Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
SOCIAL SERVICES LEGISLATION AMENDMENT
(WELFARE REFORM) BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by the authority of the
Minister for Social Services, the Honourable Dan Tehan MP)
SOCIAL SERVICES LEGISLATION AMENDMENT
(WELFARE REFORM) BILL 2017
Amendments to be moved on behalf of the Government
OUTLINE
Amendments to be moved on behalf of the Government to Schedule 11 of the
Social Services Legislation Amendment (Welfare Reform) Bill 2017. These
amendments will retain and amend the current intent to claim provisions in the
social security law so that these provisions will apply to a person in vulnerable
circumstances, being a person who is included in a class of persons
determined by the Minister in a legislative instrument.
These amendments also remove the requirement for the Secretary to give a
person a written notice acknowledging that the Department of Human
Services has been contacted in relation to the making of the claim.
Financial impact statement
These amendments to Schedule 11 will not alter the financial impact of the
Bill.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
supplementary explanatory memorandum
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Schedule 11 - Removal of Intent to claim provisions
SOCIAL SERVICES LEGISLATION AMENDMENT
(WELFARE REFORM) BILL 2017
Amendments to be moved on behalf of the Government
Schedule 11 - Removal of Intent to claim provisions
Summary
The amendments to Schedule 11 of the Bill will retain and amend the current
intent to claim provisions in the social security law. These provisions will now
apply to a person in vulnerable circumstances, being a person who is included
in a class of persons determined by the Minister in a legislative instrument.
The amendments also remove the requirement for the Secretary to give a
person a written notice acknowledging that the Department of Human
Services has been contacted in relation to the making of a claim for a social
security payment or concession card.
Background
The deemed claim provisions in relation to a person contacting the
Department of Human Services about a claim for a social security payment or
concession card are set out under sections 13 and 14 of the Social Security
Administration Act.
These provisions allowed leniency for claimants by effectively backdating their
entitlement to payment to the date they initially contacted the Department of
Human Services and indicated their intention to claim.
These provisions were introduced at a time when claim forms were mailed to
claimants, completed by the claimants, and then returned by mail to the
Department of Human Services. With the advent of technology that allows
people to gather and submit documentation quickly and easily (such as online
banking, email, and electronic storage of information), and the progressive
rollout of online claiming, this level of assistance is generally no longer
necessary or appropriate.
However, it is acknowledged that there may be occasions when a person in
vulnerable circumstances may not be able to lodge a claim or provide the
required documentation in a timely manner. Accordingly, although the
deemed claim provisions will no longer apply to claimants generally, these
amendments will ensure that sections 13 and 14 will continue to apply to a
vulnerable claimant, being a person included in a class of persons determined
by the Minister by legislative instrument.
Examples of vulnerable circumstances will include, but not be limited to, crisis
situations where the claimant is unable to fully complete a claim due to being
homeless, affected by a major disaster or family and domestic violence, a
recent humanitarian entrant or recently released from prison or psychiatric
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Schedule 11 - Removal of Intent to claim provisions
confinement. Vulnerable circumstances may also relate to people in ongoing
situations such as young people who are unable to live at home.
The amendments will allow the Department of Human Services to determine,
on a case by case basis, who is a vulnerable claimant. Claimants in
vulnerable circumstances who have a genuine difficulty in providing
documents with the claim will be able to lodge a claim and to provide any
required documents subsequently. The actual claim date will be the
lodgement date, and the deemed claim date (under sections 13 and 14) will
be the contact date where applicable.
These amendments will also remove the requirement for the Secretary to
provide a written notice acknowledging that the Department of Human
Services has been contacted in relation to the person making a claim for a
social security payment. This will enable the person to be taken to have
made a claim for a social security payment or concession card by the
person's actions alone, rather than be dependent on any action by the
Department.
Explanation of the changes
Amendment (1) omits Schedule 11 (Removal of intent to claim provisions)
and substitutes new Schedule 11 (Intent to claim provisions).
Schedule 11 - Intent to claim provisions
Social Security Administration Act
Items 1, 3, 5 and 7 insert new paragraphs 13(1)(aa), 13(2)(aa), 13(3)(aa)
and 13(3A)(aa) after paragraphs 13(1)(a), 13(2)(a), 13(3)(a) and 13(3A)(a)
respectively. These items provide that, for the purposes of the social security
law, a person is, on the day on which the Department is contacted, included in
a class of persons determined in an instrument under section 14A. This
requirement is in addition to the other requirements set out in
subsections 13(1), 13(2), 13(3) and 13(3A).
Items 2, 4, 6 and 8 repeal paragraphs 13(1)(c), 13(2)(c), 13(3)(c) and
13(3A)(c) respectively. These items remove the requirement for the Secretary
to provide a written notice acknowledging that the Department of Human
Services has been contacted in relation to the person making a claim for a
social security payment.
Items 9, 11, 13 and 15 insert new paragraphs 14(1)(aa), 14(2)(aa),
14(3)(aa) and 14(3A)(aa) after paragraphs 14(1)(a), 14(2)(a), 14(3)(a) and
14(3A)(a) respectively. These items provide that, for the purposes of the
social security law, a person is, on the day on which the Department is
contacted, included in a class of persons determined in an instrument under
section 14A. This requirement is in addition to the other requirements set out
in subsections 14(1), 14(2), 14(3) and 14(3A).
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Schedule 11 - Removal of Intent to claim provisions
Items 10, 12, 14 and 16 repeal paragraphs 14(1)(c), 14(2)(c), 14(3)(c) and
14(3A)(c) respectively. These items remove the requirement for the Secretary
to provide a written notice acknowledging that the Department of Human
Services has been contacted in relation to the person making a claim for a
concession card.
Item 17 inserts new section 14A after section 14. New section 14A provides
for determinations made by the Minister for the purposes of sections 13 and
14. Under new section 14A, the Minister may, by legislative instrument,
determine a class of persons for the purposes of paragraphs 13(1)(aa),
13(2)(aa), 13(3)(aa), 13(3A)(aa), 14(1)(aa), 14(2)(aa), 14(3)(aa) and
14(3A)(aa).
This will enable the Minister to define a vulnerable claimant for the purposes
of these provisions. For example, vulnerable circumstances may include,
crisis situations where the claimant is unable to fully complete a claim due to
being homeless, affected by a major disaster or family and domestic violence,
a recent humanitarian entrant or recently released from prison or psychiatric
confinement. Vulnerable circumstances would also relate to people in ongoing
situations such as young people who are unable to live at home.
Item 18 is an application provision. The amendments made by this Schedule
apply in relation to contacts to the Department made on or after
commencement of this item.
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Statements of compatibility with human rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
SOCIAL SERVICES LEGISLATION AMENDMENT (WELFARE REFORM)
BILL 2017
Schedule 11 - Removal of Intent to claim provisions
The amendments are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of
the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the amendments
These amendments will amend the Social Security Administration Act by
retaining but amending the intent to claim provisions, which deem a claim to
be made on the day on which a person initially contacted the Department of
Human Services, to apply to a vulnerable claimant only. The amendments
include an instrument making power to allow a legislative instrument to define
a vulnerable claimant for the purposes of the intent to claim provisions.
Examples of vulnerable circumstances will include, but not be limited to, crisis
situations where the claimant is unable to fully complete a claim due to being
homeless, affected by a major disaster or family and domestic violence, a
recent humanitarian entrant or recently released from prison or psychiatric
confinement. Vulnerable circumstances will also relate to people in ongoing
situations such as young people who are unable to live at home.
The amendments will allow the Department of Human Services discretionary
power to determine on a case by case basis who is a vulnerable claimant.
Claimants in vulnerable circumstances who have a genuine difficulty in
providing documents with the claim will be able to lodge a claim and to
provide any required documents subsequently. The actual claim date will be
the lodgement date, and the deemed claim date (under the intent to claim
provisions) will be the contact date where applicable.
Human rights implications
These amendments engage human rights related to the right of everyone to
social security in Article 9, and the right of everyone to an adequate standard
of living for an individual and their family, including adequate food, clothing
and housing, and the continuous improvement of living conditions, in Article
11 of the International Covenant on Economic, Social and Cultural Rights.
Limiting the deemed claim provisions to apply to a vulnerable claimant only
will not remove access to the range of social security payments that currently
attract these provisions. Access to these payments will remain, regulated by
the same qualification rules in place before the limiting of the deemed claim
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Statements of compatibility with human rights
provisions to a vulnerable claimant only. For claimants generally, payments
will now be made, if eligible, from the date on which a person submits all
material necessary to be assessed that is within their control, with the aim of
maintaining the general integrity of the social security system.
For a vulnerable claimant, being a person included in a class of persons
determined by the Minister by legislative instrument, the deemed claim
provisions will continue to apply. This acknowledges that there may be
occasions when a person in vulnerable circumstances may not be able to
lodge a claim or provide the required documentation in a timely manner.
Conclusion
These amendments are compatible with human rights because to the extent
that they may tighten the claim process, the stricter requirements are
reasonable, necessary and proportionate and affected people are otherwise
provided for.
(Circulated by the authority of the
Minister for Social Services, the Hon Dan Tehan MP)
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