subsection 23(5) of the
Social Security Act, containing the definition of `in gaol'. New
paragraph 23(5)(b) is a reiteration of existing paragraph 23(5)(c). New
paragraph 23(5)(a) takes the place of existing paragraphs 23(5)(a) and (b)
and is modified to achieve the effect sought. In particular, whether a person is
`in gaol' under new paragraph (a) is temporally based, that is, based on the
duration of the person's sentence, regardless of the place of detention.
However, the new paragraph also makes clear that it does not apply while the
person is on release on parole or licence. This is to overcome any implication
from section 19AZC of the Crimes Act 1914 (which treats a person released
on parole or licence as still being under sentence) that a person should be
taken to be again `in gaol' if the person is released on parole or licence and
then detained again during the term of the original sentence but not in
connection with that sentence, for example, for investigation of a new offence.
Should a person in such a situation fall within the definition of `in gaol' in
relation to a new offence, that would be a separate matter.
Nor is it intended that a person released on a good behaviour bond under
paragraph 20(1)(a) of the Crimes Act 1914 be regarded, for this purpose, as
being `under sentence', despite subsection 23WA(8) of that Act, which deals
with the matter of sentence only in relation to certain unrelated definitions.
Repeal notes referring to repealed provisions
The Social Security (Administration and International Agreements)
(Consequential Amendments) Act 1999 repealed many provisions in the
Social Security Act that had been relocated into the Social Security
Administration Act. However, some notes to provisions in the Social Security
Act that referred to provisions relocated in this way were not amended or
repealed as they should have been.
Items 12 and 21 to 24 now repeal those incorrect notes.
11
Bereavement payment - complete references to long-term social security
recipient
Certain sections of the Social Security Act provide for a person's qualification
for bereavement payment if he or she is receiving a particular payment and
one of three criteria is met in relation to his or her deceased partner. One of
these criteria is that the partner was a `long-term social security recipient',
which means a person receiving a social security benefit and with a specified
history of payment receipt in the previous 12 months. The following section in
each case sets out the amount of bereavement payment, but there is no
stipulation as to which amount applies if the partner was a long-term social
security recipient.
Therefore, amendments are made to make it clear the person attracts an
amount of bereavement payment on a similar basis to a person whose partner
was receiving a social security pension. That is, the person will be paid the
amount of social security benefit that would have been payable to his or her
`long-term social security recipient' partner if the partner had not died.
Items 13, 19 and 30 make these amendments to, respectively, sections 83
(age pension), 146G (disability support pension) and 823 (special needs age,
disability support or wife pension). Minor amendments to the headings of the
relevant sections are also made.
Correct anomalies in pension bonus scheme provisions
The pension bonus scheme is addressed by a range of provisions in the
Social Security Act. An anomaly has become apparent in relation to people
whose marital status changes during the bonus accrual period. This situation
is governed by a formula, but one of the provisions potentially causes a bonus
amount to be incorrectly based on an amount that exceeds the maximum
annual pension rate.
Furthermore, the provisions that provide a formula to work out the notional
pension rate for a person who is not permanently blind are incorrect and
produce a result that departs from the original policy intention.
There are also some technical errors in the provisions.
Item 14 addresses one of the technical errors, amending
subparagraph 92C(a)(ii) of the Social Security Act to correct the signpost to
the definition of `scheduled international social security agreement', which is
now located in the Social Security (International Agreements) Act 1999.
Item 15 repeals and substitutes paragraph 93H(a) to make two more technical
corrections to terminology.
12
Items 16 and 17 repeal and substitute paragraphs 93J(3)(a) and (4)(a)
respectively. This is to correct the provisions containing the formula relating
to the notional pension rate for a person who is not permanently blind (as
described above), thus aligning the provisions with the original policy
intention. The new paragraphs make it clear that the notional pension rate is
reached by applying the adjusted percentage to the person's pension
supplement as well as to the person's maximum basic rate. That is, the
formula is to have regard to the adjusted percentage of the sum of those two
components, rather than (as currently provided) to the whole pension
supplement and the adjusted percentage of the maximum basic rate only.
Item 18 replaces the definition of `maximum basic rate' in subsection 93J(5),
as it applies for the definition of `adjusted percentage' in the same subsection.
This is to correct the anomaly described above that could cause an
inappropriate inflation of a bonus amount. In the new version of the definition,
the maximum basic rate is the sum of two specified social security rate
components for the person - the person's maximum basic rate (Step 1 of the
method statement in point 1064-A1) and the pension supplement (Step 1A of
that method statement).
These amendments in combination will produce the correct outcome under
these pension bonus scheme provisions.
Reinstate inappropriately repealed automatic termination provision - carer
payment
The Social Security Administration Act aimed to relocate into a separate Act,
without policy change, those provisions from the Social Security Act that dealt
with machinery, or administrative, matters. Before that change, old
subsection 222(1A) provided for the Secretary to give a notice to a care
receiver, requiring that person to give certain types of information relevant to
the payment of carer payment to the person providing care to the care
receiver. Old section 227 provided for the automatic termination of the carer
payment if the care receiver did not give the information as required.
New section 70 of the Social Security Administration Act provided an
equivalent rule to old subsection 222(1A). However, an equivalent of old
section 227 was not reproduced in the Social Security Administration Act.
Therefore, there is no longer the required consequence for failure to comply
with the notice. This measure reinstates the automatic termination provision
in the same terms as previously provided (see item 8 of Schedule 4).
Items 20 and 81 of this Schedule make technical amendments to
subparagraph 198C(6)(b)(i) and subsection 1223(1B) of the Social Security
Act to reflect the relocation of old subsection 222(1A). Similarly, items 6
and 7 of Schedule 4 make further technical amendments.
13
Legislative Instrument technical amendments
Schedule 8 to this bill contains numerous technical amendments flowing from
the commencement of the Legislative Instruments Act. The amendments are
mainly to reflect the new concepts introduced by the Legislative Instruments
Act. As a consequence of some of those amendments, some technical
amendments (to remove superfluous subsection numbers or references to
repealed provisions) need to be made. Items 25, 26, 76 and 77 make such
amendments.
Education entry payment for carer payment recipients - correct
cross-reference
Section 665ZFC of the Social Security Act relates to claims for the education
entry payment (EdEP) for carer payment recipients. It incorrectly refers to
another section under which the EdEP qualification arises. Item 28 now
changes that reference to the correct qualification section, so that
section 665ZFC operates properly.
Align special benefit definition of `homeless' with youth allowance
`unreasonable to live at home' definition
Special benefit is not generally payable to full-time students, nor to people in
respect of whom specified educational payments are payable. For these
exclusions to apply, the person must be either 18 or more, or less than 16 and
not an `SPB homeless person'. Therefore, students (or similar) under 16 may
still attract special benefit if they are homeless.
The meaning of homeless in this sense is covered by paragraph 739(c) of the
Social Security Act, and essentially addresses a situation in which either the
young person is not permitted to live at home or it is not reasonable to expect
them to live at home for reasons of domestic violence, incestuous harassment
or other exceptional circumstances. In addition, the young person must be
unpartnered, not have a dependent child and not be receiving continuous
income support or payments from their family.
This definition of homeless differs from the related definition that applies for
the larger customer groups of youth allowance and young disability support
pension recipients. In both of those cases, the more detailed `unreasonable
to live at home' definition from subsection 1067A(9) applies. This addresses
a situation in which the young person cannot live at home because of extreme
family breakdown or similar, or because it would be unreasonable to expect
them to live at home because of a serious risk of violence, sexual abuse or
similar, or because the parents lack stable accommodation. In addition, the
young person must not be receiving continuous income support or payments
from their family.
In the interests of efficiency and equity, the homeless test for special benefit is
being aligned with that for the larger customer groups. However, the existing
requirement to be unpartnered and not have a dependent child will continue.
14
Item 29 achieves this result by substituting a new paragraph 739(c) in place
of current paragraphs 739(c), (d) and (e). The new paragraph will effectively
introduce the homeless test from subsection 1067A(9) for this element of
special benefit.
Repeal redundant provisions
Paragraphs 1037(b) (mobility allowance) and 1061ZK(7)(b) (health care card)
of the Social Security Act relate to people who purchased a motor vehicle with
a sales tax exemption under certain provisions in the Sales Tax (Exemptions
and Classifications) Act 1935 or the Sales Tax (Exemptions and
Classifications) Act 1992. However, sales tax (including on motor vehicles)
was repealed by the A New Tax System (End of Sales Tax) Act 1999 and
replaced with the goods and services tax (GST) from 1 July 2000.
No equivalent arrangement was set up at that time to prevent mobility
allowance from being paid to people who purchase a motor vehicle free of
GST. However, the old provisions, which are now redundant, were never
repealed. Items 31, 32 and 39 now achieve this.
Correct references to an `application' for a special employment advance to
references to a `claim''
Part 2.22A of the Social Security Act provides for a social security payment
known as a special employment advance. Section 1061EM deals with
qualification for the advance by reference to the day on which a person's
`application' for it is made. However, the established concept in the social
security law is for social security payments to be `claimed', not applied for
(see, for example, section 29 of the Social Security Administration Act).
Accordingly, items 33 and 34 make this minor correction to the relevant
terminology.
Clarify crisis payment qualification
Section 1061JG of the Social Security Act provides for a person to be
qualified for a crisis payment in certain circumstances if he or she is released
from gaol, or from psychiatric confinement being undergone because the
person had been charged with committing an offence. `Psychiatric
confinement' is defined in subsections 23(8) and (9). It includes confinement
in a psychiatric section of a hospital, or any other place where people with
psychiatric disabilities tend to be confined. However, if the person is
undertaking a course of rehabilitation during the confinement, it is not taken to
be psychiatric confinement.
15
As with the `in gaol' and psychiatric confinement measure mentioned above in
the discussion about item 11, issues have arisen where a person is
transferred from gaol to psychiatric confinement. Such a transfer does not
generally constitute a `release from gaol' and so, correctly, a crisis payment
has not usually been payable. This outcome will be clearer through the
amendment made by item 11. However, it is not currently clear that a
subsequent release from the psychiatric confinement will trigger a crisis
payment under the current provisions, as intended.
Furthermore, it is not clear that the current provisions fully support the policy
intention to pay a crisis payment on a person's release from any psychiatric
confinement undergone in connection with the person's being charged with or
convicted of an offence, whether or not a course of rehabilitation was being
undertaken, and whether or not the person was transferred from a gaol to the
psychiatric confinement.
These amendments to support the current policy are subject to the usual
crisis payment qualification rules, including the minimum confinement period.
Items 35 to 37 address this measure. In particular, a new
paragraph 1061JG(1)(a) (provided by item 36) achieves the effect described
above, in conjunction with a new subsection and two new notes (provided by
item 37) that signpost the improved version of the `in gaol' definition in
subsection 23(5) (see item 11) and confirm that, in this context, the fact that a
person may be undergoing rehabilitation while in the psychiatric confinement
is not a disqualifying factor.
Health care cards for youth allowance recipients - clarify entitlement to
automatic issue card for jobseekers
Long-standing policy has been to give youth allowance jobseekers, like other
allowance recipients, a health care card automatically with their payment,
whereas youth allowance students (including new apprentices) have been
required to claim a low-income health care card so that their greater
income-earning capacity can be assessed individually (students having a
higher income free area and access to the student income bank).
However, the current social security legislation produces a different result in
relation to youth allowance recipients who swap between the student and
jobseeker streams. Essentially, the legislation providing for the automatic
issue health care card has regard to the person's status as a non-student only
at the point of grant of youth allowance. Therefore, a person who is a student
at the point of grant will continue not to be qualified for an automatic issue
health care card even if he or she later becomes a jobseeker. Conversely, a
person who is a jobseeker at grant will continue to be qualified even if he or
she later becomes a student. Neither of these results is consistent with the
established policy.
16
Item 38 addresses this by substituting a new paragraph 1061ZK(5)(a) of the
Social Security Act. This makes it clear that an automatic issue card is
available to a youth allowance recipient on a day only if the recipient is not
undertaking full-time study on that day (and is not a new apprentice, as
currently provided). This removes the point of grant criterion.
Repeal redundant provision, removing residence requirement for special
benefit pharmaceutical allowance
All social security payments, other than special benefit, have Australian
residence qualification requirements. Pharmaceutical allowance is a
component of a person's rate of social security payment. In only one of the
several rate calculators providing for pharmaceutical allowance is there a
requirement for the person to be an Australian resident before the component
may be added to the person's maximum basic rate. This residence stipulation
(in paragraph 1068-D1(a) of the Social Security Act) is redundant because it
is already covered in the person's primary qualification requirements.
However, the residence stipulation in that paragraph, rather than being merely
redundant, may operate to deny pharmaceutical allowance to a special
beneficiary. This is because, although the rate of special benefit is
discretionary, it is pegged to the maximum applicable rate of newstart or youth
allowance or austudy payment. Therefore, whereas youth allowance and
austudy payment do not have an Australian residence requirement for
pharmaceutical allowance, newstart allowance does (under
paragraph 1068-D1(a)). There is a risk this could result in the rate of special
benefit that may be determined for a person for whom the newstart rate
criteria are applicable not including a component equivalent to pharmaceutical
allowance, whereas such a limitation does not apply where youth allowance or
austudy payment rate criteria are applicable.
Item 41 repeals the redundant paragraph 1068-D1(a), ensuring that the
correct rate applies for all special beneficiaries.
Rate of rent assistance - correct rounding in indexation provisions
Long-standing policy has been that couples should receive the same total
maximum amount of rent assistance, regardless of whether it is shared or
paid to only one member of the couple. However, with the way the rounding
provisions operate when the prescribed amounts of rent assistance are
indexed, there can be a slight divergence in rates. In particular, the total
amount shared between two members of a couple can potentially be around
20c per fortnight more or less than the equivalent total amount paid to one
member of a couple.
This Schedule addresses this by aligning the maximum rate of rent assistance
paid to each of two members of a couple with exactly half of the maximum
rate (as indexed from time to time) that is paid to one member of a couple for
both of them.
17
To achieve this, items 42 to 46 replace the relevant dollar amounts in the rent
assistance rate tables with a reference to half the combined couple rate
specified in the relevant table item. Item 75 then amends the indexation
provision so that there will be no indexation of the substituted rent assistance
table entries (which are no longer dollar amounts), leaving only the combined
couple rate to be indexed as at present. This indexation will flow through to
the half-rate of rent assistance paid separately to each member of a couple.
Low-income health care card - correct definition of `income'
The Social Security Legislation Amendment (Concession Cards) Act 2001
sought to consolidate all provisions relating to concession cards administered
by the then Family and Community Services portfolio into the social security
law. Some of these provisions had previously appeared in health legislation,
including the Health Insurance Act 1973 (Health Insurance Act). While no
policy change was intended by this consolidation, a portion of the definition of
`income' for the purposes of the health care card income test, contained in
paragraph 5B(12)(a) of the Health Insurance Act, was incorrectly omitted
when that definition was relocated into new point 1071A-4 of the Social
Security Act. That paragraph, importantly, had provided that a social security
pension or benefit was included in income, as were comparable
Commonwealth and other payments of an income support nature.
Accordingly, item 47 reinstates this portion of the definition of income for the
purpose of the health care card income test.
Furthermore, item 48 includes in the definition of income for the purpose of
the health care card income test the new Defence Force Income Support
Allowance (DFISA), introduced into Part VIIAB of the Veterans' Entitlements
Act in response to the Clarke Review. DFISA is paid to customers or their
partners who receive a veterans' affairs adjusted disability pension and who
have a social security pension or social security benefit that is reduced
(including to nil) by the inclusion of the adjusted disability pension in the
income test assessment. Therefore, the new allowance is of the same
income support nature as the primary social security pension or benefit and
should be treated similarly under the health care card income test.
Similarly, the same item includes the veterans' affairs income support
supplement (ISS) in the definition of income under the health care card
income test. ISS is an income and asset-tested addition to a veterans' affairs
war widow's or widower's pension and is generally treated in the same way
under the social security law as a service pension, which already comes
within that definition of income.
Correct cross-references to certain taxation and income reduction provisions
Sections 1072 and 1075 of the Social Security Act provide some general rules
about the income test. This measure corrects some internal references in
those sections.
18
Section 1072 states that a person's `ordinary income' means the gross
ordinary income without any reduction other than under Division 2 or 3 of
Part 3.10. This reference to Division 2 or 3 results from an incorrect
amendment made by the Family and Community Services Legislation
(Simplification and Other Measures) Act 2001. The previous reference was to
Division 1A (dealing with the treatment of ordinary income from a business)
and item 49 restores this reference to ensure the correct effect for
section 1072. Divisions 2 and 3 have no bearing at all on income reduction.
Section 1075 permits certain amounts related to a business carried on by a
person to reduce the person's ordinary income from the business. In
particular, depreciation that is an allowable deduction for the purposes of
Division 42 of the Income Tax Assessment Act 1997 (ITAA 1997) may cause
such a reduction (paragraph 1075(1)(b)). However, as part of changes made
by the Simplified Tax System, Division 42 was repealed and subsumed within
a new Division 40, and paragraph 1075(1)(ba) inserted to pick up the new
reference. New Division 40 is broader than old Division 42, so there has been
a risk that amounts may be excluded from income that were never intended to
be.
Item 51 amends the taxation law reference in section 1075 to preserve the
same effect as was previously achieved. It does this by repealing existing
paragraphs 1075(1)(b) and (ba) and substituting new paragraphs. The
operative difference is that income will now, correctly, exclude only amounts
that relate to the business in question and that can be deducted under any
provision of new Division 40 that corresponds to a provision of the previous
Division 42. An example of the amounts that will now no longer be (and were
never intended to be) excluded from income is the range of intangible assets
described in subsection 40-30(2) of the ITAA 1997. However, the new
formulation also ensures that any other unintended income exclusions will not
flow for social security purposes from new Division 40.
Items 74, 78 and 79 make comparable amendments to similar references to
old Division 42 in sections 1185K, 1208B and 1209C.
Minor corrections to working credit legislation
The income test concession known as the working credit was introduced into
the social security law by Schedule 6 to the Family and Community Services
Legislation Amendment (Australians Working Together and other 2001
Budget Measures) Act 2003. Extensive rules were provided to allow
customers to accrue income test credits while not working and use them to
offset later earnings. Three minor drafting errors have been identified - two
superfluous words and a passage of three missing words. Rectifying these
technical errors will bring the provisions concerned (Step 3 of the method
statement in section 1073F of the Social Security Act and paragraph 99(2)(g)
and subparagraph 99(3)(c)(i) of the Social Security Administration Act) fully
into line with comparable working credit provisions, notably section 93 of the
Social Security Administration Act.
19
Item 50 of this Schedule and items 9 and 10 of Schedule 4 make these
technical corrections.
Overseas payments - exchange rate lead time and currency exchange
Exchange rate lead time
There is currently provision for Centrelink to convert into Australian currency
any income received by customers in foreign currency, at the rate applicable
for the month in which the Australian social security payday falls. Item 52
amends the currency conversion provision of the Social Security Act
(section 1100) so that the exchange rate applicable five business days before
the calculation day will be used in the conversion, instead of the rate
applicable 15 days before that day, as presently provided. This amendment
will ensure even more accurate payments and is achievable because of
Centrelink system improvements.
Currency exchange
Despite the usual conversion rule described above for amounts received by
customers in foreign currency, some countries pay their pensions to
customers having already converted the payments into Australian currency.
This conversion is done using an exchange rate that is usually very similar to
the rate that Centrelink would have used to determine the Australian dollar
value of the overseas payment. For equity and efficiency reasons, this
measure extends the current conversion provision so that it applies to all
payments originally denominated in a foreign currency, whether actually
received in foreign or Australian currency. This is achieved through a new
section 1100A, inserted by item 53.
Consequential amendments for gifting legislation
The social security assets test exempts certain assets (such as a customer's
principal residence or an assets test-exempt income stream). However, these
assets are treated as deprived assets if they are given away, and their value
at the time of the gift continues to be counted for a period.
As part of achieving this, the provision that exempts certain assets from the
assets test (section 1118 of the Social Security Act) stipulates that the
exemption does not apply for the purposes of the provisions that deal with the
deprivation. However, the list of deprivation provisions in section 1118 has
become incomplete following broad changes made to the deprivation
provisions by the Social Security and Veterans' Entitlements Legislation
Amendment (Disposal of Assets - Integrity of Means Testing) Act 2002, which
omitted to make the necessary consequential amendments to section 1118.
The omission threatens the correct application of the deprivation provisions.
Accordingly, item 54 amends section 1118 so that it stipulates that the assets
exemption does not apply in relation to the full range of deprivation provisions
now present in the legislation.
20
Disposal of assets - repeal inappropriate provisions
The Social Security Act contains various provisions relating to the disposal of
assets, for the purposes of the assets test.
Before amendments made by the Family and Community Services Legislation
Amendment Act 2000 (the amending Act), subsections 1124A(2), 1125(2),
1125A(2) and 1126(2) applied to disposals of assets before 1 March 1991.
As these provisions operate to include deprived assets in a person's assets
value only for five years from the date of the disposal, these subsections were
entirely redundant. However, rather than repeal the subsections as intended,
the amending Act merely omitted the reference in each subsection to the
1991 date.
As a result, the subsections have been inadvertently reactivated for disposals
after that 1991 date. As a result, the value of deprived assets should, on a
technical reading of the provisions, be reduced by 10% each year, whereas
the correct treatment (under neighbouring provisions) is for the undiscounted
value to be counted for five years from the disposal.
Accordingly, items 55 to 62 complete the repeal of the subsections intended
in 2000.
Clarify that carer allowance not payable during imprisonment
Section 1158 of the Social Security Act ensures that a social security pension
or benefit, parenting payment, mobility allowance or pensioner education
supplement is not payable to a person who is in gaol or undergoing
psychiatric confinement because he or she has been charged with an offence.
The non-means tested carer allowance does not fall within this range of
payments (although, notably, the means-tested carer payment does).
Therefore, carer allowance remains payable during imprisonment under
section 1158. Furthermore, the cessation of care that would generally result
from the carer being imprisoned would not necessarily preclude payment
because section 957 allows payment to continue if the cessation is temporary
and does not exceed a certain period (generally 63 days) in any calendar
year.
There is no policy reason why carer allowance should continue to be payable
in this way when most other payments, including the comparable carer
payment, are not. Therefore, item 72 includes carer allowance within the list
of payments precluded under section 1158.
21
Prisoners and concession cards
Long-standing policy has been to prevent prisoners, who remain the
responsibility of state/territory prison systems, and people undergoing
psychiatric confinement because of having been charged with an offence,
from obtaining concession cards for their personal use. This policy is based
on the fact that state/territory governments are responsible for meeting all
costs associated with the health and other needs of prisoners. However,
prisoners who care for a child while in gaol may hold a concession card,
applicable to the child alone.
Current legislation already clearly supports this policy in relation to the
automatic issue health care card and pensioner concession card. However,
the legislation is not so clear for the low-income health care card and the
seniors health card, both of which must be claimed.
Item 73 now makes amendments to safeguard the long-standing policy. This
is done by inserting a new section 1159A into Part 3.13 of the Social Security
Act. The new section overrides the existing section 1061ZG (qualification for
a seniors health card) and section 1061ZO (qualification for a claimable,
low-income health care card) to say that people in gaol, or undergoing
psychiatric confinement because of having been charged with an offence are
not qualified for such a card.
The new subsection supplements the existing arrangements in the legislation
(based on section 1158 (payment preclusion while in gaol, etc),
section 1061ZA (pensioner concession card qualification) and section 1061ZK
(automatic issue health care card qualification)) that deny one of those
concession cards to recipients of specified social security payments. People
who currently qualify for an automatic issue health care card under
section 1061ZK other than through receiving a specified social security
payment will not have their qualification affected for the card (eg, certain
people entitled to family tax benefit Part A).
Prepayments and debts
Section 57 of the Social Security Administration Act provides for an amount
that would be paid on a particular day, but cannot reasonably be paid on that
day (for example, because of a bank or public holiday), to be paid on an
earlier day. A complementary provision (section 1223AA of the Social
Security Act) makes this amount a debt so that it may be recovered if need
be.
Historically, prepayments applied only to certain social security benefits, so
section 1223AA is drafted in a way that raises debts in relation to
prepayments only of social security benefits. However, programme changes
in recent years have resulted in prepayments being made in relation to some
payments that are not social security benefits, notably parenting payment
(single) and disability support pension.
22
To reflect these developments, while maintaining the intention of the
prepayment regime, item 82 makes amendments to section 1223AA to
ensure that any social security payment in respect of which a prepayment is
made may trigger the established debt creation provision.
Technical amendment
Item 83 makes a formatting amendment to remove a superfluous `or' at the
end of paragraph 1231(1)(b) of the Social Security Act.
Debt recovery - complete cross-reference
Section 1231 of the Social Security Act provides for certain debts and
overpayments to be recovered by deductions from social security payments.
Among the amounts recoverable in this way are overpayments arising under
an Act or scheme mentioned in subsection 1228(2). The purpose of
section 1228 as a whole is to identify debts and overpayments for the
purposes of recovery under section 1231. However, two categories of
overpayment (student assistance overpayments and certain child support
overpayments) are mentioned in subsections 1228(2A) and (2B) respectively
rather than in subsection (2). Therefore, the recovery mechanism provided in
section 1231 does not apply to these overpayments, as clearly intended by
their coverage by section 1228. Item 84 corrects this by adding reference to
subsections 1228(2A) and (2B) in section 1231.
23
Schedule 4 - Amendment of the Social Security (Administration)
Act 1999
Summary
This Schedule provides for the bill's minor policy and technical measures
insofar as they require amendment to the Social Security Administration Act.
Some of these measures are addressed fully by this Schedule and are
discussed in detail below. However, some of the measures have related
amendments in Schedule 3, which amends the Social Security Act, as
indicated below. Unless otherwise indicated, all amendments commence on
Royal Assent.
Background and explanation of the changes
Omit incorrect cross-reference
Section 14 of the Social Security Administration Act provides an early,
deemed claim rule for a concession card if a person contacts the Department
in relation to a claim for a card. The section is expressed to be subject to
section 18. However, that section is completely unrelated to the subject
matter of section 14, being concerned with a claim for a special employment
advance (that is, a payment and not a concession card).
Therefore, item 1 repeals subsection 14(5), thus omitting the incorrect
reference to section 18.
Crisis payment for special benefit temporary visa holders
A person in severe financial hardship may be qualified for a crisis payment on
release from imprisonment or psychiatric confinement of a certain duration, or
because he or she cannot return home because of an extreme circumstance
such as domestic violence or a natural disaster, if the person is, on the day of
claiming crisis payment, qualified for a social security pension or benefit. The
requirement to be qualified for a social security pension or benefit usually
requires the person to be an Australian resident. However, to be qualified for
special benefit, the person may instead be the holder of a visa determined by
the Minister for that purpose. Those determined are temporary visas in
certain subclasses.
There are also residence requirements attaching to making a claim for a
social security payment (including special benefit and crisis payment). The
usual requirement, again, is for the person to be an Australian resident,
although, for special benefit, the person may instead be the holder of a visa
determined for the purpose. Therefore, the qualification and claim rules for
special benefit are consistent.
24
In the case of a crisis payment claim, the only exception to the Australian
resident requirement is that the person be a special category visa holder.
However, such a visa is not one of those determined for special benefit
qualification. Therefore, a person who is qualified for special benefit on the
basis of holding a visa determined for that purpose, and therefore qualified for
crisis payment, may not actually claim crisis payment.
Items 2 and 5 address this anomaly by inserting into the Social Security
Administration Act a new section 30A to make it clear that a person qualified
for special benefit through holding a visa determined for special benefit
qualification may now claim the crisis payment for which he or she may also
be qualified.
Special benefit - repeal redundant subparagraph and simplify visa reference
Section 30 of the Social Security Administration Act provides the residence
requirements that must be met for a special benefit claim to be made. To
meet the requirements, a person must be in Australia and satisfy one of three
subparagraphs. Subparagraph 30(b)(ii) refers to a person having a `qualifying
residence exemption for special benefit'. This term is defined in
subsections 7(6) and (6AA) of the Social Security Act for many social security
payments and programmes but explicitly not for special benefit. Therefore,
there is no concept under the social security law of a qualifying residence
exemption for special benefit. Therefore, item 3 repeals
subparagraph 30(b)(ii) to avoid confusion.
Subparagraph 30(b)(iii) refers to a person holding a visa determined by the
Minister for the purposes of the subparagraph. This simply replicates the visa
determination provided for special benefit qualification in
subparagraph 729(2)(f)(v) of the Social Security Act. However, it has never
been intended to make a separate determination for the purposes of this claim
provision. Accordingly, item 4 amends subparagraph 30(b)(iii) so that the
visas referred to are those determined for the purposes of
subparagraph 729(2)(f)(v).
Reinstate inappropriately repealed automatic termination provision - carer
payment
The Social Security Administration Act aimed to relocate into a separate Act,
without policy change, those provisions from the Social Security Act that dealt
with machinery, or administrative, matters. Before that change, old
subsection 222(1A) provided for the Secretary to give a notice to a care
receiver, requiring that person to give certain types of information relevant to
the payment of carer payment to the person providing care to the care
receiver. Old section 227 provided for the automatic termination of the carer
payment if the care receiver did not give the information as required.
25
New section 70 of the Social Security Administration Act provided an
equivalent rule to old subsection 222(1A). However, an equivalent of old
section 227 was not reproduced in the Social Security Administration Act.
Therefore, there is no longer the required consequence for failure to comply
with the notice. Item 8 reinstates the automatic termination provision in the
same terms as previously provided.
Items 6 and 7 of this Schedule make technical amendments to section 70 of
the Social Security Administration Act to reflect the relocation of old
subsection 222(1A). Similarly, items 20 and 81 of Schedule 3 make further
technical amendments.
Minor corrections to working credit legislation
The income test concession known as the working credit was introduced into
the social security law by Schedule 6 to the Family and Community Services
Legislation Amendment (Australians Working Together and other 2001
Budget Measures) Act 2003. Extensive rules were provided to allow
customers to accrue income test credits while not working and use them to
offset later earnings. Three minor drafting errors have been identified - two
superfluous words and a passage of three missing words. Rectifying these
technical errors will bring the provisions concerned (Step 3 of the method
statement in section 1073F of the Social Security Act and paragraph 99(2)(g)
and subparagraph 99(3)(c)(i) of the Social Security Administration Act) fully
into line with comparable working credit provisions, notably section 93 of the
Social Security Act.
Items 9 and 10 of this Schedule and item 50 of Schedule 3 make these
technical corrections.
Financial hardship farmer - repeal redundant provisions and references
Definitions relating to a `financial hardship farmer' appeared in the social
security law until their repeal in 2000, although they had been redundant since
1993, when new arrangements for farm household support were introduced.
However, the 2000 repeal failed to repeal or amend provisions (other than the
definitions themselves) that were relevant to the definitions, and that are now
redundant.
Items 11 and 12 now make these technical corrections. Similarly, items 6, 8,
9, 10, 27 and 63 to 71 of Schedule 3 make the relevant corrections in the
Social Security Act.
26
Schedule 5 - Amendment of the Social Security (International
Agreements) Act 1999
Summary
This Schedule provides for the bill's minor policy and technical measures
insofar as they require amendment to the Social Security (International
Agreements) Act 1999. These measures are discussed in detail below. Both
amendments commence on Royal Assent.
Background and explanation of the changes
International agreement portability rate - correct age of dependent child
The Social Security (International Agreements) Act 1999 provides, in part, for
additional child amounts that may be applicable as part of a person's
international agreement portability rate. The relevant provision distinguishes
between children aged below 13, and those aged 13 or more but below 15,
and provides separate amounts. The reference to age 15 is incorrect, as it
does not reflect the historical age used to separate groups of children for rate
purposes and reflected in other portfolio provisions (such as section 5 and
point 1067G-F23 of the Social Security Act). Accordingly, item 1 replaces the
age 15 reference with one to age 16, in line with equivalent references.
Insert signpost to indexation of additional child amounts
Section 14A of the Social Security (International Agreements) Act 1999
defines the term `additional child amounts' for the purposes of working out a
person's international portability rate. These amounts are indexed in line with
CPI movements under the indexation provisions in the Social Security Act.
Because the indexation occurs through the operation of a separate Act,
item 2 inserts a note to the substantive definition that signposts the indexation
arrangement.
27
Schedule 6 - Amendment of other Acts
Summary
This Schedule provides for the bill's minor policy and technical measures
insofar as they require amendment to two portfolio amending Acts, the
Disability Services Act 1986 and the Veterans' Entitlements Act. These
measures are discussed in detail below.
Background and explanation of the changes
Make technical amendments to two portfolio amending Acts
Item 1 amends an item of the A New Tax System (Compensation Measures
Legislation Amendment) Act 1999 to correct a misdescription of the provision
intended to be amended by that item, so that it operates as intended by
Parliament. The item should have been expressed to amend `method
statement 2'.
Item 3 similarly amends an item of the Family and Community Services and
Veterans' Affairs Legislation Amendment (2004 Election Commitments)
Act 2004 to ensure that a new provision is inserted into the Veterans'
Entitlements Act in the correct location. The insertion should have occurred
`before paragraph 5H(8)(h)'.
Both of these technical corrections to the amending Acts commence with
retrospective effect (immediately after the commencement of the erroneous
items) to ensure the amendments operate as intended. This retrospective
effect does not produce any adverse effects for customers.
Technical amendment
Item 2 makes a technical correction to section 9 of the Disability Services
Act 1986. There is currently a reference in that section to an approval of a
class of services for the purposes of paragraph (d) of the definition of `eligible
service' in section 7 of that Act. However, the paragraph of that definition that
should be referred to in this context is paragraph (h).
This technical correction commences with retrospective effect (immediately
after the incorrect version of section 9 commenced). This retrospective effect
does not produce any adverse effects for customers.
28
Repeal redundant housing legislation
There are seven Acts relating to housing that are no longer operational and
are being repealed by Schedule 7 to this bill. One of these is the Homeless
Persons Assistance Act 1974 (the HPA Act). The HPA Act is currently
referred to in paragraph 5H(8)(k) of the Veterans' Entitlements Act, where
specified assistance given to a person under the HPA Act is excluded from
the person's income for veterans' entitlements purposes.
Item 3 repeals paragraph 5H(8)(k) as a consequence of the repeal of the
HPA Act and commences on Royal Assent.
29
Schedule 7 - Repeal of redundant housing Acts
Summary
This Schedule provides for one minor policy measure, repealing seven
redundant Acts relating to housing. The repeals commence on Royal Assent.
Background and explanation of the changes
Repeal redundant housing legislation
The Families, Community Services and Indigenous Affairs portfolio has the
administration of seven Acts relating to housing that are no longer operational
and are being repealed:
· Home Deposit Assistance Act 1982;
· Homeless Persons Assistance Act 1974;
· Home Savings Grant Act 1964;
· Home Savings Grant Act 1976;
· States Grants (Housing) Act 1971;
· Supported Accommodation Assistance Act 1985; and
· Supported Accommodation Assistance Act 1989.
None of these Acts needs to remain in effect for prospective matters.
However, any right, privilege, obligation or liability already acquired, accrued
or incurred under any of the Acts will be preserved in the usual way (relying
on section 8 of the Acts Interpretation Act 1901) so that, for example, any debt
owed or claim undetermined will remain recoverable or capable of being
determined.
The repeal of the seven Acts is made by item 1. Consequential amendments
are made by item 3 of Schedule 3 and item 3 of Schedule 6 to remove
certain references to one of the Acts in current legislation. Remaining
references in current legislation to the repealed Acts should remain so the
relevant current legislation operates correctly in historical contexts.
30
Schedule 8 - Technical amendments relating to legislative instruments
Summary
This Schedule provides for numerous technical amendments to social
security, family assistance and related legislation, as a consequence of the
commencement of the Legislative Instruments Act. The amendments
commence on Royal Assent.
Background and explanation of the changes
Make Legislative Instrument technical amendments
The Legislative Instruments Act has come into force, providing new concepts
and arrangements for most subordinate legislation, that is, for instruments of a
legislative character. Notably, the Acts Interpretation Act 1901 has been
amended to remove the concept of a disallowable instrument, with the
replacement concept of a legislative instrument being provided by the
Legislative Instruments Act. There are new rules for the commencement of
legislative instruments and entry of instruments on the Federal Register of
Legislative Instruments instead of being notified by Gazette.
This Schedule now makes the legislative instrument technical amendments
that are necessary to reflect the new arrangements for the following Acts:
· Family Assistance Act;
· Family Assistance Administration Act;
· Child Care Act 1972;
· Data-matching Program (Assistance and Tax) Act 1990;
· Disability Services Act 1986;
· Family Assistance Legislation Amendment (More Help for Families -
One-off Payments) Act 2004;
· Housing Assistance Act 1966;
· Social Security Act;
· Social Security Administration Act;
· Social Security (International Agreements) Act 1999.
Amendments are included to:
· refer to a legislative instrument-making power being exercised `by
legislative instrument' rather than `by disallowable instrument' or `in
writing';
· refer to registration on the Federal Register of Legislative Instruments
rather than Gazettal;
· repeal, rather than amend, legislative instrument-making powers that
are now spent (that is, they have no further application); and
· repeal provisions that are redundant now that the Legislative
Instruments Act contains all relevant rules on legislative instruments.
31
Items 1 to 39 amend the Family Assistance Act.
Items 40 to 75 amend the Family Assistance Administration Act.
Items 76 to 81 amend the Child Care Act 1972.
Items 82 to 86 amend the Data-matching Program (Assistance and Tax)
Act 1990.
Items 87 to 93 amend the Disability Services Act 1986.
Items 94 and 95 amend the Family Assistance Legislation Amendment (More
Help for Families - One-off Payments) Act 2004.
Items 96 to 99 amend the Housing Assistance Act 1966 (Housing Assistance
Act). Item 97 includes a new rule to say explicitly that section 42 of the
Legislative Instruments Act (dealing with disallowance of instruments) applies
to a legislative instrument provided by section 5 of the Housing Assistance
Act. Section 5 relates to the form of an agreement under the Housing
Assistance Act and an instrument made under it before the commencement of
the Legislative Instruments was a disallowable instrument. Without the
specific statement that section 42 applies, there would be a risk that a
section 5 instrument would fall within the exemption, provided by
paragraph 44(1)(a) of the Legislative Instruments Act, from the usual
disallowance requirement. It is intended that a section 5 instrument continue
to be disallowable to give effect to Parliament's original intention.
Items 100 to 203 amend the Social Security Act.
Items 204 to 224 amend the Social Security Administration Act.
Items 225 and 226 amend the Social Security (International Agreements)
Act 1999.
32
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