Commonwealth of Australia Explanatory Memoranda

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SOCIAL SECURITY (ADMINISTRATION) BILL 1999

1998-99

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

SOCIAL SECURITY (ADMINISTRATION) BILL 1999


SOCIAL SECURITY (INTERNATIONAL AGREEMENTS) BILL 1999


SOCIAL SECURITY (ADMINISTRATION
AND INTERNATIONAL AGREEMENTS)
(CONSEQUENTIAL AMENDMENTS) BILL 1999

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Family and Community Services,
Senator the Hon Jocelyn Newman)

ISBN: 0642 403449

SOCIAL SECURITY (ADMINISTRATION) BILL 1999


SOCIAL SECURITY (INTERNATIONAL AGREEMENTS) BILL 1999

SOCIAL SECURITY (ADMINISTRATION
AND INTERNATIONAL AGREEMENTS)
(CONSEQUENTIAL AMENDMENTS) BILL 1999

OUTLINE AND FINANCIAL IMPACT STATEMENT

Social Security (Administration) Bill 1999

The Social Security (Administration) Bill 1999 forms a part of the measures being undertaken by the Government to give effect to the Government’s commitment to implement a simpler and more coherent social security system that more effectively meets its objectives of adequacy, equity, incentives for self provision, customer service and administrative and financial sustainability.

The Social Security (Administration) Bill 1999 consolidates all the machinery and most of the administrative provisions relating to social security. In doing so, it effects a major reduction in the length and complexity of the social security laws. For example, under this Bill there will only be one section dealing with claims rather than one claim section for each payment type as well as other claims for other benefits such as concession cards. This Bill introduces the new concept of the social security law.

The social security law will comprise:

• the Social Security (Administration) Act 1999;

• what remains of the Social Security Act 1991 after the consequential amendments are made; and

• the Social Security (International Agreements) Act 1999.

Social Security (International Agreements) Bill 1999:

The Social Security (International Agreements) Bill 1999 provides for the consolidation of existing social security international agreements into a separate Act.

The Bill also provides for new social security international agreements to be added to the Social Security (International Agreements) Act (once enacted) by way of regulation and for existing social security international agreements to be varied by way of regulation.

Social Security (Administration and International Agreements) (Consequential Amendments) Bill 1999

The Social Security (Administration and International Agreements) (Consequential Amendments) Bill 1999:

• amends and repeals provisions of the Social Security Act 1991 consequential upon the enactment of the Social Security (Administration) Bill 1999 and the Social Security (International Agreements) Bill 1999; and

• provides for the repeal of Part 9 of the Social Security (Administration) Act 1999 (when enacted) as a consequence of the commencement of provision of that Act which contains a single rounding provision that applies to all social security payments.

Date of effect:

Social Security (Administration) Bill 1999

• 20 March 2000 for most of the Bill. However, some provisions are to commence on 1 July 2000. Those provisions deal with certain rounding off provisions (Part 9).

Social Security (International Agreements) Bill 1999

• 20 March 2000.

Social Security (Administration and International Agreements) (Consequential Amendments) Bill 1999

• 20 March 2000 for Schedules 1 and 2 of the Bill. However, Schedule 3, dealing with certain rounding off provisions, commences on 1 July 2000.

Financial Impact:

(cost)

1999-2000 $1.005m

2000-2001 $2.692m

2001-2002 $2.906m

These costs will be met within existing departmental resources.

SOCIAL SECURITY (ADMINISTRATION) BILL 1999


NOTES ON CLAUSES


PART 1—PRELIMINARY

Clause 1 Short title

This clause specifies that the short title of the Bill, when enacted, will be the Social Security (Administration) Act 1999 (the Social Security (Administration) Act).


Clause 2 Commencement

This clause specifies that the Bill, except for Division 2 of Part 9, dealing with certain rounding off provisions, is to commence on 20 March 2000.

The rounding off provisions are to commence on 1 July 2000.


Clause 3 Interpretation

This clause contains principal interpretative provisions for the Social Security (Administration) Act and establishes the concept of the social security law. The Social Security (Administration) Act will use the definitions contained in the Social Security Act 1991 (the 1991 Act).


Clause 4 Social security law

This clause provides that the Social Security (Administration) Act 1999 forms part of the social security law.


Clause 5 Manner of giving notice

This clause specifies that if a provision of the social security law (that is, the Social Security (Administration) Act and the 1991 Act) requires that a written notice be given to a person, this requirement is met if the notice is given in a manner approved by the Secretary.

However, this does not prevent a notice being given in accordance with section 28A of the Acts Interpretation Act 1901.


Clause 6 Effect of certain determinations

This clause specifies that a determination can take effect on an earlier day than the day on which the determination is made if the social security law provides that it can.

PART 2—GENERAL ADMINISTRATION OF SOCIAL SECURITY LAW

Clause 7 General administration of social security law

This clause provides that the Secretary, subject to any direction of the Minister, is to have the general administration of the social security law.


Clause 8 Principles of administration

This clause sets out those factors to which the Secretary must have regard in administering the social security law.


Clause 9 Government policy statements

This clause provides that the Minister may prepare a written statement of the Commonwealth Government’s policy in relation to the administration of the social security law and may give a copy of the statement to:

• the Secretary; and

• the Executive Director of the Social Security Appeals Tribunal (the SSAT) (formerly, the National Convener of the SSAT).

If the Minister gives a copy of the statement to the Secretary or the Executive Director of the SSAT, a copy must also be laid before each House of the Parliament within 15 sitting days after the copy has been given.

In exercising powers under the social security law, subclauses 9(3) and (4) provide, respectively, that officers must have regard to any policy statement that has been given to the Secretary, and that the Executive Director of the SSAT and the SSAT must have regard to any policy statement that has been given to the Executive Director.


Clause 10 Agreement on administrative arrangements

This clause provides for the making of various administrative arrangements between the Secretary and the Executive Director of the SSAT, and the Secretary and the heads of other Commonwealth Government departments and agencies, that will further the objectives of various parts of the 1991 Act.

PART 3—PROVISION OF BENEFITS

Division 1—Claim for social security payment or concession card

Subdivision A—Need for claim

Clause 11 General rule

This clause sets out the general rule in relation to claims for a social security payment or concession card. The general rule is subject to the exceptions in Subdivision B.

Subdivision B—Cases where claim not necessary

Clause 12 Certain transfers between payments

The general rule is that a person must make a claim for a particular income support payment.

This clause provides an exception to that rule.

In certain circumstances where the Secretary has determined that a person is to be transferred to another income support payment (the other payment), the person will be taken to have made a claim for the other payment on the day that the person became qualified for the other payment.


Clause 13 Deemed claim - person contacting Department about a claim for a social security payment

This clause provides that in specified circumstances, a person will be taken to have made their claim for a social security payment on the day they contact the Department, even though this might be before they actually lodge their claim for that payment.

The means by which a person may contact the Department includes contact by way of post, telephone, facsimile, computer or other electronic means.


Clause 14 Deemed claim - person contacting Department about a claim for a concession card

This clause provides exactly the same rules as those applying to a deemed claim for a social security payment (see clause 13), but in relation to a claim for a concession card.


Clause 15 Deemed claim - incorrect claim

Sometimes, a person will make a claim for an incorrect social security payment. The person then makes a claim for another social security payment (the other payment) for which the person is qualified.

This clause provides that if this occurs, the person is taken to have made a claim for the other payment on the day the person made the incorrect claim.

Subclauses (2), (3) and (4) set out what an “incorrect claim” means for the purposes of this clause.

Subdivision C—Manner of making a claim

Clause 16 How to make a claim

Subclause 16(1) provides that a claim for a social security payment or concession card is made either by lodging a written claim for the payment or card or in accordance with subclause 16(7).

A written claim for a payment or card must be in accordance with a form approved by the Secretary (subclause 16(2)).

Subclause 16(3) allows for more than one claim (for more than one social security payment) to be made by a person in a combined claim form provided that the Secretary approves the combined claim form. An example of where this might occur is in the case of family allowance and maternity allowance.

Subclause 16(4) specifies to whom, how and where written claims must be lodged.

The place or person approved for lodging claims must be in Australia (subclause 16(5)), although this requirement may be relaxed if it is for the purposes of lodgment of claims made under a scheduled international social security agreement (subclause 16(6)).

Subclause 16(7) provides that a claim may be made in a manner approved by the Secretary. The Secretary’s power under subclause 16(7) is not limited by any other provision of clause 16.


Clause 17 Special requirements regarding claims for pension bonus

This clause outlines special requirements regarding claims for pension bonus. Subclause 17(1) provides that a claim must both be attached to a claim for age pension and lodged with that claim or made under an invitation (see subclause 17(3)).

Subclause 17(2) provides that a claim can be made even though it may not be certain that the person will start to receive an age pension at or after the time the claim is lodged. In this case, the claim has effect as a claim that is contingent on the person receiving an age pension.

Subclause 17(3) allows the Secretary to invite a person to make a claim for a pension bonus within such period as is specified in the written notice and at such place as is specified if all of the following requirements are met:

• a claim for age pension has been made;

• the claim for age pension is in accordance with a form that does not require the person to disclose whether the person is registered as a member of the pension bonus scheme under the Social Security Act or Part IIIAB of the Veterans’ Entitlements Act;

• the person is registered as a member of the pension bonus scheme;

• a claim for pension bonus is not attached to the claim for age pension.


Clause 18 Additional provisions regarding claim for special employment advance

This clause, which is subject to clause 13, outlines the requirements for claiming a special employment advance.

The amount of the special employment advance sought must be specified in the claim (subclause 18(1)).

Claims based on the effect of unreceived income on a person’s special, employment advance qualifying entitlement and which are lodged before the first day for which special employment advance is not payable or is reduced as a result of the person or the person’s partner, having earned the income, are taken to have been made on that day (subclause 18(2)). However, this is subject to subclause 18(3).

The operation of subclause 18(3) will result in certain circumstances in the Secretary taking a claim for a special employment advance to have been made earlier than would be the case under subclause 18(2).

Subclause 18(4) sets out the requirements for a claim based on the need for financial assistance from the Commonwealth to take up offered employment.

Subdivision D—Time limits for claims for maternity allowance and maternity immunisation allowance

Clause 19 Time limits

This clause establishes time limits to claim maternity allowance and maternity immunisation allowance.

Claims for maternity allowance must be made within 26 weeks after the birth of the child to whom the claim relates (subclause 19(1)).

Claims for maternity immunisation allowance must be made before the child to whom the claim relates has reached the age of 2 years or would have reached that age if the child had not died (subclause 19(2)).

Subclause 15(3) specifies that if a claim is not made within the specified time, the claim is taken to have not been made.

Subdivision E—Time limits for claims for pension bonus

Clauses 20 to 26

Clause 20 specifies that an expression used in Subdivision D has the same meaning as that expression used in Part 2.2A of the 1991 Act.

Clause 21 provides that a claim for pension bonus must be made within the lodgment period fixed by Subdivision E.

The lodgment periods for claims for pension bonus, set out in Subdivision E, are dependent on whether:

• the person’s last bonus period is a full-year period (clause 22); or

• the person’s last bonus period is a part-year period (clause 23); or

• the person claiming the pension bonus is an exempt partnered person (clause 24). (A person is an exempt partnered person for the purposes of clause 24 if the person is a member of a couple and the person’s partner is an accruing or non-accruing member of the pension bonus scheme under the 1991 Act or under Part IIIAB of the Veterans’ Entitlements Act (subclause 24(2))).

• the person’s membership of the pension bonus scheme has become non-accruing (clause 25);

• the person has a post-75 work period (clause 26).

Subdivision F—Lapsing of certain claims

Clause 27 Lapsing of certain claims for maternity immunisation allowance

Claims for maternity immunisation allowance are treated as not having been made under subclause 27(1), if claims for maternity allowance and maternity immunisation allowance are made at the same time in respect of the same child, the child is not stillborn, maternity allowance is paid and the person ceases to be qualified for family allowance before the claim for maternity immunisation allowance has been determined.

However, subclause 27(2) specifies that nothing in subclause 27(1) prevents the person or another person from making another claim for maternity immunisation allowance in respect of that same child.

Subdivision G—Age requirements for certain claims

Clause 28 Claims for disability support pension

A person must be less than age pension age on the day that he or she lodges a claim for disability support pension.

Subdivision H—Residence requirements for claimants

Clause 29 General rule

This clause establishes the residential requirements for a person to claim a social security payment or concession.

The person must be:

• an Australian resident (paragraph 29(1)(a)); and

• in Australia (paragraph 29(1)(b)).

Furthermore, if the claim is made when the person is not an Australian resident or is not in Australia, it is taken to have not been made (subclause 29(2)).

This clause is subject to clauses 30, 31 and 32.


Clause 30 Residence requirements for claimants for special benefit

This clause establishes the residential requirements for a person to claim special benefit. The person must be in Australia and satisfy at least one of the following:

• be an Australian resident;

• have a qualifying residence exemption;

• hold a visa determined by the Minister that applies for this purpose.


Clause 31 Exclusion of certain claims from requirements of section 29

Subclause 31 specifies that the requirement set out in paragraph 29(1)(b) that a claim may only be made by a person who is in Australia does not apply to claims for certain payment types. Those payment types are:

• carer allowance;

• double orphan pension;

• family allowance;

• family tax payment;

• maternity allowance;

• maternity immunisation allowance;

• mobility allowance.

Subclause 31(2) provides that clause 29 does not apply to certain parenting payment claims.

Subclause 31(3) provides that the requirements of clause 29 do not apply to claims made by an approved care organisation.

Clause 32 Claims for sickness allowance

The rules set out in this clause only apply to claims for sickness allowance.

The general rule set out in clause 29 provides that a person has to be in Australia to make a claim.

Subclause 32(2) provides that for sickness allowance claims, a person will be “in Australia” for the first 13 weeks of a temporary absence if that person’s temporary absence is to enable the person to seek medical treatment of a kind not available in Australia.

Subdivision I—Withdrawal of claim

Clause 33 Right to withdraw

This clause specifies a claimant’s right to withdraw a claim that has not been determined. If a claim is withdrawn, it is taken to have not been made.

Clause 34 Manner of withdrawal

A claim may be withdrawn orally, in writing or in any other manner approved by the Secretary (subclause 34(1)).

If a claim for age pension and pension bonus is made and the claim for age pension is withdrawn then the claim for pension bonus is taken to have been withdrawn (subclause 34(2)). If a claim for age pension and pension bonus is made and the claim for age pension is rejected because of the operation of Division 2 of Part 3.12 (disposal of assets) or Part 3.14 (compensation recovery) of the 1991 Act then the claim for pension bonus is taken to have been withdrawn (subclause 34(3)).

Division 2—Determination of claim

Clause 35 Obligation of Secretary to determine claim

Subclause 35(1) provides that the Secretary’s must grant or reject a claim for social security payment or a concession card. Subclause 35(2) specifies that the Secretary must not determine a claim for pension bonus until the claim for age pension has been determined if a claim for both age pension and pension bonus has been made.

Clause 36 Grant of claim

The general rule, set out in subclause 36(1) is that if the Secretary is satisfied that a person is qualified for a social security payment and it is payable, the Secretary must make a determination granting the claim for social security payment. This subclause is subject to clause 40. Clause 40 deals with rejection of claims for failure to obtain a comparable foreign payment.

Subclauses 36(2), (3) and (4) provide that the Secretary must determine that a person’s claim for newstart allowance, youth allowance, widow allowance, mature age allowance or parenting payment is to be granted if the Secretary is satisfied about a number of specified requirements.

If the Secretary is satisfied that a claimant is qualified for a concession card then he must make a determination granting the claim for the card (subclause 36(5).

Clause 37 Refusal of claim for special employment advance

This clauses provides that the Secretary must refuse a person’s claim for a special employment advance if the person’s claim is based on the effect of unreceived income on the person’s special employment advance qualifying entitlement and the Secretary is satisfied that the income will be received within 2 days after the claim is made.

However, if the Secretary may waive the application of this rule if the Secretary considers that the person’s financial circumstances warrant it.


Clause 38 Deemed refusal of claim

Subclause 38(1) provides that a claim is determined to have been rejected if the Secretary does not, within a period of 13 weeks after the day on which the claim was lodged, make a determination regarding that claim.

The result will be that the lack of a determination after 13 weeks operates just as if the person’s claim had been rejected. A person will then be able to seek a review of that “decision” as per the process set out in Part 4 of the Administration Act.

Under subclause 38(2), if a claim for a social security benefit is made and the person is already receiving the benefit then the claim is taken to have been made, for the purposes of subclause 38(1), on the day before the first day of the period for which the benefit is being claimed. This subclause applies to newstart allowance and youth allowance (subclause 38(3)).

If a person (the first person) or another person is asked for information about the first person’s claim, the period that begins on the day on which the information is sought and ends on the day on which the information is supplied, is not counted for the purpose of subclause 38(1) (subclause 38(4)), that is, the “clock stops”.


Clause 39 Rejection of claim for failure to obtain foreign payment

This clause gives the Secretary a power to reject a person's social security payment claim if the Secretary has issued a notice under subclause 65(1) to the person requesting that the person take action to obtain a comparable foreign payment within a specified period and the Secretary is not satisfied that the person has taken reasonable action to obtain that payment at the highest rate applicable to the person.

Similarly, this clause also gives the Secretary a power to reject a person's social security payment claim if the Secretary has issued a notice under subclause 65(2) to the person requesting that the person’s partner take action to obtain a comparable foreign payment within a specified period and the Secretary is not satisfied that the person’s partner has taken reasonable action to obtain that payment at the highest rate applicable to the partner.

Division 3—Commencement of social security payment

Clause 40 Commencement

This clause specifies when a social security payment becomes payable.


Clause 41 Start day

This clause states that the start day for a social security payment is worked out in accordance with Schedule 2.

Division 4—Payment of social security payment

Clause 42 Payment of instalments

This clause specifies form and times of payment of a social security periodic payment. It provides that:

• it is to be paid in arrears and by instalments that do not exceed 14 days (subclause 42(1));

• it is to be paid at times determined by the Secretary (subclause 42(2));

• the amount to be paid is the total amount, calculated on a daily basis, payable for the days in the period (subclause 42(3));

• each period determined under subclause 42(1) is an instalment period.

• if an amount of pharmaceutical allowance is added to a person’s maximum rate in working out the person’s social security payment instalment and otherwise, the instalment amount would be less than the person’s fortnightly rate, the person’s instalment is to be increased to the person’s fortnightly pharmaceutical allowance rate (subclause 42(4));

• for these purposes, a person’s fortnightly pharmaceutical allowance rate is calculated by dividing the added amount by 26 (subclause 42(5)).

Clause 43 Payment of instalments to person or nominee

Subclause 43(1) provides that subject to subclause 43(3) and clause 44, instalments of a person’s social security periodic payment is to be paid to that person in arrears and by instalments. A person’s instalment period is determined by the Secretary but may not exceed 14 days.

Subclause 43(3) provides that the Secretary may, in writing, direct that the whole or part of the instalments of a person’s social security periodic payment or special employment advance are to be paid to someone else on behalf of the person.

Subclause 43(4) provides that if the Secretary gives a direction under subclause 43(2), the instalments are to be paid in accordance with the direction.

Subclause 43(5) provides that subclauses 43(3) and (4) don’t apply in relation to youth allowance instalments to which clause 44 applies.

Subclause 43(2) provides that subject to subclause 43(3), if a person’s special employment advance is to be paid by instalments, the instalments are to be paid to the person.

Clause 44 Payment of youth allowance – person under 18 and not independent

Subclause 44(1) provides special rules for payment of instalments of a person’s youth allowance where the person is under 18 and not independent.

Subclause 44(1) provides that the instalments are to be paid to the person’s living parent (if only one) or to the parent nominated by the person (if more than one living parent).

However, these rules are subject to exception. The Secretary may direct that the whole or part of a person’s youth allowance instalments are to be paid to the person or a person other than the person’s parent, on behalf of the person (subclause 44(2)). If such a determination is made, the instalments are to be paid accordingly (subclause 44(3)).


Clause 45 Payment of special employment advance

This clause provides in subclause 45(1) that, generally, a person’s special employment advance is to be paid as a lump sum. However, subclause 45(2) provides that the advance may be paid by instalments if the Secretary considers that it is appropriate to do so.


Clause 46 Payment of lump sum benefits

This clause provides that a payment of a lump sum benefit (as defined by the clause) may be made in any manner that the Secretary determines.


Clause 47 Payment of telephone allowance

This clause provides how and when telephone allowance is to be paid.


Clause 48 Timing of payment of fares allowance

If a person makes a journey and then claims fares allowance, it is paid as a reimbursement. Otherwise, fares allowance is to be paid before a journey is made.


Clause 49 To whom fares allowance is to be paid

This clause sets out to whom fares allowance is to be paid. This depends on what type of payment the person is or was receiving and whether the journey has taken place.

This clause is subject to clause 57.


Clause 50 Advance in case of severe financial hardship

Subclause 50(1) allows the Secretary to make an advance of a person’s instalment of social security pension or benefit, where that instalment is the person’s first instalment, or the person’s first instalment after cancellation or suspension, if the Secretary is satisfied that the person would suffer immediate financial hardship if the person had to wait until the end of a specified period.

The amount of the advance may not exceed the amount that the Secretary considers would have been the amount payable to the person for the first 14 days on which the benefit or pension is payable (subclause 50(2)).

Any amount paid under subclause 50(1) is taken to be an advance payment of the first instalment payable to the person. after the person’s claim has been granted or their social security pension or benefit has been resumed (subclause 50(3)).


Clause 51 Payment of certain amounts outside Australia

This clause allows instalments of specific social security payments to be paid to social security recipients outside Australia at such times determined by the Secretary.


Clause 52 Payment of instalments where pension received under other legislation

This clause, in accordance with the Secretary’s determination, provides for the payment of instalments of age pension or disability support pension on the days when instalments of veteran’s disability pension are to be paid to the person.

Similarly, the clause also provides, in accordance with the Secretary’s determination, for payment of a person’s age pension, disability support pension or wife pension on the days when instalments of age pension and veterans’ disability pension or disability support pension and veterans’ disability pension are paid to the person’s partner.


Clause 53 Rounding off instalments of social security payments

This clause provides the rounding rules for instalments of a social security payment.

A part of a cent will be increased or decreased to the nearest whole cent (subclause 53(2)), 0.5 of a cent is increased by that amount (subclause 53(3)). In any event, if an instalment is less than $1.00 it is increased to that amount (subclause 53(4)).


Clause 54 Payment into bank account etc.

Subclauses 54(1), (2) and (3) provide that payments of an amount are to be made by direct deposit to a bank account, credit union or building society account nominated and maintained by the person. The account may be maintained by the person either alone or jointly or in common with another person.

The Secretary may direct in the circumstances of a particular case that some other manner of payment is appropriate and that payment of some or all of the amount should be paid in some other way. This would normally be done in the case of persons with no reasonable access to banking facilities (subclause 54(4)).

If a person has not nominated an account within 28 days of being requested to do so by the Secretary then, unless subclause 54(4) applies, the relevant amount ceases to be payable to the person (subclause 54(5)).

Subclause 54(6) provides that if the person nominates an account after the end of the 28 day period, subject to other payability provisions, the relevant amount becomes payable:

• on and from the first day after the end of that period if the nomination is made within 13 weeks after the end of the 28 day period; or

• on and from the day on which the nomination is made if the nomination is not made within 13 weeks after the end of the 28 day period.

Subclause 54(6) is subject to other provisions of the social security law and payment of the amount will not be made if another provision of the social security law prevents the amount being payable (subclause 54(7)).

Clause 55 Youth allowance – failure to nominate parent

If a person is less than 18 and not independent, youth allowance is payable to them and the person has more than one living parent, then unless the person has nominated a parent to whom the person’s youth allowance is to be paid within 28 days, youth allowance is not payable while clause 45 applies to the person or the Secretary hasn’t given direction to pay the person or a person other than the person’s parents.


Clause 56 Change of particular payday

This clause provides that if a payment cannot reasonably be paid on a particular day, the Secretary may direct that the payment be paid on an earlier day.


Clause 57 Payment of social security payment, other than pension bonus, after death

This clause sets out to whom a social security payment (other than a pension bonus) may be paid if the person to whom it is payable dies.

The clause provides that if a person to whom an amount representing a social security payment is payable dies, and another person applies to the Secretary for payment of that amount within 26 weeks of the death (although the Secretary may allow a longer period), the Secretary may pay the amount to the person whom the Secretary considers is best entitled to it. If such a payment is made, the Commonwealth has no further liability.


Clause 58 Payment of pension bonus after death

This clause sets out the only circumstances in which a pension bonus will be payable after the person receiving the bonus dies. It also establishes that the pension bonus is to be paid to the legal personal representative of the person under subclauses 58(2) or (3) and that the Commonwealth has no further liability to any person in respect of that bonus (subclause 58(5)).

Division 5—Protection of social security payments and pension bonus

Clause 59 Protection of social security payment
Clause 60 Deduction at request of recipient

Clause 59 provides for social security payments to be absolutely inalienable whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy, or otherwise.

This rule is subject to some exceptions.

One of those exceptions is where a person requests that deductions be made to the Commissioner of Taxation from the person’s social security payment (clause 60).

The other exceptions are where the Commissioner of Taxation requests that the Secretary make deductions (clause 239) and where the person requests that the deductions be made (sections 1231 and 1234A of the 1991 Act).


Clause 61 Effect of garnishee or attachment order

Clause 61 protects a “saved amount” of a social security payment in a person’s bank account from being garnisheed by third party creditors. The “saved amount” is calculated by working out the amount of the instalments of social security payment credited to the person's account in the 4 week period immediately before the court order came into force and deducting from that amount the total amount withdrawn from the account during the same period. The bank account may be maintained by the person alone or jointly or in common with another person.

Division 6—Provision of information by claimants and recipients

Subdivision A—General

Clause 62 Requirement to attend Department etc.

This clause applies to a person receiving or claiming a social security payment or holding or claiming a concession card. However, the clause does not apply to a person to whom clause 63 applies.

The clause gives the Secretary the power to require a person to contact the Department or to attend a particular place or give information to the Secretary within a specified time if the Secretary thinks it is necessary (subclause 62(2)).

If the Secretary’s requirement under subclause 62(2) is notified to the person, the requirement is reasonable, and the requirement is not complied with then:

• if the payment is a newstart allowance or youth allowance, an administrative breach rate reduction period will apply if these allowances later become payable to the person (paragraph 62(3)(e)); or

• in any other case, the payment being received or claimed is not payable to the person (paragraph 62(3)(f)).

However, subclause 62(6) provides that despite subclause 62(3) having come into effect because the person failed to comply with subclause 62(2), the Secretary may negate its effect if the Secretary is satisfied that the person had a reasonable excuse for not complying with subclause 62(2).

Similarly, subclause 62(4) provides that a holder of, or claimant for, a concession card will cease to be qualified or won’t be qualified for a concession card if the person fails to comply with subclause 62(2). However, subclause 62(7) provides that the Secretary may negate the effect of subclause 62(4) if the Secretary is satisfied that the person had a reasonable excuse for not complying with subclause 62(2).

Subclause 62(5) provides that the Secretary may notify a person under subclause 62(2) by sending a notice by prepaid post to the person’s postal address last known to the Secretary or in any other way. A notification must inform the person of the effect of clause 62 (subclause 62(8)).


Clause 63 Requirement to undergo medical examination etc.

Subclause 63(1) provides that clause 63 applies to a person:

• who is claiming or receiving a disability support pension; or

• who is claiming or receiving a sickness allowance; or

• who is claiming newstart allowance and has a temporary incapacity because of sickness or because of an accident; or

• who is receiving a newstart allowance and is exempt from the activity test; or

• who is claiming or receiving a youth allowance and is temporarily incapacitated for work or does not have the capacity to undertake the course of education being studied on a full-time basis or has a temporary incapacity exemption under section 542A of the 1991 Act.

Subclause 63(2) allows the Secretary to notify a person to whom clause 63 applies, to attend or contact the Department, attend a particular place for a particular purpose, complete a questionnaire, undergo a medical, psychiatric or psychological examination or give information. If the Secretary decides that the person must undergo a medical, psychiatric or psychological examination, the person is required to provide a report, in the approved form, to the Secretary.

The Secretary may notify a person by sending a notice by prepaid post to the person’s postal address last known to the Secretary or in any other way (subclause 63(3)). A notification must inform the person of the effect of clause 63 (subclause 63(5)).

If the Secretary’s requirement under subclause 63(2) is notified to the person, it is reasonable for clause 63 to apply to the person and the requirement is not complied with then the payment they were receiving or had claimed is not payable to them, or the person ceases to be exempt from the activity test or the person ceases to have a temporary incapacity exemption, as the case may be (subclause 63(4)).


Clause 64 Medical certificate in support of claim for sickness allowance

Subclause 64(1) provides that a claim for sickness allowance must be supported by a medical certificate. The certificate must give a diagnosis and a prognosis about the claimant’s condition, that the claimant is incapacitated for work and the period of incapacity.

A certificate must be in accordance with a form approved by the Secretary (subclause 64(2)).

A medical certificate is not required if the claim is being made under section 667 of the 1991  Act (subclause 64(3)). Section 667 deals with a person undertaking a rehabilitation program.

Subclause 64(4) allows the Secretary to direct that subclause 64(1) or (2) not apply in special circumstances.


Clause 65 Notice to obtain foreign payment

This clause provides that if a person claims or is receiving a specified social security payment, and the Secretary is satisfied that the person or the person’s partner or both of them might be entitled to a comparable foreign payment, the Secretary may give the person a notice requiring that action be taken to obtain the foreign payment at the highest applicable rate.

The clause sets out how the notice must be given and the fact that a person must be given at least 14 days to take action after the notice has been given.

Subdivision B—Requirement to give information about change of circumstances etc.

Clause 66 Person who has made a claim

This clause allows the Secretary to give a notice to a person whose claim for a social security payment has been granted or not yet determined a notice, that requires the person to inform the Department if a specified event or change of circumstances occurs or is likely to occur, and/or to give the Department a statement about a matter that might affect the person’s social security payment.

The clause gives the same power to the Secretary in relation to concession cards, irrespective of whether a person’s claim for the card has been determined or is yet to be determined.

Only those events or circumstances that might affect the payment of a person’s social security payment or a person’s qualification for a concession card may be specified in a notice issued under this clause.

Clause 67 Person receiving social security payment or holding concession card

This clause is along the lines of clause 66 except that it applies in relation to a person who is being paid a social security payment or holding a concession card.


Clause 68 Person who has received a social security payment or who has held a concession card

This clause is along the lines of clause 66 except that it applies in relation to a person was previously receiving a social security payment or previously held a concession card.

However, a person is not required to comply with a notice issued under this clause if the notice requires the person to give information or a statement about the occurrence of an event or change in circumstance that might have affected the payment of the social security payment to the person or the person’s qualification for a concession card and the occurrence or event arose more than 13 weeks before the notice was given.


Clause 69 Care receiver in respect of whom carer payment being made

This clause allows the Secretary to give a notice to a care receiver or the parent of the care receiver (if the care receiver is under the age of 16 years) to inform the Department if a specified event or change of circumstances occurs or if the care receiver, or the care receiver’s parent, as the case may be, becomes aware that a specified event or change of circumstances is likely to occur.

Clause 70 Notice to recipient of family allowance or family tax payment regarding change of address

This clause gives the Secretary the power to issue a notice requiring a person who is receiving family allowance or family tax payment to inform the Department if the person has changed or changes his or her address.


Clause 71 Provisions relating to notice

This clause sets out certain requirements for any notices issued under Subdivision B.

The requirements relate to:

• how a notice is to be given;

• what the notice must specify, including how a person is required to respond to a notice and the time period for doing so.

The clause indicates (subclause 71(2)) that there are some notice requirements that are not mandatory. That is, a notice issued under the Subdivision will not be invalid if it does not specify certain details.

Subclause 71(6) provides, that for the purposes of the Administration Act (other than clause 73 (dealing with offences for, without reasonable excuse, refusing or failing to comply with certain notices to the extent that a person is capable of complying)) or a provision of Part 6 (dealing with offences), that a person will be taken to have failed to comply with a notice under this clause if the person, in response to the notice, knowingly or recklessly gives information that is false or misleading.

Subclause 71(9) makes it clear that nothing in clause 71 prevents the giving of more than one notice under Subdivision B to a person in relation to the person’s claim for the same social security payment or concession card, or the receipt by the person of the same social security payment or the holding by the person of the same concession card.

Clause 72 Application of notice provisions

This clause provides that clauses 66 to 71 (other than clause 70) extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country; and to all persons irrespective of their nationality or citizenship.


Clause 73 Offence - failure to comply with notice

Clause 73 requires that a person comply with a notice under clause 66, 67, 68 or 69 to the extent that the person is capable of complying. A penalty of 6 months imprisonment for refusal or failure may be imposed.

Subdivision C—Provision of tax file numbers

Clause 74 Secretary’s power to request tax file numbers

This clause gives the Secretary the power to request a person who has claimed, or is receiving, a social security payment, to provide the Secretary with a written statement of the person’s tax file number. If the person does not have a tax file number, the Secretary has the power to request that the person apply to the Commissioner of Taxation for a tax file number and then give the Secretary a written statement of the person’s tax file number once it has been issued.

The clause also gives the Secretary the power to request that a person provide the Secretary with a written statement of another person’s tax file number:

• if the person is a member of a couple and the person’s partner is in Australia - the partner’s tax file number;

• if the rate of the social security payment that the person is receiving takes account of someone else’s income, and that other person is in Australia – the tax file number of that other person.

Although the Secretary may make a request under this clause, a person to whom the request is made cannot be required to comply with it.


Clause 75 Effect of failure by person to satisfy request for person’s tax file number

This clause provides that a social security payment will not be payable to a person who has made a claim for a social security payment, or is receiving a social security payment, if the Secretary requests the person to provide a written statement of his or her tax file number and the person doesn’t satisfy the request within 28 days.

A request may be satisfied in a number of ways. These are set out in the clause.


Clause 76 Effect of failure by claimant or recipient to satisfy request for partner’s or related person’s tax file number

This clause is similar to clause 75 and provides that that a social security payment will not be payable to a person who has made a claim for a social security payment, or is receiving a social security payment, if the Secretary makes a request under subclause 74(3) (partner’s tax file number) or 74(4) (other person’s tax file number) and the person doesn’t satisfy the request within 28 days.

A request may be satisfied in a number of ways. These are set out in the clause.

Division 7—Various determinations

Subdivision A—Provisions relating to social security payments

Clause 77 Rate increase determination

This clause requires that the Secretary determine an increase in the rate of a social security payment paid to a person if the Secretary is satisfied that the rate of social security payment being paid to the person is less than it should be according to the social security law.


Clause 78 Rate reduction determination

This clause requires that the Secretary determine a decrease in the rate of a social security payment paid to a person if the Secretary is satisfied that the rate of social security payment being paid to the person is more than it should be according to the social security law.

However, the Secretary may only exercise this power if no other provision of the social security law would operate to reduce the rate beforehand.


Clause 79 Cancellation or suspension determination

This clause gives the Secretary the power to cancel or suspend payment of a person’s social security payment if the Secretary is satisfied that the person is not (or was not) qualified for the payment, or, that the payment is not (or was not) payable to the person.

However, the Secretary may only exercise this power if no other provision of the social security law would operate to cancel or suspend the payment beforehand.


Clause 80 Cancellation or suspension for noncompliance with certain notices

This clause gives the Secretary the power to cancel or suspend payment of social security payments where there has not been compliance with certain notices:

• if a person who is receiving a social security payment fails to comply with a notice given to him or her under either clause 67 or a notice embodying a requirement under Division 1 of Part 5 of the Administration Act (information management) (subclause 80(1));

• if a person and the person’s partner are each receiving a social security payment and the person’s partner fails to comply with a notice given to the partner under either clause 67 or a notice embodying a requirement under Division 1 of Part 5 of the Administration Act (information management), and the notice relates to matters that might also affect the payment of the person’s social security payment (subclause 80(2));

• if a person is receiving a family allowance or family tax payment fails to comply with a notice given to him or her under clause 70 so that the Department is not informed that the person has changed his or her address and the Secretary is satisfied that mail from the Secretary or an officer addressed to the person is being returned because of the person’s change of address (subclause 80(3));

The Secretary’s power to decide to cancel or suspend a person’s family allowance or family tax payment under subclause 80(3) is not affected by the fact that the Secretary is not satisfied that the person has ceased to be qualified for the family allowance or family tax payment or that the family allowance or family tax payment is payable to the person (subclause 80(4)).

Further, subclause 80(5) provides that subclause 80(3) does not limit the Secretary’s power to suspend or cancel a person’s family allowance or family tax payment under clause 79.

If a person’s family allowance or family tax payment is suspended under subclause 80(3) and that allowance or payment has been suspended for a period up to 12 months, then the allowance or payment is automatically cancelled under subclause 80(6) on the day immediately after the end of the last instalment period in respect of which the person received an instalment of the allowance or payment.
Clause 81 Cancellation or suspension for failure to take action to obtain foreign payment

This clause gives the Secretary a power to suspend or cancel a person’s social security payment if the Secretary is satisfied that the person has not complied with a notice given to the person to take action to obtain a comparable foreign payment at the highest applicable rate.

This clause also gives the Secretary a power to suspend a person’s social security payment if the Secretary is satisfied that the person has not complied with a notice given to the person requiring the person’s partner to take action to obtain a comparable foreign payment at the highest applicable rate.


Clause 82 Changes to payments by computer

This clause provides that if a social security payment is being paid to a person based upon information held in a computer, that payment is increased, decreased, cancelled or suspended because of the operation of a computer program under the control of the Secretary, and the computer changes the rate for a reason for which the Secretary could make a change by determination, then the increase, decrease, cancellation or suspension is taken to have been made by determination by the Secretary for that reason.

The determination is taken to have been made on the day that the computer made the change.


Clause 83 Automatic transfer by computer

This clause provides that if a social security payment (the first social security payment) is being paid to a person based on information held in a computer and a computer program under the control of the Secretary causes another social security payment (the second social security payment) to become payable to the person, then the Secretary is taken to have determined that the second social security payment is payable to the person and that the first social security payment ceased to be payable immediately before the day on which the second social security payment became payable to the person.

The determination taken to have been made, is taken to have been made on the day on which the second social security payment became payable to the person because of the operation of the computer program.


Clause 84 Resumption of payment after cancellation or suspension

This clause provides for the Secretary to make a decision that a social security payment is to be reinstated if it was stopped incorrectly. An example might be when a woman' s widow allowance was stopped for a month because a decision maker believed that the woman had gone overseas for 4 months but a subsequent review revealed that the woman had only gone overseas for 3 months. This provision would enable the Secretary to decide that widow allowance is to be paid to the woman in respect of that month.

The clause allows the decision that gave rise to the payments being stopped to be reconsidered following either a formal application to the Secretary for review under clause 127 or at the Secretary's instigation.

Subdivision B—Provisions relating to concession cards

Clause 85 Cancellation: person not qualified

If the Secretary is satisfied that a person no longer qualifies for a concession card, a determination to cancel the card is to be made (subclause 85(1)). A determination under subclause (1) is not authorised if the card has already been cancelled by operation of another provision of the social security law and the determination would take effect at or after the time the other cancellation would take effect (subclause 85(2)).


Clause 86 Cancellation - noncompliance with certain notices

A person who holds a concession card and does not comply with a requirement of a notice under clause 67 to give the Department a statement, or, a notice embodying a requirement under Division 1 of Part 5 of the Administration Act (information management), then a determination that the person ceases to qualify for the card may be made by the Secretary.


Clause 87 Changes to qualification by computer

If a person ceases to be qualified for a concession card because of the operation of a computer program that is under the control of the Secretary and the program causes the change for a reason for which the Secretary could make the change by determination, the change is taken to be a determination under clause 86.


Clause 88 Resumption of qualification

If the Secretary reconsiders an earlier determination to cancel a person’s concession card under clause 786and if satisfied that the person has been deprived of the card when in fact the person was qualified, a determination that the person is qualified is to be made by the Secretary (subclause 88(1)).

A reconsideration may be because of an application under clause 127 or on the Secretary’s own initiative (subclause 88(2)).

Division 8—Automatic cancellations and variations

Subdivision A—Social security payments

Clause 89 Automatic cancellation—transfer to new payment type

This clause provides for the automatic termination of a person’s social security pension or benefit (the old payment) if another social security pension or benefit or a service pension (the new payment) becomes payable to the person. In this case, the clause operates to cancel the old payment immediately before the day on which the new payment becomes payable.

For the purposes of this clause, a social security benefit does not include parenting payment.


Clause 90 Automatic cancellation of parenting payment on transfer to new payment type: member of couple

If a person who is a member of a couple is receiving parenting payment and a social security benefit becomes payable to the person, this clause operates to cancel the person’s parenting payment immediately before the day that is the person’s start day for that new social security benefit (subclause 90(1)).

Subclause 90(2) provides that when a person who is a member of a couple is receiving parenting payment and as a result of a social security pension, or a service pension, becoming payable to the person, the person's rate of parenting payment becomes nil, the person’s parenting payment is cancelled immediately before the day on which the social security pension, or service pension, becomes payable to the person.


Clause 91 Automatic cancellation of parenting payment - partner receiving ABSTUDY payment that includes dependent spouse allowance

This clause provides that if a person who is a member of a couple is receiving parenting payment and the person's partner starts to receive a payment under the ABSTUDY scheme that includes a dependent spouse allowance (the ABSTUDY payment), and, as a result of this, the person's rate of parenting payment becomes nil, the person’s parenting payment is cancelled immediately before the day on which the partner’s ABSTUDY payment becomes payable to the partner.

Clause 92 Automatic cancellation - recipient complying with subsection 67(2) notice

This clause provides that when a recipient of a social security payment complies with a subclause 67(2) notice by informing the Department of the occurrence of an event or a change in circumstances within the specified notification period and, as a result of the event or change:

• the person stops being qualified for the social security payment; or

• the social security payment would, except as provided in this clause, stop being payable to the person,

and the social security payment is not cancelled before the end of the instalment period for the person that is current when the event or change in circumstances occurs (the current period), then:

• if the social security payment is cancelled during the next instalment period after the current period (the first period), the payment is payable until the end of the current period, and is then cancelled by operation of this clause;

• if the payment is not cancelled during the first period, the payment is payable until the end of the notification period, and then is cancelled by operation of this clause.


Clause 93 Automatic cancellation – recipient not complying with subsection 67(2) notice

This clause provides that when a recipient of a social security payment fails to comply with a notice given under subclause 67(2) to inform the Department of the occurrence of an event or a change in circumstances within the specified notification period and, as a result of the event or change occurring, the person ceases to be qualified for the payment or the payment ceases to be payable to the person, the social security payment ceases to be payable on the day that the event or change in circumstances occurs.


Clause 94 Automatic cancellation - failure to provide statement under subsection 67(2)

Subclause 94(1) provides that when a person who is receiving newstart allowance fails to comply with a subclause 67(2) notice requiring the person to give the Department a statement, and the notice relates to the payment of the person’s newstart allowance for a period specified in the notice, then that allowance ceases to be payable to the person on and from the first day in the specified period.

Subclause 94(2) allows the Secretary to make a written determination that subclause 94(1) does not apply to a person on and from a specified day if the Secretary is satisfied that there are special circumstances why subclause 94 should not apply. If the Secretary does this, the specified day may before or after the determination is made (subclause 94(3)).


Clause 95 Disability support pension – suspension instead of cancellation in some cases

Subclause 95(1) provides that if a person ceases to be qualified for disability support pension because the person obtains paid work for at least 30 hours per week, and the person has informed the Secretary about having obtained that work within the notification period referred to in clause 92 (the clause 92 notification period), the Secretary may determine to suspends the person’s pension rather than cancel it.

However, subclause 95(1) does not apply if the person notifies the person that the person is no longer qualified before the person has informed the Secretary about having obtained work (subclause 95(2))

Similarly, subclause 95(3) provides that if disability support pension ceases to be payable to a person because their rate of pension is reduced to nil because of the person’s greater income as a result of working, and the has informed the Secretary about the income (or increased income) within the clause 92 notification period , the Secretary may determine that clause 92 does not apply to the person’s pension and suspend it.

If the suspension referred to above for subclause 95(1) or (3) continues for 2 years from the date of the suspension determination, then subclause 95(4) provides for the determination granting the disability support pension to the person to be automatically revoked.

If a person’s disability support pension is suspended under subclause 95(1) or (3), and the person’s partner is receiving age, disability or service pension, then for the duration of the suspension, the person' partner is taken to be partnered (partner getting neither pension nor benefit) (subclause 95(5)).

Subclause 95(6) deals with the situation where a person’s disability support pension is suspended under subclause 95(1) or (3), and the person’s partner was, immediately before the suspension, receiving wife pension or carer payment. In this situation, the Secretary must determine that the partner’s wife pension or carer payment, is suspended rather than cancelled.


Clause 96 Disability support pension – suspension taken to have been under section 95

Subclause 96(1) provides that if a person ceases to be qualified for disability support pension because the person obtains paid work for at least 30 hours per week, and person’s disability support pension ceases to be payable under clause 92, but within 2 years of that cessation, the person ceases doing paid work for at least 30 hours per week, then the Secretary may determine that the person is to be treated as clause 92 had not applied to a person and that the pension had been suspended under clause 95 instead.

If the Secretary makes such a determination, and the person’s partner had ceased to be qualified for wife pension or carer payment when the person ceased to be qualified for disability support pension because the person obtained paid work, the Secretary may determine that the person’s partner is to be treated as if their wife pension or carer payment had been suspended rather than cancelled under clause 95 (subclause 96(2)).

If disability support pension ceases to be payable to a person under clause 92 because their rate of pension was reduced to nil because of the person’s greater income as a result of working, but within 2 years of that cessation, the income that the person is earning from employment would not otherwise preclude the person from receiving the pension, then the Secretary may determine that clause 92 had not applied to the person’s pension and that the pension had been suspended under clause 95 instead (subclause 96(3)).

If the Secretary makes such a determination, and the person’s partner had ceased to be qualified for wife pension or carer payment when the person ceased to be qualified for disability support pension because the person’s income was too much (attributable to thee person doing paid work) then the Secretary may determine that the person’s partner is to be treated as if their wife pension or carer payment had been suspended rather than cancelled under clause 95 (subclause 96(4)).

Clause 97 Automatic rate reduction - partner starting to receive pension or benefit

This clause applies if the partner of a social security payment recipient starts to receive a social security pension or benefit or a service pension, and, as a result, the person’s social security payment rate is reduced. In such a case, the social security payment becomes payable to the person at a reduced rate on the day on which the partner starts to receive that pension or benefit.

Clause 98 Automatic rate reduction - recipient complying with subsection 67(2) notice

This clause provides that when a recipient of a social security payment complies with a notice given under subclause 67(2) by informing the Department of the occurrence of an event or a change in circumstances within the specified notification period and, as a result of the event or change the person’s rate of social security payment should be reduced but it is not reduced before the end of the instalment period for the person that is current when the event or change in circumstances occurs (the current period), then:

• if the social security payment rate is reduced during the next instalment period after the current period (the first period), the payment is payable at the reduced rate immediately after the end of the current period;

• if the social security payment rate is not reduced during the first period, the payment is payable at the reduced rate immediately after the end of the notification period.


Clause 99 Automatic rate reduction: recipient not complying with subsection 67(2) notice

This clause provides that when a recipient of a social security payment fails to comply with a notice given under subclause 67(2) to inform the Department of the occurrence of an event or a change in circumstances within the specified notification period and, as a result of the event or change the person’s rate of social security payment should be reduced but it is not reduced before the end of the instalment period for the person that is current when the event or change in circumstances occurs, then the social security payment becomes payable at the reduced rate on the day that the event or change in circumstances occurs.

Clause 100 Automatic rate reduction - receipt of pension by person receiving parenting payment

This clause provides that when a person who is a member of a couple is receiving parenting payment and a social security or a service pension becomes payable to the person such that rate at which parenting payment is payable to the person is reduced, the reduced rate of parenting payment is payable to the person on the day on which the social security pension or service pension becomes payable to the person.

Clause 101 Automatic rate reduction of parenting payment - partner receiving ABSTUDY payment that includes dependent spouse allowance

This clause provides that if a person who is a member of a couple is receiving parenting payment and the person's partner starts to receive a payment under the ABSTUDY scheme (the ABSTUDY payment) that includes a dependent spouse allowance and, as a result of this, the rate of parenting payment payable to the person is to be reduced, the reduced rate of parenting payment becomes payable to the person on the day on which the partner starts to receive that ABSTUDY payment.

Clause 102 Changes to payments by computer following automatic cancellation or reduction

This clause applies where a social security payment is being paid to a person based upon information held in a computer and the person’s payment is cancelled or the person’s rate of payment is automatically reduced by the operation of a provision of the social security law through the operation of a computer program under the control of the Secretary. In such a case, the Secretary is taken to have decided that the cancellation or automatic rate reduction applies to the person's payment.

A decision that is taken to have been made under this clause is taken to have been made on the day that the cancellation or reduction took effect.

Subdivision B—Concession cards

Clause 103 Automatic cancellation: holder complying with subsection 67(4) notice

This clause provides that when a holder of a concession card complies with a subclause 67(4) notice by informing the Department of the occurrence of an event or a change in circumstances within the specified notification period and, as a result of the event or change, the person would otherwise stop being qualified for the concession card, then the person continues to be qualified for the concession card until the end of the notification period.

Clause 104 Automatic cancellation: holder not complying with subsection 67(4) notice

This clause provides that when a holder of a concession card fails to comply with a subclause 67(4) notice by informing the Department of the occurrence of an event or a change in circumstances within the specified notification period and, as a result of the event or change, the person would otherwise stop being qualified for the concession card, the person ceases to be qualified for the concession card on the day on which the event or change in circumstances occurs.

Clause 105 Changes by computer following automatic cancellation

This clause applies where a person is qualified for a concession card based upon information held in a computer, the person ceases to be qualified for the concession card because of the operation of clauses 103 or 104, and the cessation is effected by the operation of a computer program under the control of the Secretary causing the person to be notified of the cessation. In such a case, the Secretary is taken to have decided that the cessation applies to the person's concession card.

A decision that is taken to have been made under this clause is taken to have been made on the day that the cessation took effect.

Division 9—Date of effect of determinations

Subdivision A—Determinations relating to claims

Clause 106 General rule

The general rule set out in subclause 106(1) is that a determination made under clause 36 to grant a claim takes effect on the day that the determination is made, or, if specified, an earlier or later day.

There are some exceptions to this rule.

Notified decision - review sought within 13 weeks

Subclause 106(2) provides that if a person requests a review under clause 127 of a decision to reject the person’s claim for a social security payment or a concession card within 13 weeks of being notified in writing of the decision, and a favourable decision results, then the favourable determination giving effect to the favourable decision takes effect on the day on which the original determination took effect.

Notified decision - review sought after 13 weeks

Subclause 106(3) provides that if a person requests a review under clause 127 of a decision to reject the person’s claim for a social security payment or a concession card more than 13 weeks after being notified in writing of the decision and a favourable decision results, then the favourable determination giving effect to the favourable decision takes effect on the day that the person sought the review.

Decision not notified

Subclause 106(4) provides that if a person requests a review under clause 127 of a decision to reject the person’s claim for a social security payment or a concession card, the decision about which he or she was not notified in writing, and a favourable decision results, then the favourable determination giving effect to the favourable decision takes effect on the day on which the original determination took effect.

Review of decision by Secretary without any review being sought by person

Subclause 106(5) provides that if a decision is made to reject a person’s claim for a social security payment or a concession card and the Secretary then reviews that decision under clause 124 without any review of the decision being sought by the person, and the Secretary decides that the person’s claim should be granted, the determination giving effect to this later decision takes effect on the day that the original determination took effect.

Subdivision B—Determinations under section 77 or 84

Clause 107 Interpretation

Clause 107 defines favourable determination for the purposes of this Subdivision as meaning a determination under clause 77 (rate increase determination) or 84 (resumption of payment after cancellation or suspension).

Clause 108 Date of effect of favourable determination resulting from review

This clause provides for the date of effect of a favourable determination in relation to a person’s social security payment.

Notified decision - review sought within 13 weeks

Subclause 108(1) provides that if a person requests a review of a social security payment decision within 13 weeks of being notified in writing of the decision and a favourable decision results, then the favourable determination giving effect to the favourable decision takes effect on the day on which the original determination took effect.

Notified decision - review sought after 13 weeks

Subclause 108(2) provides that if a person requests a review of a social security payment decision more than 13 weeks after being notified in writing of the decision and a favourable decision results, then the favourable determination giving effect to the favourable decision takes effect on the day that the person sought the review.

Decision not notified

Subclause 108(3) provides that if a person requests a review of a social security payment decision about which he or she was not notified in writing and a favourable decision results, then the favourable determination giving effect to the favourable decision takes effect on the day on which the original determination took effect.

Review of decision by Secretary without any review being sought by person

Subclause 108(4) provides that if a decision is made in relation to a person’s social security payment and the Secretary then reviews that decision under clause 124 without any review of the decision being sought by the person, and the Secretary makes a favourable determination as a result of that review, within 13 weeks of the original determination being made, the determination giving effect to this later decision takes effect on the day that the original determination took effect.

Subclause 108(5) provides that if a decision is made in relation to a person’s social security payment and the Secretary then reviews that decision under clause 124 without any review of the decision being sought by the person, and the Secretary makes a favourable determination as a result of that review, more than 13 weeks after the original determination was made, the determination giving effect to this later decision takes effect on the day that a review by an officer of the original determination was initiated.

Subclause 108(6) provides that if the favourable decision is made to reverse the effect of a determination that cancelled or suspended a social security payment because the pension ceased to be payable under section 1218 of the 1991 Act (person absent from Australia for more than 6 months without having obtained a departure certificate), the favourable determination takes effect on the day specified in the determination. The day specified must be a day on or after the day on which the cancellation or suspension of the social security payment took effect.

Clause 109 Date of effect of favourable determination following notification under section 67 notice

Subclause 109(1) provides that if a favourable decision results from a person informing the Department of the occurrence of an event or of a change in circumstances, then it takes effect on the date on which the person informed the Department or the date on which the event or change occurred, whichever is later. This subclause is subject to subclauses 109(2) to (10).

Subclause 109(2) provides that if a favourable determination results from a person giving the Department a statement about a matter in accordance with a clause 67 notice that relates to the payment of a social security payment in respect of a period specified in the notice, the determination takes effect on the day on which the matter arose.

Subclause 109(3) provides that if a favourable determination is made in relation to a person’s social security payment and that results from a person’s partner giving the Department a statement about a matter in accordance with a clause 67 notice that relates to the payment of the partner’s social security payment in respect of a period specified in the notice, the favourable determination made in relation to the person takes effect on the day on which the matter arose.

Subclause 109(4) provides that if a favourable determination is made following the death of a person's partner and because the person elects not to receive bereavement payments, and the Department was either notified by the person about the death or became aware of the death, within the bereavement period, the determination takes effect on the day on which the partner died.

Subclause 109(5) provides that if a favourable determination is made following the death of the person's partner who was not receiving a social security or a service pension and was not a long-term social security recipient and within 4 weeks from the day of death of the partner, the Department was either notified about the death by the partner of the person or became aware of the death, the determination takes effect on the day on which the partner died.

Subclauses 109(6) and (7) apply where the favourable determination relates to the birth or adoption of a child.

Provided that the person notifies the Department of the birth of the child within 13 weeks after the date of the birth, then subclause 109(6) specifies that the determination takes effect on the date of birth of the child.

Similarly, where a person is undergoing the process of adopting a child, and provided that the person notifies the Department within 13 weeks of the child being placed with the person then, subclause 109(7) specifies that the determination takes effect on the day of placement of the child.

Subclause 109(8) enables a rate of family allowance to be increased if a young person makes a claim for youth allowance and on that day the young person is a FA child of the other person, provided the Secretary is satisfied for the provision to apply. The subclause specifies that the determination takes effect on a day specified in the determination (but which may not be before the youth allowance claim).

Subclause 109(10) deals with the case where an education payment is surrendered because its rate is less than the equivalent social security rate payable (the total of the child-related amounts that that young person would attract). The provision is necessary to allow for the fact that the Secretary may not be satisfied about the rate of the education payment until the claim for that payment has been processed by the education authorities. In these cases, the favourable determination takes effect when made or earlier or later as specified in the determination.

Therefore, arrears of family allowance may be payable to the date when it stopped but only where the Secretary is informed within 28 days that the education payments have ceased.

Subclause 109(11) applies where it may be reasonable for a young person, who would otherwise be qualified for an education payment, to refuse to apply for that payment. Students are not expected to apply for an education payment where the education payment rate is less than the social security payments the child would attract. This subclause provides that the favourable determination takes effect on the day on which the young person became a prescribed student child.

Clause 110 Date of effect of section 77 determination resulting from indexation or adjustment

This clause provides that if the Secretary makes a determination under clause 77 because an amount has been indexed by the operation of Part 3.16 of the 1991 Act, the determination takes effect on the day that the amount was indexed or adjusted.

Clause 111 Date of effect of favourable determination following giving of statement

Clause 111 provides that if a statement about a matter is given in accordance with a notice under clause 67, a favourable determination, if made, takes effect on the day the matter arose.


Clause 112 Date of effect of favourable determination following amendment of assessment of taxable income

This clause provides that where a person’s rate of family allowance is varied by the Secretary as required by a recalculation under section 884 of the 1991 Act and the person's level of taxable income, as amended by a subsequent assessment by the Commissioner of Taxation, a tribunal or a court, is less than the person's taxable income for that year according to the assessment that was amended, the decision by the Secretary to vary the rate takes effect from:

• if the amendment of the assessment is made on application by the person - the day on which the person's previous rate of payment was determined; or

• if the amendment of the assessment was not made on application by the person - the day on which the person notifies the Department of the amendment of the assessment.

Clause 113 Date of effect of other favourable determinations

The date of effect of favourable determinations not made under clause 108, 109 or 112 is on a day specified in the determination (subclause 113(1))). The date of effect may be later than the day, but no earlier than 13 weeks before the day on which the determination is made (subclause 113(2)).

Subdivision C—Determinations under section 88

Clause 114 Definition

Clause 114 defines favourable determination for the purposes of this Subdivision as meaning a determination under clause 88.

Clause 115 Date of effect of favourable determination resulting from review: concession cards

This clause provides for the date of effect of a favourable determination in relation to concession cards.

Notified decision - review sought within 13 weeks

Subclause 115(1) provides that if a person requests a review of a concession card decision within 13 weeks of being notified in writing of the decision and a favourable decision results, then the favourable determination giving effect to the favourable decision takes effect on the day on which the original determination took effect.

Notified decision - review sought after 13 weeks

Subclause 115(2) provides that if a person requests a review of a concession card decision more than 13 weeks after being notified in writing of the decision and a favourable decision results, then the favourable determination giving effect to the favourable decision takes effect on the day that the person sought the review.

Decision not notified

Subclause 115(3) provides that if a person requests a review of concession card decision about which he or she was not notified in writing and a favourable decision results, then the favourable determination giving effect to the favourable decision takes effect on the day on which the original determination took effect.

Review of decision by Secretary without any review being sought by person

Subclause 115(4) provides that if a decision is made in relation to a person’s qualification for a concession card and the Secretary then reviews that decision under clause 124 without any review of the decision being sought by the person, and the Secretary makes a favourable determination as a result of that review, the determination giving effect to this later decision takes effect on the day that the original determination took effect.

Subdivision D—Date of effect of adverse determinations relating to social security payments

Clause 116 Definition

Clause 116 defines adverse determination for the purposes of this Subdivision as meaning a determination under clause 78, 79, 80 or 81.

Clause 117 Date of effect of adverse determinations - general rules

Subclause 117(1) provides how the date of effect of an adverse determination in relation to a person’s social security payment, is to be worked out. The date of effect of adverse determinations in relation to family allowance and carer payment is also worked out under clauses 118 and 119, respectively.

Subclause 117(2) provides that if a person notifies the Department of an event or change in circumstances, an adverse determination is then made, and the person is not paid an instalment of the social security payment after the event or change occurs and before the determination is made, the date of effect of the determination is the day of the event or change.

Subclauses 117(3) and 117(4) provide that where a person receives a payment of arrears of periodic compensation payments (the person or the person's partner being in receipt of a compensation affected payment at the time of the event which gave rise to the compensation) and a determination is made that the person has been overpaid as a result of receiving the arrears of compensation, the determination (to cancel or suspend the payment –subclause 117(3), to reduce the rate –subclause 117(4)) takes effect on the first day of the periodic payments period to which the arrears of periodic compensation payments relate.

Subclause 117(5) provides that if an adverse determination results from a person giving the Department a statement about a matter in accordance with a clause 67 notice that relates to the payment of a social security payment in respect of a period specified in the notice, the determination takes effect on the day on which the matter arose.

Subclause 117(6) provides that if an adverse determination is made in relation to a person’s social security payment and that results from a person’s partner giving the Department a statement about a matter in accordance with a clause 67 notice that relates to the payment of the partner’s social security payment in respect of a period specified in the notice, the adverse determination made in relation to the person takes effect on the day on which the matter arose.

Subclauses 117(7) to (9) address those situations in which the date of effect of an adverse determination can be before the date of the determination. This can occur when:

• a person whose social security payment is affected by the adverse determination contravenes a provision of the Administration Act or a provision of the 1991 Act (except for an excluded provision) and that contravention causes a delay in the making of the determination (subclause 117(7)). (Subclause 117(14) specifies those provisions that are excluded provisions for the purposes of subclause 117(7).);

• a person (not necessarily the person whose social security payment is affected by the adverse determination) makes either a false statement or a misrepresentation which causes the social security payment to be paid when it should not have been paid (subclause 117(8)); or

• a person (not necessarily the person whose social security payment is affected by the adverse determination) makes either a false statement or a misrepresentation which causes the payment to be paid at a higher rate than that at which it should have been paid (subclause 117(9)).

Subclause 117(10) provides that if an adverse determination is made because a payment ceased to be payable under section 1218 of the 1991 Act, the day specified in the determination may be on or after the day on which the payment ceased to be payable under that section.

Subclause 117(11) provides that if an adverse determination is made to cancel a person’s social security payment under clauses 79, 80, or 81, the payment having previously been suspended under clause 80 or 81, the determination takes effect on the day that the payment was suspended.

Subclause 117(12) deals with adverse determinations relating to telephone allowance. The subclause provides that such an adverse determination takes effect on the day that it was made or a later specified day.

If none of the above rules apply to an adverse determination, subclause 117(13) provides that that adverse determination takes effect on the day that it was made or a later specified day.


Clause 118 Additional rules in the case of family allowance

Subclause 118(1) provides that, where a determination is made in relation to a person’s family allowance rate, and:

• in working out that rate, regard is had to the person’s income for a tax year and the person’s taxable income for that tax year, as assessed by the Commissioner of Taxation, is taken into account;

• that assessment is subsequently amended by the Commissioner, a tribunal or a court such that the income for that year as amended is more than 110% of the amount of income on which the earlier determination was based;

• the Secretary makes a later determination that varies the person's rate of family allowance in accordance with the recalculation required by section 884 of the 1991 Act;

the later determination takes effect on the day on which the earlier determination took effect.

Subclause 118(2) provides that that, where a determination is made in relation to a person’s family allowance rate, and:

• in working out that rate, the person’s income for a tax year includes an amount or amounts estimated by the person;

• the person’s income for the tax year is more than 110% of the amount of the income on which the first determination was based;

• the person's family allowance rate has been recalculated as required by section 885 of the 1991 Act;

• the Secretary makes a further determination to vary the rate or cancel the allowance, so as to give effect to that recalculation;

the further determination takes effect on the day on which the determination using that estimate of taxable income took effect.

Clause 119 Additional rules in the case of carer payment

Subclause 119(1) provides for backdating determinations where an assessment of a care receiver’s income is amended by the Commissioner of Taxation, a tribunal or a court. The date of effect is the day on which the earlier determination was made that the person was entitled to carer payment.

Subclause 119(2) provides for backdating determinations where taxable income has been estimated and is subsequently assessed by the Commissioner of Taxation. The date of effect is the day on which the earlier determination was made that the person was entitled to carer payment.

Subclause 119(3) provides for the cancellation or suspension of carer payment where the income of the higher Adult Disability Assessment Tool (AFDAT) score adult exceeds the income ceiling. The decision takes effect on the date that the carer or care receiver informed the Department that the income exceeded the ceiling (or if the Department was not so informed, the decision takes effect on the date that the income exceeded the ceiling).

Subclause 119(4) makes similar provision where the care receiver is a profoundly disabled child. In this case, the information must be provided by the carer or the child’s parent.

Subclause 119(5) makes similar provision where the care receivers are 2 or more disabled children, and subclause 119(6) similarly provides for the situation where the care receivers are the lower ADAT score adult and child. In the latter case, the information must be provided by the carer, the adult, or a parent of the child.

Subdivision E—Date of effect of adverse determinations relating to concession cards

Clause 120 Definition

Clause 120 defines adverse determination for the purposes of this Subdivision as meaning a determination under clause 85 or 86.

Clause 121 Date of effect of adverse determinations

This clause provides that an adverse determination takes effect on the day on which it is made or a later specified day.

Division 10—Continuing effect of determinations

Clause 122 Continuing effect of determinations

Subclause 122(1) provides that a determination that grants a social security payment or specifies that it is payable, continues in effect until the payment ceases to be payable under a further determination made under clause 79, 80 or 81 takes effect or the payment ceases to be payable under clause 689, 90, 91, 92 or 93.

Subclause 122(2) provides that a determination that a person is qualified for a concession card continues in effect until a further determination made under clause 85 or 86 takes effect or the person ceases to be qualified for the card under clauses 102 or 103.

Subclause 122(3) provides that a determination about a person’s rate of social security payment continues in effect until a determination made under clause 77 or 78 takes effect or the payment becomes payable at a lower rate under clauses 97, 98 or 99.

PART 4—REVIEW OF DECISIONS

Division 1—Internal review

Clause 123 Application of Part to decisions under repealed laws

Clause 123 provides that Part 4 of the Social Security (Administration) Act will apply to decisions under the 1947 Act and the Social Security Act 1991 as in force immediately before the commencement of the Social Security (Administration) Act, as if they were decisions under the social security law.

Clause 124 Review of decisions by Secretary

Subclause 124(1) specifies the type of decisions that the Secretary may review if satisfied that there is sufficient reason to do so.

However, subclause 101(2) provides that the Secretary may not review a decision if the person to who the decision relates was notified of the decision and 12 months has expired since the person was notified.

The Secretary may review a decision whether or not a person has applied for a review and even if an application for review has been made to the SSAT or the AAT (subclause 124(3)).

Subclause 124(4) provides that the Secretary may affirm a decision, vary a decision or set aside and substitute a new decision.

Subclause 124(5) allows the Secretary, having set aside a decision, to determine that an event has occurred for the purposes of the social security law even though the event did not occur. Such a determination may be made if the Secretary is satisfied that the event would have occurred if the decision had not been made.

Clause 125 Decisions that are not reviewable by the Secretary

Clause 125 provides that the Secretary may not review certain decisions under clause 127. Those decisions relate to decisions made personally by the Secretary himself or herself, and certain decisions by the Employment Secretary or by the Minister for Agriculture, Fisheries and Forestry or the Secretary to the Department of Agriculture, Fisheries and Forestry under the Farm Household Support Act 1992.

Clause 126 Notice to Executive Director or AAT Registrar

If the Secretary makes a decision under subclause 124(4) and at that time the person has already applied to the SSAT for a review of the decision that the Secretary was also reviewing, the Secretary must give a written notice of the decision to the Executive Director of the SSAT (subclause 126(1)).

Similarly, if the Secretary makes a decision under subclause 124(4) and at that time the person has already applied to the AAT for a review of the decision that the Secretary was also reviewing, the Secretary must give a written notice of the decision to the Registrar of the AAT (subclause 126(2)).

Clause 127 Application for review

A person affected by certain specified decisions may apply to the Secretary for review (subclause 127(1)).

Subclause 127(2) sets out the review rights where a decision is made about a child support agreement under subsection 91A(3) of the Child Support (Assessment) Act 1989.

Subclause 127(3) deals with decisions made in relation to a pension bonus under Part 3 of the Social Security (Administration) Act. If a notice is given to a person about a pension bonus decision, the person may not apply for a review if more than 13 weeks has elapsed after the giving of the notice.

Subclause 127(4) provides that a person may not apply for an application for review under subclause 127(1) of certain decisions. These decisions are set out in the subclause.

Any reference to a decision of an officer under the social security law in clause 127 is taken to include a reference to a determination taken by the Secretary by virtue of a provision of the social security law (subclause 127(5)).

Clause 128 Time limit for application for review

An application for review under clause 127 must be made within 12 months after the applicant is notified of the decision (subclause 128(1)) unless the Secretary allows a longer period in the special circumstances in relation to that application (subclause 128(2)).

Clause 129 Withdrawal of application

Subclause 129(1) provides that an application for review may be withdrawn at any time before the review has been completed.

An application that is withdrawn is taken to have not been made (subclause 129(2)).

Subclause 129(3) provides that an application may be withdrawn orally, in writing or in any manner approved by the Secretary.

Clause 130 Secretary may continue payment pending outcome of application for review

Subclause 130(1) enables the Secretary to declare that payment of a person’s social security payment is to continue while an application for review of an adverse decision that affects the person’s payment is underway, regardless of that adverse decision. This applies where the adverse decision depends on someone either exercising a discretion or holding an opinion. Any declaration must be in writing (subclause 130(3)).

Subclause 130(1) does not apply if clauses 132 or 133 apply (subclause 130(2)).

Subclause 130(4) provides that the social security law (other than Part 4 of the Social Security (Administration) Act will apply while the declaration is in force as if the adverse decision had not been made.

Subclause 130(5) sets the period during which the declaration has effect. This starts when the declaration is made or earlier if specified. It ends when either the application for review is withdrawn, the review is determined or the declaration is revoked.

Subclause 130(6) provides that when subclause 130(1) refers to a person’s holding of an opinion, this means whether the Social Security (Administration) Act expressly requires the opinion to be held before the decision is made or not.

Subclause 130(7) defines what is meant by adverse decision for the purposes of clause 130.

Clause 131 Guidelines for exercise of Secretary’s power to continue payment

This clause gives the Minister the power to determine written guidelines for the exercise of the Secretary’s power to make declarations under clause 130 in relation to social security payments to persons who are subject to an activity test non-payment period. The Minister may revoke or vary these guidelines.

The determination setting out the guidelines is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Clause 132 Automatic payment if review of section 544C terms decision sought

Clause 132 authorises continued payment of youth allowance pending the outcome of a request for an internal review of a decision under section 544C of the 1991 Act (failure to agree to terms proposed by the Secretary for inclusion in a Youth Allowance Activity Agreement) to a person who makes an application within 14 days after being notified of the decision. If the person's payment was cancelled as a result of the section 544C decision, the person is entitled to arrears for the period.

Clause 132 ceases to have effect if the application is withdrawn or the review of the original decision is determined.

Clause 133 Automatic payment if review of section 607 terms decision sought

Clause 133 is identical to clause 132 except that it deals with requests for internal review of decisions under section 544C of the 1991 Act (failure to agree to terms proposed by the Secretary for inclusion in a Newstart Allowance Activity Agreement).

Clause 134 Review of decisions following application under section 127

Subclause 134(1) provides that where a person applies under clause 127 for a review, the Secretary, the CEO or an authorised review officer must affirm or vary the decision or set it aside and substitute a new one.

Subclause 134(2) provides that where a person applies for review of a decision of an officer of the Employment Department, as a delegate of the Secretary, the reference to an authorised review officer in subclause 134 is taken to be a reference to an authorised review officer who is an officer of the Employment Department.

Authorised review officers may not review decisions relating to the exercise of the Secretary’s powers under sections 1285A of the 1991 Act (settlement of debt recovery proceedings before the AAT) and subsection 1218A(2) of the 1991 Act (exercise of discretion to treat person as having continued to qualify for a social security payment despite having left Australia for more than 6 months but less than 2 years) (subclauses 134(3) and (4), respectively).

Subclause 134(5) provides that if a person sets a decision aside the Secretary may determine that an event has occurred for the purposes of the social security law even though the event did not occur. Such a determination may be made if the Secretary is satisfied that the event would have occurred if the decision had not been made.

Clause 135 Notice of decision on review

This clause provides that the notice of the decision under subclause 134(1) must be given in writing to the person seeking the review, and, if the review decision relates to a decision under subsection 91A(3) of the Child Support Assessment Act 1989 about a child support agreement, written notice of the decision to the other party to that agreement as well.

Clause 136 Certain decisions not to be revived

Clause 136 has the effect of making sure that arrears of a social security payment will be payable only from the date of application for review if a person does not seek a review until later than 13 weeks after notice of an adverse decision is given. It provides, in these circumstances, that, if the Secretary, an authorised review officer, the SSAT or the AAT decides that the adverse decision should be set aside, a new determination is required for payment to resume. The payment will resume subject to the usual date of effect provisions that limit arrears when the review is sought after more than 13 weeks.

The clause operates similarly in relation to concession cards.

Clause 137 Notification of further rights of review

Clause 137 requires that a written notice given to a person under clause 135 must include a statement to the effect that the person may apply to the SSAT for a review of the decision. The statement must also set out the reasons for the decision and the findings on the material questions of fact, and refer to the evidence on which the findings were based. The statement must also advise that, if the person is still dissatisfied with the decision after review by the SSAT, application may be made to the AAT for further review.

The clause also clarifies that, if there is a failure to comply with the notification requirements as set out in this clause, the validity of the decision remains unaffected.

Division 2—Review by the Social Security Appeals Tribunal

Subdivision A—Preliminary

Clause 138 Continuance of Social Security Appeals Tribunal

This clause ensures that the SSAT, having been continued in existence when the 1991 Act was enacted, is similarly continued by the enactment of the Social Security (Administration) Act.

The clause indicates that Schedule 3 contains provisions relating to the constitution, membership and organisation of the business, of the SSAT, together with certain saving provisions.

Subdivision B—Review by SSAT

Clause 139 Application of Division

This clause makes it clear that, unless it is otherwise stated, this Division applies to all decisions of officers under the social security law, including decisions that are not reviewable under Division 1 of this Part.

Clause 140 SSAT objectives

This clause requires the SSAT to pursue, in carrying out its functions, the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

Clause 141 Application for review by SSAT

Subject to clause 1142 and 144, clause 141 enables a person whose interests are affected by a decision of the Secretary, the CEO or an authorised review officer under clause 134 to apply to the SSAT for a review of that decision.

Similarly, subject to clause 145 and 147, a person may seek a review of a decision made personally by the Secretary or made personally by the CEO.

Subclause 141(3) makes it clear that if a decision is made under subsection 91A(3) of the Child Support Assessment Act 1989 about a child support agreement, both parties to that agreement are people whose interests are affected for the purposes of subclause(1).

Clause 142 Time limit for applying for review by the SSAT

This clause imposes a time limit for application for review to the SSAT. The time limit is 28 days, where an applicant has been notified of a decision by the Secretary, the CEO or an authorised review officer;

However, the Executive Director of the SSAT may extend this period if satisfied that special circumstances exist in relation to the case.

Clause 143 Application requirement for certain decisions

This clause provides that the SSAT may only review a decision under section 544B or 606 of the 1991 Act – to the extent that the decisions relate to the terms of a Youth Allowance Activity Agreement or a Newstart Allowance Activity Agreement, respectively - if the application is expressed to be an application for review of that decision.

Clause 144 Non-reviewable decisions

This clause provides that the SSAT may not review certain decisions. The clause sets out what those decisions are.

Clause 145 Secretary may continue payment pending outcome of application for review

Clause 145 enables the Secretary to declare in writing that payment of a person’s social security payment is to continue while an application to the SSAT for review of an adverse decision that affects the person’s payment is underway, regardless of that adverse decision. This applies where the adverse decision depends on someone exercising a discretion or holding an opinion, or where the adverse decision would result in the application of an activity test non-payment period.

The clause does not apply if clause 132 or 133 applies to the decision.

The Social Security (Administration) Act, other than this Division, applies while the declaration is in force as if the adverse decision had not been made.

The declaration has effect starting from the day when the declaration was made, or earlier if specified. It ends when either the application for review is withdrawn or determined or when the declaration is revoked.

The clause defines what is meant by adverse decision for the purposes of this clause.

Clause 146 Guidelines for exercise of Secretary’s power to continue payment

This clause provides that the Minister may make written guidelines for the exercise of the Secretary’s power to make declarations under subclause 145(1) relating to social security payments to a person who is the subject of an activity test non-payment period.

These guidelines are a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Clause 147 Automatic payment if review of decision under section 544C of the 1991 Act sought
Clause 148 Automatic payment if review of decision under section 607 of the 1991 Act sought

These clauses provide that if a person applies to the SSAT for a review of an adverse decision under sections 544C or 607 of the 1991 Act – failure to agree to the terms of a Newstart Activity Agreement or Youth Allowance Activity Agreement, respectively - within 14 days of being notified of the decision, then the payment of the newstart allowance or youth allowance, as the case may be, continues as if the agreement had not been required. If the person's payment was cancelled as a result of the section 544C or 607 decision, the person is entitled to arrears for the period.

The clauses cease to have effect if the application is withdrawn or the review of the original decision is determined.

Clause 149 SSAT review powers

Subclause 149(1) sets out the powers of the SSAT on review of a decision.

The SSAT must either affirm or vary the decision or set it aside. Where a decision is set aside, the SSAT must either substitute a new decision or send the matter back to the Secretary for reconsideration in accordance with the SSAT’s directions or recommendations.

Subclause 149(2) requires the SSAT, if it sets aside and substitutes a decision that a person is entitled to a social security payment (other than a pension bonus), to assess the rate of that payment or ask the Secretary or the CEO to assess the rate. The latter might be done, for example, where complex rate calculations are involved.

Subclause 149(3) is similar to subclause 149(2) but deals with pension bonuses.

Subclause 149(4) enables an event that did not occur to be deemed to have occurred if a decision has been set aside by the SSAT and the Secretary or the SSAT (as the case may be) is satisfied that the event would have occurred but for the decision having been taken in the first place.

Subclause 149(5) provides that clause 149 does not apply to a decision under section 606 of the 1991 Act to the extent to which it relates to the terms of a Newstart Activity Agreement that is in force or to a decision under section 544C of the 1991 Act to the extent to which it relates to the terms of a Youth Allowance Activity Agreement that is in force.

Clause 150 SSAT review powers (Activity Agreement decisions)

This clause sets out the review powers of the SSAT where a person applies for a review of a decision:

• under section 525B of the 1991 Act as previously in force to the extent that it related to the terms of a Job Search Activity Agreement that was previously in force;

• under section 544B of the 1991 Act to the extent that it relates to a term of a Youth Allowance Activity Agreement that is in force;

• under section 606 of the 1991 Act to the extent that it relates to a term of a Newstart Activity Agreement that is in force.

The SSAT must affirm the decision or set it aside and send the matter back to the Secretary or the CEO for reconsideration in accordance with any recommendations of the SSAT.

Clause 151 Powers of the SSAT

This clause makes it clear that subject to some limitations set out in subclause 151(2), the SSAT is able to exercise all the powers and discretions conferred on the Secretary by the social security law and not just the limited delegated powers that may have been conferred on the officer making the decision under review.

Subclause 151(3) clarifies that, when a decision under the Health Insurance Act 1973 is being reviewed by the SSAT, the SSAT may exercise all the powers conferred by that Act on the Secretary.

Subclauses 151(4) provides that nothing in clause 151 applies in relation to a review of a decision under section 606 or 544B of the 1991 Act to the extent that it relates to the terms of a Newstart Activity Agreement or a Youth Allowance Activity Agreement, respectively.

Clause 152 Date of effect of SSAT decisions (other than Activity Agreement decisions)

Subclause 152(1) provides that a decision of the SSAT comes into operation immediately the decision is given, unless subclause 152(2) applies.

Subclause 152(2) provides that the SSAT may specify that a decision comes into operation on a later day specified in the decision.

Subclause 152(3) provides that subject to subclauses 152(4) and (5), the date of effect of a decision is the date on which the decision under review has or had effect. This applies where the SSAT varies the original decision or substitutes a new decision for it.

Subclause 152(4) modifies the above rule so that, where a person applies to the SSAT for review more than 13 weeks after being given notice of the original decision and where the effect of the SSAT’s decision in varying the original decision or setting it aside and substituting a new one is basically favourable (ie, it leads to the grant of the claim, the making of a payment or an increase in rate), then the decision of the SSAT takes effect on the date of the person’s application for review.

Subclause 152(5) allows the SSAT to direct that subclause 152(3) not apply to a decision by the SSAT on review and that subclauses 152(1) and (2) apply instead, that is, a less favourable date of effect than that of the original decision may be applied if circumstances warrant.

Subclause 152(6) makes it clear that these provisions do not cover decisions relating to the terms of a Newstart Activity Agreement or a Youth allowance Activity Agreement.


Clause 153 Date of effect of SSAT decision (Activity Agreement decision)

This clause provides that an SSAT decision in relation to an application for review of a decision under either section 606 or 544B of the 1991 Act – relating to the terms of a Newstart Activity agreement and a Youth Allowance Activity Agreement, respectively – comes into operation immediately the SSAT hands down its decision.

However, the SSAT may specify that its decision is not to come into effect until a later specified day.

Clause 154 Application requirements

This clause states that applications to the SSAT may be made in writing and sent to an office of the SSAT, the Department or an office of the Commonwealth Services Delivery Agency. Alternatively, an application can be made orally at, or by telephoning, an office of the SSAT.

If a person receives an oral application, the person is required to make a written record of that application, including the date of the application. Such a written record is deemed to be a written application delivered to the SSAT on the day of the oral application. The written record must be delivered to an office of the SSAT as soon as is reasonably practicable.

A person may include a statement of reasons for seeking a review of the decision in his or her application for review.

Clause 155 Variation of decision before review completed

Subclause 155(1) provides that any variation by an officer to a decision that is being reviewed by the SSAT does not deprive the SSAT of its jurisdiction to hear the matter. The application to review the decision proceeds as if it were an application for review of the varied decision.

Subclause 155(2) makes a similar provision to subclause 155(1) except that it applies where an officer sets a decision aside and substitutes a new one.

Subclause 155(3) provides that a person may either proceed with the review or withdraw the application where a decision is varied or set aside and substituted by an officer while the application for review is before the SSAT. This provision contemplates cases where an applicant will be satisfied with the decision after it is varied or set aside and there will be no longer any reason to proceed with the review by the SSAT.

Clause 156 Parties to SSAT review

Clause 156 states who are the parties to a review by the SSAT.

Any person whose interests are affected by a decision which is the subject of an application for review may apply in writing to the Executive Director to be made a party to the review. The Executive Director may order that that person be joined as a party to the review (subclauses 156(2), (3) and (4)).

If a party to a child support agreement applies for a review of a decision under subsection 91A(3) of the Child Support Assessment Act 1989 relating to that agreement, the Executive Director must order that the other party to the agreement be made a party to the review. However, the other party may notify the Executive Director in writing that that person waives his or her rights under clause 141 and this clause (subclause 156(5)).

Division 3—Procedures for review by the SSAT

Subdivision A—Preliminary procedures

Clause 157 Procedure on receipt of application for review by SSAT

Subclause 157(1) provides that, where an application for review is sent to an office of the Department or the Commonwealth Services Delivery Agency, the Secretary is responsible for ensuring that it is sent to the SSAT as soon as practicable but in any case no later than 7 days after the Department or Agency received it.

Subclause 157(2) provides that the Executive Director must give both the applicant and the Secretary written notice that an application has been received. This applies irrespective of whether the application was initially lodged with the SSAT o9r with the Department or Agency and then onforwarded.

Subclause 157(3) requires the Secretary to provide the SSAT a statement about the decision under review. The statement must set out the findings of fact, refer to the evidence and give the reasons for the decision. The Secretary is also required to provide the Executive Director with all documents relevant to the decision under review. This will, in practice, be a transfer of the applicant’s file. These requirements have to be complied with within 28 days of the Secretary receiving a notice of the application for review.

Subclause 157(4) provides that, where the Executive Director asks the Secretary to send the statement and documents earlier than the date specified in subclause 157(3), the Secretary must take reasonable steps to comply with this request. The Executive Director might issue a request under this subclause in cases in which financial hardship could occur pending the determination of the appeal.

Subclause 157(5) provides for the situation where relevant documents come into the Secretary’s possession after the statement has been prepared and sent, with the file, to the Executive Director. The Secretary is required to send a copy of the later documents to the Executive Director as soon as practicable after receiving them.

Clause 158 Parties to be given a statement about the decision under review

Subclause 158(1) requires the Executive Director to give each party to the review (other than the Secretary) a copy of the Secretary’s statement of reasons. This does not extend to documents supplied by the Secretary.

Subclause 158(2) enables the Executive Director to order the person receiving the above copy not to disclose any information from the statement or any information other than as specified in the order.

Subclause 158(3) requires this order to be in writing and subclause 158(4) binds the person to comply with the order.

Clause 159 Arrangements for hearing of application

Subclause 159(1) requires the Executive Director to fix a date, time and place for the hearing of an application for review.

Under subclause 159(2), this must be as quickly as possible if a declaration under clause 145 is in force.

Subclauses 159(3) and (4) require the Executive Director to give written notice to the applicant about the details of the hearing a reasonable time before the date fixed.

Clause 160 Notice of application to person affected by decision

Subclause 160(1) provides that reasonable steps must be taken by the Executive Director to give written notice of the application to another person whose interests are, in the Executive Director’s opinion, affected by the decision.

Subclause 160(2) requires the above notice, which may be given at any time before the review is determined, to also set out the person’s right to be joined as a party under clause  156. Under subclause 160(3), each party is to be given a copy of the notice.

Subclause 160(4) provides that for the purposes of subclause 160(1), both parties to a child support agreement are deemed to be persons whose interests are affected by a decision made by an officer under subsection 91A(3) of the Child Support Assessment Act 1989.

Subdivision B—How the SSAT informs itself about the decision under review

Clause 161 Submissions to SSAT

Subclause 161(1) allows a party to the review to make submissions either orally or in writing or in both. This subclause is subject to clause 162.

Subclause 161(2) allows the Secretary allows the Secretary or CEO to make written submissions to the SSAT.

Subclause 161(3) allows a party to have another person make submissions to the SSAT on his or her behalf.

Subclause 161(4) enables the Executive Director to accept submissions by either party or their representative by telephone or other electronic communications equipment.

Subclause 161(5) outlines some of the situations where the Executive Director may decide that submissions may be made by telephone or other electronic communications equipment.

Subclause 161(6) provides that if a party is not proficient in English, the Executive Director may direct that communication proceed through an interpreter.

Subclause 161(7) provides that a reference in this clause to a party does not include the Secretary.

Clause 162 SSAT hearings on written submissions only

Subclause 162(1) provides that the Executive Director may direct that the hearing proceed without oral submissions from the parties if the Executive Director considers that the review hearing could be determined fairly on the basis of the parties’ written submissions.

If the Executive Director gives a direction that the hearing is to proceed without oral submissions, the Executive Director must give each of the parties to the review a written notice informing them of that direction, invite each party to make written submissions and specify the address to which such submissions are to be delivered and by when. parties must be given a reasonable period to make written submissions (subclauses 162(2) and (3)).

Despite subclause 162(1), the SSAT, as constituted for the hearing, may, if it considers necessary after considering the written submissions, make an order allowing the parties to make oral submissions (subclause 162(4)). A “party” in subclause 162(4) does not include the Secretary or the CEO.

Clause 163 SSAT hearings without oral submissions by party

Subclause 163(1) provides that the SSAT may proceed without oral submissions from a party where that party has advised that he or she does not intend making oral submissions.

Subclause 163(2) provides that the Executive Director may authorise the SSAT to proceed without oral submissions from a party where the Executive Director had decided to have oral submissions from that party by telephone or other electronic communications equipment and the presiding member had made reasonable efforts to contact the party or the party’s representative but was unable to do so.

Subclause 163(3) provides that the Executive Director may authorise the SSAT to proceed without oral submissions from a party where there has been no determination that submissions from that party may be made by telephone or other electronic communications equipment and the party does not attend the hearing.

Subclause 163(4) provides that the SSAT may proceed to hear the application where the Executive Director has given an authorisation under either subclause 163(2) or (3).

Subclause 163(5) allows the Executive Director to revoke an earlier authorisation made under subclause 163(2) or (3). This may arise where contact is made with a party after the authorisation was made.

Clause 164 Evidence on oath or affirmation

This clause enables the SSAT to take evidence on oath or affirmation for the purposes of a review of a decision.

Clause 165 Provision of further information by Secretary

This clause enables the Executive Director to ask the Secretary to provide any further information or a document that is in the Secretary’s possession that is relevant to the review, and, the Secretary must, if practicable, comply within 14 days.

Clause 166 Exercise by Secretary of powers under section 193

This clause enables the Executive Director to ask the Secretary to take all reasonable steps to obtain information from a person by issuing a notice under clause 193 where the Executive Director is satisfied that a person has information or has custody or control of a document that is relevant to the review. Such a request should be met, if at all practicable, within 7 days of the Secretary receiving the request.

Subdivision C - The hearing

Clause 167 Hearing procedure

This clause provides that the SSAT is not bound by technicalities, legal forms or rules of evidence, and is to act as speedily as possible but still ensure that the review receives proper consideration, having regard to the SSAT objectives set out in clause 140. The SSAT is also free to inform itself on any matter relevant to a review in any manner it considers appropriate.

Clause 168 Hearing in private

Subclause 168(1) sets out the general rule that the hearing of a review is to be in private.

Subclause 168(2) provides the Executive Director with a discretion to issue directions in writing or otherwise as to who may be present at any hearing of a review.

Subclause 168(3) provides that the Executive Director, in exercising his discretion under subclause 168(2), must have regard to the wishes of the parties and the need to protect their privacy.

Clause 169 New evidence

Subclause 169(1) provides that if an applicant for a review provides the SSAT with evidence that was not available to the original decision-maker, or to a person who reviewed that original decision, the SSAT may refer the decision to the Secretary for review and may adjourn the hearing.

Subclause 169(2) provides that if the SSAT is satisfied that applicant had reasonable grounds for not providing such information to the original decision-maker or a person who reviewed the original decision, the SSAT may determine the review.

Clause 170 Restrictions on disclosure of information obtained at hearing

Subclause 170(1) gives the Executive Director a power to make orders so that persons who are admitted to the privacy of a hearing are not to disclose the information gained in the course of the hearing except as specified in the order.

Subclause 170(2) provides that a person must not contravene such an order.

Subdivision D – Other procedural matters

Clause 171 Adjournment of SSAT hearings

Subclause 171(1) gives the SSAT the power to adjourn a hearing from time to time.

The factors that may, among others, be relevant to a decision to refuse to adjourn are set out in subclause 171(2).

Clause 172 Withdrawal of application for review

Subclause 172(1) provides that an applicant may withdraw the application at any time.

Subclause 172(2) provides that the withdrawal, where it is in writing, may be sent to an office of the Department or the SSAT and, where it is oral, it may be communicated to the SSAT either personally or by telephone.

Subclause 172(3) requires the person to whom the oral withdrawal is communicated to make a written record of that withdrawal, including the date of the withdrawal.

Subclause 172(4) requires that the Secretary send the Executive Director a written notice of withdrawal if it is lodged at an office of the Department. This must be done as soon as practicable and, in any case, within 7 days.

Clause 173 Dismissal of an application

Subclause 173(1) gives the Executive Director the power to dismiss an application where the applicant has communicated an intention not to proceed with the application or if, after the Executive Director has made reasonable attempts to contact the applicant, there has been no contact.

Subclause 173(2) states that an application is taken to have been withdrawn on the date of the dismissal.


Clause 174 Chairperson for each SSAT hearing

This clause sets out who is to preside at a hearing.


Clause 175 Decision of questions before SSAT

Questions before the SSAT are to be decided by majority.

Clause 176 Directions as to procedure for hearings

This clause sets out the rules for procedures to be adopted by the SSAT in connection with reviews, be they general or review specific.


Clause 177 Costs of review

Subclause 177(1) sets out the general rule that each party must bear their own expenses incurred in connection with the review.

Subclause 177(2) provides that the SSAT may specify in a determination that a party is to be reimbursed by the Commonwealth for reasonable costs that are incurred by the party for travel and accommodation expenses in relation to the review.

Subclause 177(3) provides that the SSAT may determine that the Commonwealth pay the costs of a medical service that the SSAT arranges for a party to a review.

Subdivision E – Notification of decisions

Clause 178 Procedure following SSAT decision

Subclause 178(1) requires the SSAT, after it makes its decision, to prepare a statement which sets out the decision, the reasons for the decision and the findings on material questions of fact, and refers to the evidence or other material on which the findings are based.

This statement must be given to all parties to the review within 14 days after the determination of the review and the documents provided by the Secretary musty be returned. Copies of nay later documents collected by the SSAT must also be provided to the Secretary.

Subclause 178(2) requires the Executive Director to give to each party other than the Secretary a notice to the effect that, if still dissatisfied, the party may appeal to the AAT. However, subclause 178(3) provides that the validity of a decision by the SSAT is not affected by a failure to comply with subclause 178(2).

Division 4—Review by the AAT

Subdivision A—Preliminary

Clause 179 Application of Division

This clause makes it clear that, unless it is otherwise stated, this Division applies to all decisions of officers under the social security law and specified provisions of other Commonwealth Acts.

The clause also makes it clear that the Division applies as if a decision under the 1991 Act, as in force immediately before the commencement of the Social Security (Administration) Act, were a decision under the social security law.

Subdivision B—Right to review by AAT

Clause 180 Review of decisions by AAT

Subclause 180(1) provides that an application for review may be made to the AAT in respect of a decision that has been affirmed, varied or set aside by the SSAT.

Subclause 180(2) clarifies that the “decision” made by the SSAT as referred to above is to be taken to be the decision as varied or affirmed, or the new decision if the original one was set aside, or the directions or recommendations of the SSAT if the decision was sent back to the Secretary.

Subclause 180(3) clarifies that subclause 180(2) is subject to section 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

Subclause 180(4) applies to decisions set aside by the AAT and allows the Secretary to deem an event to have occurred if satisfied that it would have if not for the decision reviewed.

Subclause 180(5) provides that for the purposes of the application of the AAT Act to, or to a matter arising out of, the decision, both parties to a child support agreement are deemed to be persons whose interests are affected by a decision made by an officer under subsection 91A(3) of the Child Support Assessment Act 1989.

Clause 181 Variation of decision before AAT review completed

Subclause 181(1) provides that where a decision is varied by an officer after an application has been made to the AAT, the application is to be treated as if the decision as varied had been affirmed by the SSAT and the decision under review is the varied decision rather than the original decision.

Subclause 181(2) has the same effect for decisions set aside and substituted.

Subclause 181(3) makes it clear that an applicant has a choice whether to proceed with the application for review or to withdraw where an officer varies the decision under review or sets the decision aside and substitutes a new decision.

Clause 182 Review by AAT limited to decisions reviewed by SSAT

This clause provides that the AAT may only review decisions that have already been reviewed by the SSAT.

Clause 183 Settlement of proceedings before the AAT

Subclause 183(1) provides that if the AAT proceedings relate to the recovery of a debt, the Secretary and the other parties to the proceedings may to settle the matter. Any agreement must be in writing.

Subclause 183(2) provides that if the proceedings are settled and the Secretary gives the AAT a copy of the agreement to settle the proceedings, the application for review that is the subject of the proceedings is taken to have been dismissed.

Subdivision C – Modification of Administrative Appeals Tribunal Act

Clause 184 Definition

AAT Act means the Administrative Appeals Tribunal Act 1975 in this Subdivision.

Clause 185 Notice of application for review

Clause 185 modifies subsection 29(11) of the AAT Act so that all parties to the SSAT review of the decision, except the party making the application to the AAT, receive a notice that there has been an application to the AAT for a review of the decision made by the SSAT.

Clause 186 Parties to a review by the AAT

This clause modifies paragraph 30(1)(b) of the AAT Act so that the parties to the review by the AAT are the same as the parties to the review by the SSAT.

Clause 187 Lodgment of documents with the AAT

Subclause 187(1) modifies section 37 of the AAT Act so that the original decision maker will be responsible for providing the AAT with a statement of reasons and documents. If the original decision was made by the CEO or an employee of the Commonwealth Services Delivery Agency, the CEO assumes responsibility. In any other case, the Secretary assumes responsibility.

Subclause 187(2) provides that, for the purposes of the Secretary meeting the obligations under paragraph 37(1)(a) of the AAT Act, the statement provided by the SSAT under paragraph 178(1)(a) will be sufficient. Subclause 187(4) provides that if the original decision was made by the CEO or an employee of the Commonwealth services Delivery Agency, references to “Secretary” in subclause 187(2) are to be substituted with references to “CEO”.

Subclause 187(3) clarifies that the AAT’s powers under section 38 of the AAT Act to obtain an additional statement is not limited by the operation of subclause 187(2).

Subclause 187(5) provides that for the purposes of this clause, original decision means the decision that was reviewed by the SSAT.


Clause 188 Power of AAT to obtain additional information

Clause 188 modifies section 38 of the AAT Act so that the person who is required to provide any additional statements under that section to the AAT is the Executive Director.


Clause 189 Operation and implementation of the decision under review

This clause modifies subsection 41(4) of the AAT Act so that, where a party applies to the AAT for an order staying or otherwise affecting the operation or implementation of a decision made by the SSAT, each party to the review before the SSAT will be able to make submissions to the AAT.


Clause 190 Failure of party to appear

This clause modifies subsection 42A(2) of the AAT Act so that the AAT may not prevent the Secretary from being a party to proceedings before the AAT.


Clause 191 Limit of AAT power in reviewing a decision

This clause modifies subsection 43(1) of the AAT Act so that references to all powers and discretions conferred on the person who made the original decision excluded the secretary’s power under subsection 1218A(2) of the 1991 Act.

PART 5—INFORMATION MANAGEMENT

Division 1—Information gathering

Clause 192 Application of Division

This clause provides that this Division binds the Crown in all its capacities This will ensure that all Commonwealth departments, authorities and agencies (Commonwealth, State, Territory and Norfolk Island) are bound to comply with this Division.

The clause also extends the operation of the Division to acts, omissions, matters and things outside Australia, whether or not in a foreign country; and all persons, irrespective of their nationality or citizenship.

However, a person is not required to comply with this Division to the extent that doing so would contravene a law of the Commonwealth (other than a law of a Territory).

Clause 193 General power to obtain information

Subclause 193(1) provides that the Secretary may request a person to give information, or to produce a document that is in his or her custody or control, to the Department. The Secretary may only make such a request if it is considered that the information or document may be relevant to a number of specified matters.


Clause 194 Power to obtain information from a person who owes a debt to the Commonwealth

Clause 194 allows the Secretary to request a person who owes a debt to the Commonwealth under or as a result of the social security law or the Farm Household Support Act 1992 to give the Department information, or to produce documents that are in the person’s custody or control, concerning the person’s financial situation or, if the person changes address, to notify the Department of his or her new address within 14 days of moving to that new address.


Clause 195 Obtaining information about a person who owes a debt to the Commonwealth

Clause 195 deals with information or documents that would help the Department locate a person who owes a debt under or as a result of the social security law or the Farm Household Support Act 1992 or that is relevant to the debtor’s financial situation. The Secretary may require a person who may have such information or documents to give the information or documents to the Department.

Clause 196 Obtaining information to verify claims etc.

Subclause 196(1) allows the Secretary to require a person to give information to the Department about a class of persons for the purposes of detecting cases where amounts of social security payment have been paid which should not have been paid, detecting cases where concession cards have been granted to persons to whom they should not have been granted, verifying qualification of persons who have claimed a social security payment and verifying the eligibility of persons who have claimed financial supplement.

Subclause 196(2) specifies the type of information that may be requested about a person included in a class of persons. The list specified in this subclause is the maximum extent of information that may be sought.

Subclause 196(3) provides that the Secretary may specify a class of persons in the notice regardless of whether or not the Secretary can identify any of the persons in that class as being:

• persons who have received, are receiving or have claimed social security payments;

• persons who are holders of concession cards or have made claims for concession cards;

• persons who have applied for financial supplement.

Subclause 196(4) gives the Department 13 weeks in which to decide which (if any) of the information is relevant to the matters specified in subclause 196(1). Under subclauses 196(5) and (6), if the Secretary decides within that period that some or all of the information is not, or is not likely to be, relevant or if such a decision is not made within the 13 weeks period, the Secretary is obliged to ensure that the information and any record of the information is destroyed.

Clause 197 Written notice of requirement

Subclause 197(1) provides that a request under this Division must be by notice in writing given to the person.

Subclause 197(2) provides that the notice may be given personally or by post or by any other manner approved by the Secretary. The notice must specify how the person is to give the information or produce the document to which the requirement relates, within what period of time, to whom the information is to be given and the authority for the notice.

Subclause 197(3) ensures that a person is given at least 14 days within which to provide the information sought by the Department.


Subclause 197(4) provides that the notice may require the person to give the information by appearing before a specified officer to answer questions. If this is the case, a person may not be required to attend before the end of 14 days after the notice is given (subclause 197(5)).

Clause 198 - Offence: failure to comply with requirement

This clause provides that a person must not refuse or fail to comply with a notice to the extent that the person is able to comply.

Clause 199 - Obligations not affected by State or Territory laws

This clause provides that no State or Territory law may operate to prevent a person from giving information, producing a document or giving evidence, that the person is required to give or produce to the Department or an officer for the purposes of the social security law.

Division 2—End-of-employment statements

Clause 200 Request for end-of-employment statement

Clause 200 provides that, if a person’s employment stops, the person may ask his or her former employer to give him or her, in a form approved by the Secretary, a statement about that employment. The term “employment” includes employment under a contract for services.

Clause 201 Offence - failure to give end-of-employment statement

Clause 201 provides that, where a person makes such a request, the former employer must comply with the request as soon as practicable. Failure to comply can result in substantial penalties in the form of fines or imprisonment.

Division 3 – Confidentiality

Clause 202 Operation of Division

The clause provides that nothing in the Division prevents a person from disclosing information to another person if it is disclosed for the purposes of the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989.

The clause also provides that the provisions of the Division relating to the disclosure of information don’t affect the operation of the Freedom of Information Act 1988.


Clause 203 Protection of personal information

Subclause 203(1) provides that a person may obtain protected information for the purposes of the social security law or the Farm Household Support Act 1992.

Subclause 203(2) authorises a person to record, disclose or otherwise use protected information provided that the record, disclosure or use of the information is for the purposes of the social security law or the Farm Household Support Act 1992 or for the purpose for which the information was disclosed to the person under clause 204 or 205 of the Social Security (Administration) Act.

Clause 204 Offence - unauthorised access to information

This clause makes it an offence for a person to intentionally obtain information that the person is not authorised under the social security law, the Farm Household Support Act 1992 or any other lawful to obtain, and the person knows or ought reasonably to know that the information is protected information.

Clause 205 Offence - unauthorised use of protected information

This clause makes it an offence for a person to intentionally record, disclose or otherwise make use of information that the person is not authorised or required under the social security law or the Farm Household Support Act 1992 to record, disclose or use, and the person knows or ought reasonably to know that the information is protected information.

Clause 206 Offence - soliciting disclosure of protected information

This clause makes it an offence for a person (the first person) to solicit the disclosure of protected information from another officer or another person and the disclosure would be in contravention of this Division and the first person knows or ought reasonably to know that the information is protected information. It makes no difference whether any protected information is actually disclosed.

Clause 207 Offence - offering to supply protected information

This clause makes it an offence for a person to:

• supply offer to supply (whether to a particular person or otherwise) information about another person, knowing that the information is protected information;

• hold himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person, knowing that the information is protected information.

However, nothing in this clause renders an officer acting in the exercise or performance of his or her duties, functions or powers under the social security law or the Farm Household Support Act 1992.


Clause 208 Protection of certain documents etc from production to court etc

This clause prevents an officer from having to respond to a request to divulge information collected as part of his or her duties where the request is made by a court, tribunal, authority or person that has the power to request the production of documents or other information and that request is not for the purposes of the social security law, the Farm Household Support Act 1992 or the Child Care Payments A
Act 1997.


Clause 209 Disclosure of information by Secretary

Subclause 209(1) allows for the release of information in certain circumstances even though the release would normally be “barred”. It also provides for the issue of certificates by the Secretary to allow releases where the Secretary thinks that the release would be in the public interest.

The grounds for release are:

• public interest; or

• to the Secretary or head of a Commonwealth Department or authority for the purposes of that Department or authority; or

• express or implied authority; or

• to a competent authority or institution of a foreign country that is a party to a scheduled international social security agreement for any purpose relating to giving effect to that agreement.

Subclause 209(2) obliges the Secretary, when giving certificates to allow releases of information on the basis of the public interest, to act in accordance with guidelines that have been issued by the Minister under clause 186.

Subclause 209(3) obliges the Secretary, when disclosing information to the Secretary or head of a Commonwealth Department or authority for the purposes of that Department or authority; to act in accordance with guidelines that have been issued by the Minister under clause 186.

Subclause 209(4) provides that if an expression used in subclause 209(1) in relation to a foreign country is defined in a scheduled international social security agreement to which that country is a party, the expression has the same meaning, when used in this clause, in relation to that country as it has in the agreement.

Clause 210 Guidelines for exercise of Secretary’s disclosure powers

This clause obliges the Minister to set guidelines for the exercise of the Secretary’s power to give certificates to allow releases of personal information on grounds of public interest or to allow releases of personal information to a Secretary or head of a Commonwealth Department or authority for the purposes of that Department or authority.

The provision also allows the Minister to revoke or vary those guidelines.

The guidelines are subject to disallowance by the Parliament.


Clause 211 Officer’s declaration

This clause provides that an officer must make a declaration in a form approved by the Minister or Secretary if required to do so by the Minister or Secretary.

PART 6—OFFENCES

Clauses 212 to 234

This Part sets out what constitutes an offence under the social security law, the penalties for committing an offence, procedural matters relating to the prosecution of offences and the criminal liability of a body corporate, employer or principal.

This Part operates extra-territorially.

PART 7 – MISCELLANEOUS

Clause 235 Delegation

This clause provides that subject to specific limitations set out in the clause, the Secretary may, by signed instrument, delegate to an officer all or any of the powers of the Secretary under the social security law.


Clause 236 Authorised review officers

This clause provides that the Secretary may authorise an officer to perform duties of an authorised review officer for the purposes of the social security law and that such authorisation must be in writing.


Clause 237 Decisions to be in writing

This clause provides that a decision of an officer under the social security law must be in writing, and that a decision under the social security law is to be taken to be in writing if it is made or recorded by means of a computer.


Clause 238 Notice of decisions

This clause makes it clear that a notice of a decision under the social security law (such as a decision to grant or reject a person's claim or a decision to vary, suspend or cancel a person's payment) is to be taken to have been given to the person if it is delivered to the person personally, or left at, or sent by prepaid post to, the address of the place of residence or business of the person last known to the Secretary (subclause 238(1)).

Subclause 238(2) provides that notice of a decision under a social security law may be given to a person by properly addressing, prepaying and posting the document as a letter. If this procedure is followed, subclause 238(3) provides that notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of post unless the contrary is proved.

Subclause 238(4) provides that this clause only applies to notices of decisions and nothing in this clause affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter.


Clause 239 Payments to Commissioner of Taxation

This clause obliges the Secretary to make deductions from social security payments made to a person if section 218 of the Income Tax Assessment Act 1936 applies. Section 218 of that Act gives the Commissioner of Taxation the discretionary power to require a person who owes money to, or holds money on behalf of, a taxpayer to pay to the Commissioner the amount due by the taxpayer.

Similarly, the Secretary is obliged to make deductions from a social security pension or benefit made to a person if section 72AA of the Child Support (Registration and Collection) Act 1988 applies. Section 72AA of that Act authorises the Child Support Registrar to give a notice to the Secretary instructing that periodic deductions be made from a paying parent's pension or benefit where a person is receiving a pension or benefit and has a child support liability (or arrears of child support).


Clause 240 Judicial notice of certain matters

Subclause 240(1) requires all courts to accept a signature that purports to be attached or appended to any official document if the signature is of a person who holds or has held the office of the Secretary, Director-General of Social Security or Director-General of Social Services or a person who is or was an officer.

Subclause 240(2) requires all courts to accept that such a signature signifies that the person holds or has held an office referred to in subclause 240(1) or is or was an officer.


Clause 241 Documentary evidence

Subclause 241(1) establishes a general evidentiary rule requiring all courts to accept official documents signed by the Secretary or an officer as prima facie evidence of the facts and statements contained within the documents.

Subclause 241(2) establishes the evidentiary rule that a written statement, signed by the Secretary or an officer, that a person was receiving the social security payment on a certain date and at a particular rate shall be received by the courts as prima facie evidence that the person was in receipt of the social security payment at that time and at that rate.


Clause 242 Annual report

This clause provides that, as soon as practicable after 30 June each year, the Secretary must prepare and give to the Minister a report on the administrative operation of the social security law during the year that ends on that 30 June.

The Minister is obliged to make sure that a copy of the report is presented to each House of Parliament within 15 sitting days of that house after the day on which the Minister receives the report.

Clause 243 Appropriation

This clause provides that payments of social security under the social security law, and payments by the Commonwealth to financial corporations under the Student Financial Supplement Scheme established under Chapter 2B of the 1991 Act, must be made out of the Consolidated Revenue Fund, which is appropriated accordingly.


Clause 244 Regulations

Subclause 244(1) provides that the Governor General may make regulations that are consistent with the provisions in the Social Security (Administration) Act setting out matters that are:

• required or allowed by the Social Security (Administration) Act; or

• necessary or convenient for carrying out or giving effect to provisions in the Social Security (Administration) Act.

The regulations may prescribe penalties up to a specified maximum number of penalty units for any breach of the regulations.

Subclause 244(2) provides, but not so as to limit subclause 244(1), that the matters that may be prescribed in regulations may deal with:

• ways (other than ways involving the use of a document) in which a claim, application, submission, declaration or determination may be made or withdrawn, or information or a notice, statement, certificate, direction or consent may be given, for the purposes of a provision of the social security law; and

• matters relating to the doing of anything referred to above, including matters relating to the proof of the doing of things in such a way.

Subclause 244(3) makes it clear that the reference in subclause 244(2) to ways by which something may be made or given includes, but is not limited to the use of electronic equipment and ways that involve the use of a telecommunications system.

Subclause 244(4) provides that anything made or given in a way prescribed by regulations made by virtue of subclause 244(2) is taken, for the purposes of the social security law, to have been made or given in writing and to have been made in accordance with the Social Security (Administration) Act.

Subclause 244(5) provides that the reference in paragraph 244(2)(a) to a determination does not include a reference to a determination that is a disallowable instrument.

PART 8 – TRANSITIONAL AND SAVING PROVISIONS

This Part contains a number of clauses that are necessary to provide for the transition from all of the social security law being contained in the Social Security Act 1991 immediately before 20 March 2000 to that social security law being contained in both the Social Security Act 1991 and the Social Security (Administration) Act 1999 from 20 March 2000.

PART 9 – TEMPORARY ROUNDING-OFF PROVISIONS

This Part provides rules for rounding off of certain instalments of social security payments.

SCHEDULES

Schedule 1 Dictionary

This Schedule provides a dictionary for certain definitions of terms used in the Social Security (Administration) Act.


Schedule 2 Rules for working out start day

A person’s start day sets the day from which a person may be paid.

The various rules for calculating a start day for a person’s payment are set out in Schedule 2.


Schedule 3 Constitution and membership of the Social Security Appeals Tribunal

Schedule 3 sets out the following matters in relation to the Social Security Appeals Tribunal (the SSAT):

• membership of the SSAT, including matters relating to appointments;

• organisation of the business of the SSAT;

• administrative matters (for example, remuneration of SSAT members disclosure of interests, delegation).

The Schedule also contains some savings provisions to deal with the transfer of provisions dealing with the SSAT from the 1991 Act to the Social Security (Administration) Act.


Schedule 4 Forms of oath and affirmation

Schedule 4 sets out the forms of oath and affirmation to be used by the Executive Director and Directors and Members of the SSAT.

SOCIAL SECURITY (INTERNATIONAL AGREEMENTS) BILL 1999

NOTES ON CLAUSES

PART 1—PRELIMINARY

The Social Security (International Agreements) Bill 1999 accompanies the Social Security (Administration) Bill.


Clause 1 Short title

This clause provides that Bill may be cited as the Social Security (International Agreements) Act 1999.


Clause 2 Commencement

This clause provides for the commencement of the provisions of the Bill.


Clause 3 Interpretation

This clause contains principal interpretative provisions for the Social Security (International Agreements) Act and provides that any expressions used in this Act and that are also used in the Social Security Act 1991 (the 1991 Act) have the same meaning as in the 1991 Act unless a contrary intention appears. The clause also provides that a reference in this Act to a provision of the social security law is a reference to a provision of this Act and any other Act forming part of the social security law.

Clause 4 Social security law

This clause provides that the Social Security (International Agreements) Act 1999 (once enacted) forms part of the social security law.

PART 2—INTERNATIONAL SOCIAL SECURITY AGREEMENTS

Clause 5 Scheduled international social security agreements

This clause sets out what is a scheduled social security agreement for the purposes of the social security law.


Clause 6 Overriding of social security law by scheduled international social security agreements

This clause provides that the provisions of a scheduled social security agreement prevail over the social security law but only to the extent that the agreement provision is in force and affects the operation of the social security law.


Clause 7 Amendment of Schedules by regulations

This clause provides that regulations may be made to amend a Schedule to the Act so as to set out in the Schedule the text of an amending agreement that amends or otherwise affects the operation l of another agreement set out in the Schedule. However, any regulations so made may not come into operation any earlier than the day on which the amending agreement comes into force for Australia.


Clause 8 Addition of new scheduled international social security agreements

This clause will facilitate new international social security agreements (dealing with reciprocity in social security or superannuation matters) being added to the Act by way of regulation. However, any regulations so made may not come into operation any earlier than the day on which the agreement concerned comes into operation for Australia.


Clause 9 Repeal of schedule

This clause provides that Schedules of the Act may be repealed by regulation.


Clause 10 Parenting payment claimed under agreement

This clause sets out special rules that are to apply in the case of a person who is outside Australia lodging a claim for parenting payment under the authority of a scheduled international social security agreement.


Clause 11 Portability of international agreement pension or allowance

This clause provides that a social security payment payable under a scheduled international social security agreement is not payable to a person for a period when the person is outside Australia unless the agreement provides otherwise.


Clause 12 Rate of pension or allowance payable under agreement where rate to be determined under law of Australia

This clause provides that if a person’s social security payment is payable to them under a scheduled international social security agreement and the person is outside Australia and the agreement provides for the rate of the social security payment to be determined according to Australian law, the rate of payment is worked out in accordance with Part 3 of this Act.

The clause also provides that a reference in the agreement to a person’s period of residence in Australia is taken to be a reference to the period of the person’s working life residence for the purposes of this Act.

PART 3—CALCULATION OF INTERNATIONAL AGREEMENT PORTABILITY RATES

This Part sets out how to calculate a person’s international agreement portability rate.

Division 1 – Overall rate calculation process

This Division sets out the overall rate calculation process in clauses 13 and 14.

Division 2 – Australian working life residence

This Division deals with how to work out a person’s working life residence.

Division 3 – Residence factor

This Division deals with how to work out a person’s residence factor.

PART 4—REGULATIONS

This Part allows the making of regulations.

SCHEDULES

The Bill, as introduced, contains 11 schedules. These schedules set out the existing international social security agreements with:

• the United Kingdom (Schedule 1);

• Italy (Schedule 2);

• New Zealand (Schedule 3);

• Canada (Schedule 4);

• Spain (Schedule 5);

• Malta (Schedule 6);

• The Netherlands (Schedule 7);

• Ireland (Schedule 8);

• Portugal (Schedule 9);

• Austria (Schedule 10)

• Cyprus (Schedule 11).

SOCIAL SECURITY (ADMINISTRATION
AND INTERNATIONAL AGREEMENTS)
(CONSEQUENTIAL AMENDMENTS) BILL 1999

NOTES ON CLAUSES

The Social Security (Administration and International Agreements) (Consequential Amendments) Bill 1999 accompanies the Social Security (Administration) Bill 1999 and the Social Security (International Agreements) Bill 1999.


Clause 1 Short title

This clause provides that Bill may be cited as the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999.


Clause 2 Commencement

This clause provides for the commencement of the provisions of the Bill.


Clause 3 Schedules

This clause gives effect to the Schedules to the Bill.


Schedule 1 Amendments consequential upon the enactment of the Social Security (Administration) Act 1999

This Schedule makes amendments and repeals to the Social Security Act 1991 as a consequence of the enactment of the Social Security (Administration) Bill.


Schedule 2 Amendments consequential upon the enactment of the Social Security (International Agreements) Act 1999

This Schedule makes an amendment and repeals provisions of the Social Security Act 1991 as a consequence of the enactment of the Social Security (International Agreements) Bill 1999.


Schedule 3 Amendments of the Social Security (Administration) Act 1999

Schedule 3 provides for the repeal of Part 9 of the Social Security (Administration) Act 1999 as a consequence of the commencement of clause 53 of that Act which contains a single rounding provision that applies to all social security payments. These amendments are to commence 1 July 2000.

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