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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
SOCIAL SERVICES LEGISLATION AMENDMENT
(OVERSEAS WELFARE RECIPIENTS INTEGRITY PROGRAM) BILL 2019
REVISED EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Social Services and Families, Senator the Hon Anne Ruston)
SOCIAL SERVICES LEGISLATION AMENDMENT
(OVERSEAS WELFARE RECIPIENTS INTEGRITY PROGRAM) BILL 2019
OUTLINE
The Social Security Legislation Amendment (Overseas Welfare Recipients Integrity
Program) Bill 2019 (the Bill) gives effect to a 2018-19 MYEFO measure, and will
amend the Social Security (Administration) Act 1999 to introduce a requirement for
certain welfare recipients aged 80 years and over, who have been residing
permanently overseas for at least two years, to provide a proof of life certificate at
least once every two years.
FINANCIAL IMPACT STATEMENT
MEASURE FINANCIAL IMPACT OVER THE FORWARD
ESTIMATES from 2019-20 to 2022-23*
Schedule 1 - Proof Of Life $219 million
Certificates
*These savings represent DSS administered impacts only.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
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SOCIAL SERVICES LEGISLATION AMENDMENT
(OVERSEAS WELFARE RECIPIENTS INTEGRITY PROGRAM) BILL 2019
NOTES ON CLAUSES
Abbreviations used in this explanatory memorandum
Social Security Act means the Social Security Act 1991;
Social Security Administration Act means the Social Security
(Administration) Act 1999;
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Schedule 1 - Proof of Life Certificates
Schedule 1 - Proof of Life Certificates
Summary
This Schedule introduces a requirement for certain welfare recipients aged 80 years
and over, who have been absent from Australia for at least two years, to provide a
proof of life certificate at least once every two years in accordance with a notice sent
by the Secretary. This Schedule also outlines the consequences for not giving the
Secretary a proof of life certificate which complies with the legislative requirements,
including suspension and cancellation of payment. A payment may be resumed,
with arrears paid, following suspension or cancellation where certain legislative
requirements are met.
Background
There are approximately 96,000 people residing permanently overseas receiving an
Australian social security payment, with the majority receiving the Age Pension.
Currently, Services Australia (formerly the Department of Human Services) mostly
relies on voluntary reporting by family members or friends of the death of a pension
recipient overseas. Payments can continue until this is reported despite there no
longer being a legal entitlement.
Administrative data shows that there is a disparity in the death rate of pensioners
aged 80 years and above overseas, compared to pensioners in Australia. This
disparity is significantly large enough to suggest that the Services Australia is not
being notified in all cases, or in a timely manner, when a person dies overseas.
This Schedule introduces a requirement for welfare recipients aged 80 years and
over, who have been absent from Australia for at least two years, and receiving
certain social security payments, to give a proof of life certificate at least once every
two years when notified by the Secretary. Similar life certificates or proof of life
requests are commonly used to confirm eligibility for pensions by European
countries, and have been in use in some countries for more than a decade. Some
countries use these certificates annually or biennially, and the process is not
restricted to a particular age group.
Welfare recipients who are recipients of Age Pension, Disability Support Pension,
Widow B Pension, Wife Pension and Carer Payment, and meet the relevant criteria,
will be affected. This will include those recipients who have been residing overseas
for at least two years under the following provisions:
those whose payment has an unlimited portability period under the
Social Security Act; or
those receiving a payment under one of Australia's international social
security agreements.
No amendments to international social security agreements are required as a result
of these changes.
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Schedule 1 - Proof of Life Certificates
Under section 63 of the Social Security Administration Act, affected recipients will be
required to give a proof of life certificate that complies with the legislative
requirements within 13 weeks of being given a notice by the Secretary.
The Schedule outlines certain minimum requirements which must be included in the
proof of life certificate. One of these requirements is for the proof of life certificate to
be certified by an authorised certifier. A list of authorised certifiers will be specified
by the Secretary by legislative instrument. The legislative instrument will provide
sufficient flexibility to add additional third parties to the instrument given that
equivalent classes of persons across different jurisdictions may be hard to initially
define and identify. Examples of third parties may include a judge or magistrate, a
medical doctor, or authorised consular staff at an Australian embassy, consulate or
high commission.
Where the pensioner does not return a proof of life certificate to the Secretary that is
compliant with section 63, or the pensioner does not enter Australia within the
13-week period from the date of the notice, under section 64 of the Social Security
Administration Act, the pensioner's payment will not be payable. As a consequence
the payment will be suspended for a period of up to 13 weeks under section 80 of
the Social Security Administration Act.
Where a pensioner fails to give a proof of life certificate that complies with the
legislative requirements, or the pensioner does not enter Australia within the
13-week suspension period, the pensioner's payment will be cancelled under section
80 (26 weeks from the date of the notice). These periods are consistent with
suspension and cancellation arrangements which currently apply for failing to comply
with other kinds of notices given by the Secretary for the purposes of social security
law.
Should recipients give a proof of life certificate after their payment has been
suspended or cancelled, the new 'resumption of payment after cancellation or
suspension - provision of proof of life certificate' provision will apply. Section 108
has been amended, to include a determination by the Secretary under new section
85AA as a favourable determination. By requiring the Secretary to undertake a
review under section 126 of the Social Security Administration Act, and as a result of
the review, to determine that the suspended or cancelled payment is payable as if
the payment had never been suspended or cancelled, the date of effect provisions in
section 109 are enlivened. Section 109 will apply in the calculation of the arrears
payable to a recipient after their payment has been resumed.
Existing review mechanisms in the Social Security Administration Act will also apply.
The amendments made by Part 1 of this Schedule commence on 1 October 2019 if
the Act receives Royal Assent before 19 September 2019. Where the Act receives
Royal Assent on or after 19 September 2019, Part 1 of this Schedule will commence
on the day three months after the Act receives Royal Assent..
The amendments made by Part 2 of this Schedule commence on the later
of 20 March 2020 and immediately after the commencement of Part 1 of Schedule 1.
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Explanation of the changes
Part 1 - General amendments
Amendments to the Social Security Act
Item 1 omits the reference in subsection 146V(1) of the Social Security Act, and
substitutes it with 'sections 85 and 85AA'. This substitution accounts for the new
subsection 85AA which will enable the resumption of Wife Pension.
Item 2 omits the reference in subsection 362A(3) of the Social Security Act, and
substitutes it with 'sections 85 and 85AA'. This substitution accounts for the new
subsection 85AA which will enable the resumption of Widow B.
Amendments to the Social Security Administration Act
Item 3 inserts new subsections 63(2AA), (2AB), and (2AC) to enable the
Secretary to give a notice to a person requiring the person to give the Secretary a
proof of life certificate.
New subsection 63(2AA) outlines the cohort to whom the Secretary may give a
notice. The relevant cohort includes a person who:
is 80 years and over, and
is a recipient of either:
o Age Pension,
o Carer Payment,
o Disability Support Pension,
o Widow B Pension, or
o Wife Pension, and
has been continuously absent from Australia throughout the previous 2 years.
New subsection 63(2AB) specifies that a person to whom the subsection applies has
13 weeks, beginning from the date the Secretary gives the notice, to give the
Secretary a proof of life certificate that relates to the person to whom the notice is
given. Only a proof of life certificate, which has been completed and certified during
the 13-week period from the date the Secretary issued the notice, will be acceptable.
However, if a person enters Australia within this 13-week period, the person is not
required to give the Secretary a proof of life certificate. This does not require the
person to resume residency in Australia.
New subsection 63(2AC) provides that the Secretary must give a notice to a person
who is included in the cohort a proof of life certificate at least once every two years.
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Item 4 amends subsection 63(5) and provides that the Secretary may notify a person
to give a proof of life certificate by sending the notice by post to the postal address
last known to the Secretary, or in any other way which the Secretary considers
appropriate. The amendment to subsection 63(7) adopts the consequence which
applies to other section 63 notice provisions. That is, if the notice does not inform
the person of the effect of section 64 (the effect of failing to comply with the
requirement in the notice), the consequences in subsections 64(1) and (5) do not
apply.
Item 5 inserts new section 63A, detailing the minimum requirements that a proof of
life certificate must include. A proof of life certificate must be in a form approved by
the Secretary and must:
be expressed as relating to the person, and
include a statement to the effect that the person is alive, and
be signed and dated by the person, or be signed and dated by another person
if the form allows for another person to sign on the person's behalf provided
that one or more specified requirements are met, and
include a statement by an authorised certifier that the authorised certifier:
o has sighted the person who is in their physical presence. Sighting the
person through video conferencing will not comply with this
requirement, and
o has verified the identity of the person using the method, or one of the
methods set out on the approved form, and
o is satisfied that the person is alive; and
be signed and dated by the authorised certifier.
A proof of life certificate must also include any other information as required by the
approved form.
Subsection 63A(6) provides that the statement made under subsection 63A(2) to the
effect that the person is alive must be signed and dated by the person within 7 days
of the statement which the authorised certifier makes under subsection 63A(4).
New subsection 63A(7) states that section 25C of the Acts Interpretation Act 1901
(Acts Interpretation Act) does not apply. Section 25C of the Acts Interpretation Act
provides that 'where an Act prescribes a form, then strict compliance with the form is
not required and substantial compliance is sufficient'. All conditions of the proof of
life certificate must be met in order for the Secretary to be satisfied that a proof of life
certificate has been given. This ensures that the integrity of this compliance
mechanism is upheld, and that Australian social security payments are only being
paid to recipients who are alive.
New subsections 63A(8), (9) and (10) detail who is an authorised certifier.
Subsection (9) provides the Secretary with a power to make a legislative instrument,
to determine one or more classes of persons for the purposes of subsection (8). In
accordance with subsection 2(2) of the Acts Interpretation Act, new subsection (10)
has been inserted to avoid doubt and ensure that the legal requirements for an
authorised certifier have extraterritorial effect and apply to the certifier even if that
certifier is outside Australia.
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Item 6 amends paragraphs 64(1)(b) and (4)(b), to apply the consequences of failing
to comply with a notice given under new subsection 63(2AB). Under subsection
64(1), provided all the requirements are met, if a person fails to comply with a notice
given under the new subsection 63(2AB), the person's payment will not be payable.
Under subsection 64(4), if the Secretary is satisfied that it is no longer reasonable for
the requirement in the notice to apply, the Secretary may determine on and after a
day specified by the Secretary that subsection 64(1) no longer applies and that the
payment is payable.
Item 7 adds '--general' to the heading of section 85, in order to differentiate it from
the following new section 85AA.
Item 8 adds new section 85AA, which details the conditions which must be met for
resumption of a payment to occur after suspension or cancellation.
Subsection 85AA(1) outlines the conditions required for the resumption of payment
after suspension. The Secretary must, under section 126 of the Social Security
Administration Act, review the suspension of a person's social security payment, and
determine as a result of the review that the social security payment is payable as if it
had never been suspended where:
a person's social security payment is suspended under section 80 due to the
person's failure to give a proof of life certificate in compliance with a notice
under subsection 63(2AB), and
either:
o the person gives the Secretary a proof of life certificate which was
completed during the 26-week period before the certificate is given to
the Secretary, or
o the person returns to Australia.
A similar resumption mechanism is covered by subsection 85AA(3) in relation to
Wife Pension. The Secretary must, under section 126 of the Social Security
Administration Act, review the suspension of a person's Wife Pension, and
determine as a result of the review, that Wife Pension is payable as if the payment
had never been suspended where:
a person's Wife Pension is suspended under section 80 due to their partner's
failure to give a proof of life certificate in compliance with a notice under
subsection 63(2AB), and
either:
o the person's partner gives the Secretary a proof of life certificate which
was completed during the 26-week period before the certificate is given
to the Secretary, or
o the person's partner returns to Australia.
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The currency of the proof of life certificate to the 26-week period ending on the date
that it is given to the Secretary is to ensure that old certificates cannot be used. This
takes into account the 13-week period in which a person is required to give the
completed proof of life certificate, as well as the 13-week suspension period before
being cancelled. Alternatively, payment may be resumed without giving a proof of
life certificate where the person returns to Australia.
Subsection 85AA(2) outlines the conditions required for resumption of payment after
cancellation. The Secretary may, under section 126 of the Social Security
Administration Act, review the cancellation of a person's social security payment,
and determine as a result of the review that the social security is payable as if the
payment had never been cancelled where:
a person's social security payment is cancelled under section 80 due to the
person's failure to give a proof of life certificate in compliance with a notice
under subsection 63(2AB), and
the person gives the Secretary a proof of life certificate which was completed
during the 12-month period before the certificate is given to the Secretary.
Under subsection 85AA(4), the Secretary must, under section 126 of the Social
Security Administration Act, review a person's Wife Pension, and as a result of the
review, determine that Wife Pension is payable as if the payment had never been
cancelled where:
a person's Wife Pension is cancelled under section 80 due to the person's
partner's failure to give a proof of life certificate in compliance with a notice
under subsection 63(2AB), and
the person's partner gives the Secretary a proof of life certificate which was
completed during the 12-month period before the certificate is given to the
Secretary.
The currency of the proof of life certificate to the 12-month period ending on the date
that it is given to the Secretary is to ensure that old certificates cannot be used. This
takes into account the 13-week period in which a person is required to give the proof
of life certificate, the 13-week suspension period before being cancelled and the 13
weeks during which a person is able to request a review after their payment has
been cancelled.
The date of effect provisions under section 109 are enlivened by reviewing under
section 126 the suspension or cancellation of a person's payment, and determining
as a result of that review that the person's payment is payable as if it had never been
suspended or cancelled.
The intent of determining that the social security payment is payable as if the
payment had never been suspended or cancelled is to ensure that recipients who
meet the requirements continue receiving the rate of pay they were previously
entitled to prior to suspension or cancellation. Additionally, any grandfathering
arrangements which may have applied to their payment prior to its suspension or
cancellation will be reinstated.
8
Item 9 amends the heading of Part 3, Division 9, to reference the new section 85AA.
Item 10 amends section 108 to insert new section 85AA into the definition of a
favourable determination, for the purposes of the Part 9, Subdivision B.
Item 11 adds in the definition of 'proof of life certificate' into Subclause 1(1) of
Schedule 1. It defines 'proof of life certificate' as having the meaning given by
section 63A.
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Part 2 - Cessation of widow B pension and wife pension
Amendments to the Social Security Administration Act
Item 12 inserts an 'and' at the end of subparagraph 63(2AA)(b)(iii) to account for the
repeal of new subparagraphs 63(2AA)(b)(iv) and (v), and new subsections 85AA(3)
and (4) from 20 March 2020 in the following Items.
Items 13 and 14 repeal the new subparagraphs 63(2AA)(b)(iv) and (v), and new
subsections 85AA(3) and (4) from 20 March 2020, as Widow B Pension and
Wife Pension are being ceased from that date. Repealing these new subparagraphs
and subsections aligns with the amendments made by Schedules 2 and 3 of the
Social Services Legislation Amendment (Welfare Reform) Act 2018, which
commences on 20 March 2020.
10
Statement 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
(OVERSEAS WELFARE RECIPIENTS INTEGRITY PROGRAM) BILL 2019
SCHEDULE 1 - PROOF OF LIFE CERTIFICATES
This Schedule is 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 Schedule
This Schedule strengthens the integrity of social security payments by requiring
overseas pension recipients aged 80 years and over, who have been living overseas
for at least two years, to provide a proof of life certificate at least once every two
years.
Human rights implications
This Schedule has considered the human rights implications particularly with
reference to the right to social security contained within Article 9 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR). It is concluded that
the Schedule does not place limitations on human rights.
This Schedule requires Australian pensioners residing overseas who are 80 years of
age and over to provide a proof of life certificate every two years to continue to
receive their payment.
Right to social security
This Schedule engages the right to social security contained in article 9 of the
ICESCR.
The right to social security requires that a system be established under domestic
law, and that public authorities must take responsibility for the effective
administration of the system. The social security system must provide a minimum
essential level of benefits to all individuals and families who meet the eligibility and
qualification requirements.
The Schedule limits a person's access to social security in situations where they
meet all other relevant criteria for social security benefits, but they live overseas and
do not provide a proof of life certificate.
The purpose of the Schedule is to uphold the integrity of the social security system,
by ensuring that deceased individuals overseas who are receiving welfare benefits
do not continue to receive those benefits when they have passed away.
11
Statement of compatibility with human rights
The requirement of overseas pension recipients to complete and return a proof of life
certificate does not change the qualification or rate payable to a recipient. This
measure requires Australian pensioners, who reside overseas, to confirm that they
are alive to continue receiving their pension. This safeguard confirms that the social
security system remains appropriately targeted to financially support eligible
overseas pension recipients.
Relevant pensioners overseas who do not give the proof of life certificate will have
their pension stopped. Pensioners will be given 13 weeks to respond to a notice to
give a proof of life certificate. If there is no response, their pension would be
suspended for 13 weeks. After the 13-week suspension period has elapsed and the
pensioner has not returned to Australia or contacted the Secretary, their pension
would be cancelled.
To mitigate the risk that some pensioners may make contact after their payment is
cancelled, the Secretary of the Department of Social Services will have the discretion
to reinstate the payment without requiring the pensioner to return to Australia to
reclaim. A pensioner who has their payment reinstated would be paid any arrears to
which they are entitled.
If a pensioner living overseas does not receive the proof of life request because their
postal address is not correct, it is expected that they will make contact with the
Services Australia following the suspension of their payment. This contact would
enable the Services Australia to provide the recipient with advice on completing the
proof of life certificate and updating the recipients' contact details in their records.
All recipients of welfare payments, including those residing permanently overseas,
have an obligation to advise the Services Australia of any change in their
circumstances, including changes to their residential or postal address.
As many Age Pensioners in this age cohort residing permanently overseas also
receive a pension payment from their country of residence, their Australian pension
is unlikely to be their only means of financial support.
Overseas pensioners will have a range of options available to have their certificate
verified. These options may include, but are not limited to, a judge or magistrate of a
law court, a medical doctor who is registered or licensed to practice in that country,
or an Australian official at an embassy, consulate or high commission. This will
provide overseas pensioners with multiple options for verifying their proof of life
certificates, making this process as easy as possible. A list of authorised certifiers
will be specified by the Secretary by legislative instrument. The legislative
instrument will provide sufficient flexibility to add additional third parties to the
instrument given that equivalent classes of persons across different jurisdictions may
be hard to initially define and identify.
12
Statement of compatibility with human rights
To the extent that the changes in this Schedule may limit the right to social security,
these limitations are reasonable and proportionate to the policy objective of ensuring
a sustainable and well-targeted payment system into the future.
Right to equality and non-discrimination
To avoid doubt, this Schedule is compatible with the right to equality and non-
discrimination contained in articles 2 and 26 of the International Covenant on Civil
and Political Rights (ICCPR).
Article 2(1) of the ICCPR obligates each State party to respect and ensure to all
persons within its territory and subject to its jurisdiction the rights recognised in the
Covenant without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status (see Human Rights Committee (CCPR) General Comment No. 18).
Article 26 not only entitles all persons to equality before the law as well as equal
protection of the law, but also prohibits any discrimination under the law and
guarantees to all persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status (see CCPR General Comment
No. 18).
It is important to note that not all differential treatment will be considered
discriminatory. The Committee on Economic, Social and Cultural Rights has
provided the following commentary on when differential treatment will be considered
discriminatory:
Differential treatment based on prohibited grounds will be viewed as
discriminatory unless the justification for differentiation is reasonable and
objective. This will include an assessment as to whether the aim and
effects of the measures or omissions are legitimate, compatible with the
nature of the Covenant rights and solely for the purpose of promoting the
general welfare in a democratic society. In addition, there must be a
clear and reasonable relationship of proportionality between the aim
sought to be realised and the measures or omissions and their effects. A
failure to remove differential treatment on the basis of a lack of available
resources is not an objective and reasonable justification unless every
effort has been made to use all resources that are at the State party's
disposition in an effort to address and eliminate the discrimination, as a
matter of priority (CESCR, General Comment No. 20).
This Schedule requires Australian pensioners overseas who are 80 years of age to
provide a proof of life certificate every two years to continue to receive their payment.
There will be no differential treatment on the basis of race, colour, sex, language,
religion, political or other opinion, national or social origin, property or birth.
Recipients residing overseas generally have no contact with other Australian
Government agencies, such as the Australian Taxation Office or Medicare, which
could otherwise be used to verify they are still alive.
13
Statement of compatibility with human rights
Voluntary third party reporting (such as by family members) is the primary method
that the Services Australia learns of the death of an overseas pensioner.
Administrative data shows that there is a disparity in the death rate of pensioners
aged 80 years and over overseas compared to pensioners in Australia. This
disparity is significantly large enough to suggest that the Services Australia is not
being notified in all cases, or in a timely manner, when a person dies overseas.
As a result, it reasonable and proportionate to limit this new requirement to overseas
pensioners aged 80 years and over.
This change will protect the integrity of Government outlays for welfare payments
overseas, ensuring a fair and sustainable welfare system.
Life certificates, or proof of life requests, are commonly used by many countries
around the world to confirm that their pension recipients residing abroad are still
alive.
These countries include the United Kingdom, Germany, the Netherlands, France,
Italy, India, Israel, Switzerland and Argentina. For these reasons, this Schedule is
compatible with the right of equality and non-discrimination.
Conclusion
This Schedule is compatible with human rights. To the extent that it may limit a
person's right to social security and equality and non-discrimination, the limitation is
reasonable, proportionate to the policy objective and for legitimate reasons.
The Schedule will confirm that Australian pensions continue are paid to eligible
overseas pension recipients who are alive. Verifying overseas Australian pension
recipients are still alive will help to keep the system sustainable into the future.
[Circulated by the authority of the Minister for Social Services and Families,
Senator the Hon Anne Ruston]
14
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