Bills Digest No 43 2003-04
Family and Community Services and Veterans' Affairs
Legislation Amendment (2003 Budget and Other Measures) Bill
2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Family and Community
Services and Veterans' Affairs Legislation Amendment (2003 Budget
and Other Measures) Bill 2003
Date Introduced:
18 September 2003
House: House of Representatives
Portfolio: Family and Community Services, Veterans'
Affairs and Immigration and Multicultural and Indigenous
Affairs
Commencement:
Various dates for the
different provisions are set out in the Table in Item
2 of the Bill.
This Bill is colloquially referred to as an
omnibus Bill, as it contains various unrelated proposed amendments
to a number of Commonwealth Acts. The mains acts proposed to be
modified are the:
Social Security Act 1991 (SSA)
Social Security (Administration) Act 1999 (SSAA)
Family Assistance Act 1999 (FAA)
Family Assistance (Administration) Act 1999 (FAAA)
Migration Act 1958 (MA), and
Veterans Entitlements Act 1986 (VEA).
Most
proposed amendments arise from various initiatives announced in the
2003-04 Budget. The Bill also proposes to make several small
non-Budgetary changes.
As there
is no central theme to the amendments proposed by this Bill, a
background to each Schedule is presented below.
The government announced in the 2003-04
Budget, a proposal to exempt from income testing, compensation
payments from all countries to Holocaust victims.(1)
Currently only compensation payments to Holocaust victims from
Germany and Austria are exempt from the income test.
The anticipated cost of this proposed
legislative change as presented in the Budget papers is $0.215
million in 2003-04, $0.102 million in 2004-05, $0.107 million in
2005-06 and $0.122 million in 2006-07.(2) This is a
total of $0.6 million over four years so the cost of this proposal
is relatively small, mainly due to there not being many Holocaust
victims still alive today.
This is beneficial legislation and will
provide some consistency of treatment under the income tests in the
SSA and the VEA for payments to Holocaust victims.
The amendments proposed in this Schedule are
in part to restore access for the Child Support Agency (CSA) to
financial transaction information held in the AUSTRAC data base.
This access was lost when the administration of the CSA was
transferred from the Australian Taxation Office to the Department
of Family and Community Services with the 1998 administrative
changes.
The government announced in the 2003-04
Budget, a proposal to expand the use of data matching to a greater
range of data bases.(3) The proposal is to expand data
matching to data bases not currently used and this requires some
amendments to the individual legislation governing the use of the
various different data bases. The legislation proposed to be
amended is the:
-
Excise Act 1901
-
Fringe Benefits Tax Assessment Act 1986
-
Product Grants and Benefits Administration Act 2000
-
Taxation Administration Act 1953, and
-
Financial Transaction Reports Act 1988.
The Budget papers present total net savings of
$216.92m over fours years made up of $26.504 million in 2003-04,
$59.672 million in 2004-05, $64.606 million in 2005-06 and $66.145
million in 2006-07.(4) Not all of these savings are made
up of the savings anticipated from increased access to data bases
for data matching. The savings also include an extra 125 000
data matching reviews each year and an increase in the number of
asset valuations by 20 000 a year.(5) A separate
savings figure for the proposed expanded data matching is not
provided.
The government originally announced several
Data-matching Program (DMP) pilot programs in the 2001-02
Budget.(6) This proposal builds on the lessons learnt
from the conduct of those DMP pilot programs.
The DMP was introduced in the 1990-91 Budget
under the Data-matching Program (Assistance and Tax) Act
1990. Through an automated process which compares and checks
data, it brings together information from key Commonwealth agencies
to:
-
detect instances where people are possibly receiving incorrect
or incompatible payments of Commonwealth benefits
-
verify with the Australian Taxation Office (ATO) income details
disclosed to the agencies which made the income support payments,
and
-
detect instances of tax evasion.
As originally enacted, the Data-matching
Program (Assistance and Tax) Act 1990 contained a sunset
clause which would have taken effect in January 1993, giving the
DMP an initial life-span of two years. There was a succession of
data-matching reports to the parliament and extensions of the
sunset clauses during the 1990s. The purpose of the reporting and
sunset clauses was to bring the DMP back to the parliament for
review and examination. Eventually the sunset clause in the
original 1990 act was repealed with the passage of the
Data-matching Program (Assistance and Tax) Amendment Act
1998. Bills Digest No. 229 1997-98 refers.(7)
In an answer to a question on notice (No. 166)
provided on 8 March 1999, the then Minister for Family and
Community Services Senator the Hon. Jocelyn Newman detailed that
the DMP, which had commenced operations in April 1991, had achieved
savings of $919.3 million up until October 1998.(8)
In the 2001-02 Centrelink Annual Report, it
was reported that 36 per cent of all reviews conducted resulted
from data matching information.(9) So the DMP is now a
major part in the process of detecting incorrect and fraudulent
payments. In the 2001-02 DMP annual report, it was recorded that
for the 2001-02 financial year that the cost of running the DMP was
$16.3 million, reaping returns from debts repaid of $104.2 million,
for a net saving of $87.8 million.(10)
The government announced in the 2003-04 Budget
proposed changes to the legislative and administrative arrangements
for assurances of support (AoS).(11) The Department of
Immigration and Multicultural and Indigenous Affairs (DIMIA) will
continue to determine which new migrants are subject to an AoS.
However, once the determination is made the AoS will be issued
under the Social Security Act 1991 (SSA) and administered
by Centrelink.
It is estimated the new arrangements will
generate a net reduction in expenditure of $11.6 million over four
years made up of $2.133 million in extra costs for the 2003-04
year, then followed by savings of $3.940 million in 2004-05, $4.462
million in 2005-06 and $4.886 million in 2006-07.(12)
These estimated savings are claimed to be realised by tighter
administration of the AoS scheme with the legislation contained
within the SSA and delivered by Centrelink.(13) Some
savings are also claimed with streamlining of the role of DIMIA in
the AoS processes.(14)
Some categories of Australia's migration
program require an AoS to be lodged with the Australian Government
before an application to migrate can be granted. Without the
undertaking of the AoS, the immigrant would not be otherwise able
to gain legal entry to Australia.(15) The AoS is a legal
commitment by a person (not necessarily the sponsor) to support the
assuree during their qualifying period for welfare assistance in
Australia. This qualifying period for a newly arrived migrant of
working age is usually two years. For a newly arrived migrant of
age pension age the pension qualifying period is ten
years.(16)
The AoS is a commitment to the government to
repay certain welfare payments paid to migrants during their first
two years (or ten years) after arriving in Australia, (or after the
grant of the relevant visa, whichever happens later). Under the
contributory parent category, it will be during the first ten years
after the commencement of the assurance period, (ten years being
the qualifying residence period for the age pension). The signing
of the AoS enables the welfare costs in the qualifying period for
the immigrant to be met by an Australian permanent resident or
citizen, rather than by the Australian
community.(17)
Generally, for a person to be accepted as
an assuror they should be:
-
an Australian citizen, Australian permanent resident or eligible
New Zealand citizen over the age of 18
-
usually resident in Australia, and
-
financially able to support the sponsored/nominated person/s and
repay certain welfare payments should they be made to the people
covered by the AoS.
An assurance can be
provided by a third party who is not the sponsor/nominator.
Individual assurors are limited to providing an AoS for no more
than two adults. It is possible for two or three people to
lodge an AoS for one person (assuree) and each assuror will be
jointly and severally liable for any debt incurred by the assuree
and recovered by Centrelink.
Potential assurors
are assessed to ensure that they are in a financial position to
meet the undertaking made in signing the AoS. They are assessed to
ensure that they will be able to repay to the Australian Government
any recoverable payments paid to the migrant during the first two
(or ten) years in Australia. The
intention is to protect potential assurers from financial hardship
in the event that an AoS debt is recovered. Where it is assessed
the assuror might not be able to meet the financial obligation of
supporting the assuree and repaying the debt, the AoS is
denied.
An AoS applies to
certain visa classes which require the applicant to be sponsored
(or nominated) by an Australian citizen or permanent resident. An
AoS is required (or mandatory) for applicants in the following visa
categories:
-
Skilled Australian Sponsored or Skilled Designated Area
Sponsored
-
Skilled Australian Sponsored Overseas Student or Skilled
Designated Area Sponsored Overseas Student
-
Skilled Australian Sponsored New Zealand Citizen or Skilled
Designated Area Sponsored New Zealand Citizen
-
parent
-
contributory parent
-
aged dependent relative
-
last remaining sibling or non-dependent child outside
Australia
-
carer, and
-
unmarried orphan relative.
Assurers must lodge a refundable bond of $3500
for the principal applicant and $1500 for additional adults on the
same application with the Commonwealth Bank of Australia. The bond
is both a disincentive to welfare benefit claims and makes funds
available for debt recovery purposes if payments are made. The bond
is held by the Commonwealth Bank for the two year AoS period and is
released by Centrelink at the end of that time, less any amount
needed to repay recoverable welfare payments.
The AoS bond under the contributory parent
category is $10 000 for the principal applicant and $4000 for
any additional adult applicants. The bond will be held for 10 years
by the Commonwealth Bank and is released by Centrelink at the end
of that time.
The assurer must be able to
demonstrate:
-
sustained minimum taxable income over the two financial years
immediately prior to giving the assurance, as evidenced by Income
Tax Assessment Notices issued by the Australian Commissioner of
Taxation, and
-
evidence of continuing taxable income at or above the minimum
income level.
An assurer is required to have a minimum
annual income of $31 755, evidenced by their income tax
assessment notice for the last two years immediately before the AoS
is given. This amount is increased by:
-
$2000 for each dependent adult and $624 for each child in the
assurer's family (except the first child which is already covered
by the minimum income amount),and
-
$2000 for each
adult and $624 for each child included in the migration
application.
In most other visa
subclasses, a discretionary AoS may be
requested by DIMIA if an applicant is assessed as being at risk of
becoming a charge on Australia s welfare system. Acceptance of a
discretionary AoS generally
requires that the assurer has not been in recent receipt of social
security benefits and has an income above the eligibility rate for
the Australian Government's low-income Health Care Card (HCC). A
bond is not required in discretionary AoS cases.
For a newly arrived resident migrant sponsored
into Australia under an AoS, they are to serve the newly arrived
resident waiting period of 2 years before they can qualify for an
income support payment. For persons over age pension age the
qualifying period for the age pension is 10 years. In exceptional
circumstances, special benefit (SpB) may be payable inside the 2 or
10 year period but only where there has been a substantial change
in circumstances that was not foreseeable.
Sponsored residents must have made every
effort to get adequate support from their sponsor before they can
qualify for SpB. It is only in cases where there has been some
unforeseen and substantial change in circumstances, after the AoS
was entered into, that now prevents the sponsor from supporting the
newly sponsored migrant, that SpB can be paid.(18)
A sponsored resident would have suffered
a substantial change in circumstances if their sponsor
had:
-
died and there is no ongoing financial support provided for the
new resident
-
started receiving disability support pension or carer payment or
a social security benefit, or would receive the benefit but for a
waiting or deferment period
-
been declared bankrupt or has left Australia permanently or for
an indeterminate period that the delegate considers likely to be
longer than 3 months. The sponsor did not leave provision for
ongoing support for the newly arrived resident
-
become a long-term prisoner, or is confined long-term to a
hospital, psychiatric institution or nursing home and is unable to
provide support to the newly arrived resident, or
-
been notified
as a missing person who cannot be located by police.
A sponsored
resident would have suffered a substantial change in circumstances
if the business where the newly sponsored resident was
employed:
A sponsored
resident would have suffered a substantial change in circumstances
if they:
-
were a victim of domestic violence and the abuse is
substantiated by documentary evidence from police, an apprehended
violence order or a medical report. If the person has evidence that
they have been granted permanent residence on the basis that DIMIA
is satisfied that they are a victim of domestic violence, then no
further evidence is required
-
find that a
confirmed offer of employment, arranged before their arrival in
Australia, has been withdrawn after they arrive, or
-
were subject to
workplace harassment, sufficient for them to leave the employment,
and they cannot obtain alternative employment. These claims would
need to have been reported to the relevant anti-discrimination
body, and the complaint upheld or still being pursued by that body.
Payment of SpB should not be granted if the complaint or appeal is
not upheld.
Where SpB is paid and an AoS is in place, any
amounts of SpB paid to the sponsored resident, is a recoverable
debt against the assuror. Sub-section 23(1) of the SSA
refers.(19) The following welfare payments are
recoverable under the AoS scheme:
The government recently introduced legislation
covering the sponsorship of migrants with the Migration
Legislation Amendment (Sponsorship Measures) Bill 2003. Bills
Digest No. 177 2002-03 refers.(20) The Bill was referred
to the Senate Standing Committee on Legal and Constitutional
Affairs and it reported on 12 August 2003.(21) The Bill
was passed by the Senate with amendment on 11 September 2002. The
Bill provided legislation
so that regulations can be made requiring sponsorship for all visas
(not just temporary visas) but does not impose standardised
undertakings across all types of visas.
There
have been recent changes to the AoS rules for the sponsorship of
parents into Australia. The changes occurred with the
passage of the Migration Legislation Amendment (Contributory
Parents Migration Scheme) Act 2002. Bills Digest No. 98
2002-03 refers.(22) One of the main changes with the
passage of the Bill was the extension of the bond period
for parent class applications from 2 to 10 years. This is spelt out in
DIMIA Fact Sheet No. 34:
However, the Assurance of Support bond under the
contributory parent category is $10,000 for the principal applicant
and $4,000 for any additional adult applicants. The bond will be
held for 10 years by the Commonwealth Bank and is released by
Centrelink at the end of that time.(23)
In the context of the potential payment of SpB
and debts being created, it is relevant to note a number of visa
classes in the Family Stream are subject to capping. This means
that once the number of visas set by the Minister for a visa class
for that program year has been reached, no further visas can be
granted in that class in that program year. DIMIA Fact Sheet No. 21
Managing the Migration Program.(24) The Parent visa
classes are subject to capping and in the 2002-03 Migration Program
there are 500 Parent places available worldwide. Once all the legal
requirements for the grant of a Parent visa are met, applications
are placed in a queue for visa grant.
On 1 July 2003, there were about 23 210
people who had lodged applications for Parent visas. Of these,
approximately 16 400 were in the queue. The offshore component
of this pipeline comprises about 17 140 people while 6070 are
in the onshore component. As at 1 July 2003, applicants for a
Parent visa subclass 103 with a queue date on or before 30 November
1999 are eligible to be processed for a visa grant in 2003-04. The
equivalent queue date for the Aged-Parent visa subclass 804 is 31
October 2000.(25)
SpB is a unique payment provided under the
SSA, as, unlike all other income support payments, much of the
conditions for qualification and payment are prescribed in
guidelines approved by the Secretary under the SSA. This is unlike
all other income support payments provided under the SSA, where the
qualification requirements and much of the conditions for payment
are set out in legislation in the SSA. These qualification
requirements set out in the legislation are commonly age,
residence, income and asset limits. Individual payments also have
other payment specific legislative requirements. Some examples are
a person who is full-time student, or is unemployed, or is
incapacitated for work, or is a full-time carer, or is a sole
parent etc.
SpB was first introduced, along with
unemployment benefit and sickness benefit, under the
Unemployment and Sickness Benefits Act 1944 and was aimed
at persons who could not qualify for those benefits and were also
ineligible for age, invalid, widow's or service pensions. It was to
be granted:
'at the discretion of the Director-General', to a
person 'by reason of physical or mental or domestic circumstance,
or any other reason, is who unable to earn a sufficient
livelihood'.(26)
On the surface this appears to provide a very
wide range of situations that could attract SpB, but in its origins
it was agreed that the States would still provide for the
unemployable and indigent persons.
This comparatively very discretionary nature
of the provision of SpB was deliberate. It was aimed at allowing
flexibility of provision, recognising the myriad of different and
often quite unique circumstances for individuals and small groups
in the community, who do not otherwise qualify for one of the
mainstream payments under the SSA, but are suffering hardship and
in need. This is still the case today with the vast majority of
special benefit payments provided under guidelines prescribed by
the Secretary. The are a few minor exceptions to this, with the
work search activity test requirements for special benefit paid to
temporary protection visa holders required to look for work, now
contained within the SSA. This is as a result of the
passage of the Family and Community Services Legislation
Amendment (Special Benefit Activity Test) Act 2002. Bills
Digest No. 46 2002-03 refers.(27)
Since 1944, SpB has been provided in specified
types of situations as set out in guidelines prescribed by the
Secretary under the SSA. Sub-section 729(1) of the SSA empowers the
Secretary to prescribe in guidelines under what circumstances SpB
can be paid.(28) SpB does not have other qualification
requirements like age, residence, income and asset limits set out
in legislation. Rather sub-section 729(1) gives broad powers to the
Secretary to prescribe requirements seen as appropriate.
The latest readily available information on
the number of SpB cases is from the Family and Community Services
publication Income Support Customers: a statistical overview
2001. As at June 2001 there were a total of 12 495 SpB
recipients in all categories and of these 5669 (45.5 per cent) were
in the category not residentially qualified for age pension
.(29) While some of these 5669 would have been
granted residency before turning age pension age, the vast majority
(probably 90 per cent or more) would have been sponsored under an
AoS after having turned age pension age and are awaiting the
accumulation of 10 years residency to qualify for the age
pension.
The same publication also detailed there were
59 SpB cases being paid under an AoS, being those inside the two
year sponsorship period.(30) This table was compiled
when the AoS sponsorship period was 2 years, even for those of age
pension age and before the 10 year sponsorship rules were
introduced with the passage of the Migration Legislation
Amendment (Contributory Parents Migration Scheme) Act
2002.(31) See Recent changes to legislation
Contributory Parents Migration Scheme above.
In an Australian National Audit Office (ANAO)
audit of SpB report of 22 November 1999 (Audit Report No 20
1999-2000),(32) the ANAO reported:
-
41.7 per cent
of SpB new claims were incorrectly assessed
-
22.1 per cent
of SpB new claims were not full assessed casting doubt on the new
claim assessment, and
-
a high
proportion of assessments failed to meet a range of other
requirements under the SSA and the Guide to the SSA.
At point 2.48 of the ANAO report it was
reported there were cases they examined where there was
insufficient or conflicting evidence as to whether the customer was
a newly arrived resident with an assurance of support from a
sponsor, or an insufficient assessment had been made by Centrelink
of the sponsor s ability to support the
customer.(33)
It may be that the government thinks
improvements in SpB decision making will follow with the placement
of the AoS rules and requirements in legislation, rather than just
in guidelines attached to legislation.
The proposal is to place in the SSA, the SSAA
and the MA for the first time all of the rules and regulations for
the delivery and administration of the AoS scheme. In terms of the
usual rules governing the payment of SpB, the proposal to place all
of the rules to govern the delivery of SpB in AoS cases in the SSA,
the SSAA and the MA is unique.
Hitherto, the rules governing the delivery of
SpB paid under an AoS have not been contained within legislation,
rather in guidelines under the MA and in guidelines attached to the
SSA. As explained by the Explanatory Memorandum, the purpose of
placing in legislation all the rules to govern the provision of SpB
is to improve the operation of the AoS scheme .
One of the flaws or Achilles heel of the
current arrangements is that DIMIA does not have to wear the
consequences of its decision making in the AoS scheme. Currently,
if DIMIA allows a person in as a newly arrived sponsored migrant
under an AoS, and then the assuror is later unable to meet their
AoS obligations and provide for the assuree during the sponsorship
period, it is Centrelink who receives the claim for assistance and
then has to make a determination if SpB should be provided and has
to recover any debt created. These proposed changed arrangements of
placing the scheme rules in legislation do not alter that
fundamental flaw in the process. It will still be DIMIA who takes
and assesses claims under an AoS and Centrelink who will pick up
the pieces where the sponsor cannot honour their commitment. The
enforcement of sponsorship agreements and the chasing of debts
arising from SpB payments will become even more of an issue now
that the sponsorship/debt enforcement period for parent migration
is now 10 years not 2 years.
In a Ministerial Statement of 3 December 2002,
titled Managing Migration,(34) the then
Minister for Immigration and Multicultural and Indigenous Affairs,
the Hon. Mr Philip Ruddock, MP highlighted:
Australia has been built on settlement from other
countries. In many ways this has determined the very nature of
contemporary Australian society:
The six million migrants who have come to
Australia since World War II represent 150 different nationalities,
200 different languages and practice more than 70 religions.
Australia is one of only a few countries in the
world that have operated a planned immigration program for over 50
years, and which has an ongoing humanitarian program which provides
for 12,000 new places a year.
Our immigration policies are underpinned by the
following essential core values:
First, migrant selection is strictly
non-discriminatory as far as matters such as race, religion, colour
or ethnicity are concerned.
Secondly, Australians can be reunited in Australia
with their non-Australian partners or dependent children, and in
time those persons can become Australian citizens.
These comments highlight the need for an AoS
type program under long-standing and current migration program.
Whether the proposed arrangements to place much more rigour into
the administration and delivery of the AoS program, by placing the
requirements into legislation and in particular the SSA will be
sufficient remains to be seen. There is still the fundamental
problem of DIMIA assessing and approving AoS claims and Centrelink
picking up the pieces by providing SpB and pursuing debts after the
assuror fails to honour their commitments under an AoS.
The government announced in the 2003-04 Budget
a proposal to place in legislation the power to immediately suspend
or cancel payment where Centrelink becomes aware a person has
departed Australia without notifying Centrelink.(35)
It is anticipated this change will realise
savings of $9 million over four years and cost an extra $5.8
million in administrative costs. These savings and administrative
costs as presented in the Budget papers are included with the
proposals to cancel payments to those suspected of being involved
in terrorist activities overseas and to recover debts arising from
the receipt of a foreign income lump sum from both members of a
partnered couple.(36)
Currently, an income support recipient paid
under the SSA or a recipient of Family Tax Benefit (FTB) paid under
the Family Assistance Act 1999 (FAA) must notify
Centrelink of an intention to leave Australia for overseas. For SSA
payments sections 67 and 68 of the SSAA refers.(37) For
FTB, section 25 of the Family Assistance Administration Act
1999 (FAAA) refers.(38) Because of the temporary
portability rules allowing payment for temporary absences up to 26
weeks, currently where Centrelink becomes aware a person has left
Australia, and the recipient did not notify Centrelink prior to
departure, the legislation does not empower a suspension or
cancellation of payment unless Centrelink is aware there has been a
change in circumstance meaning the person is no longer
qualified.
With data matching between DIMIA and
Centrelink now identifying payment recipients who depart Australia,
it is now far more common for Centrelink to be come aware a person
has departed overseas, even though they have not informed
Centrelink prior to departure. This proposal will empower
Centrelink to suspend payments pending the return of the recipient
from overseas and allow a review of entitlement during the absence,
up to the maximum allowable period, currently 26 weeks.
This proposal should be read in conjunction
with the proposal to reduce the temporary portability period from
26 weeks to 13 weeks contained in Schedule 6.
This proposal was announced in the 2003-04
Budget along with the proposal in Schedule
4.(39) Currently, only where a lump sum arrears
payment is received from a country with which Australia has a
social security agreement can the payment be treated as income and
a debt raised and recovered for the past period for which a payment
under the SSA has already been paid.
This proposed amendment to the SSA will mean
all lump sum arrears payments received from all overseas countries,
both agreement and non-agreement countries, will be treated the
same. The proposed changes appear to be very similar to the changes
contained in the Family and Community Services Legislation
Amendment (Further Simplification of International Payments) Act
2002. Bills Digest No. 96 2001-02 refers.(40) That
Act contained amendments to the SSA to standardise the recovery of
arrears from foreign countries.
The government announced in the 2003-04 Budget
a proposal to halve the period of temporary payment outside
Australia for most pensions and allowances from 26 down to 13
weeks.(41) It is not proposed to alter the current
arrangements for age pension, wife pension or widow B pension.
This proposal should be read in conjunction
with the proposal in Schedule 4 - stopping payment
for people absent from Australia without notice.
The Budget papers estimate this proposal will
realise savings of $15.3 million over four years in social welfare
payments. The administrative costs are anticipated to be $11.2
million over four years. The costs/savings are estimated to be made
up of an extra cost of $3.096 million in 2003-04, followed by
savings of $0.055 million in 2004-05, $3.497 million in 2005-06 and
$3.664 million in 2006-07.(42)
The extra administrative costs arise from the
greater number of cases that will need to be dealt with being
absent from 13 or more weeks as opposed to those absent for 26 or
more weeks.
For most income support payments provided
under the SSA, payment can be made for temporary absences overseas
for up to 26 weeks. Notable exceptions are newstart allowance,
sickness allowance, special benefit and youth allowance to an
unemployed jobseeker which are generally not payable where the
recipient is outside Australia, except in rare prescribed
circumstances. The current portability of payments is set out in
section 1217 of the SSA - see table below.
Portability of social security payments
|
Item
|
Payment
|
Person
|
Absence
|
Maximum portability
period
|
|
1
|
Age
pension
|
All
persons
|
Any
absence
|
Unlimited
period
|
|
2
|
Disability support
pension
|
Severely disabled
person
|
Any
absence
|
Unlimited
period
|
|
3
|
Disability support
pension
|
Person other than
severely disabled person
|
Any
absence
|
26
weeks
|
|
4
|
Wife
pension
|
Entitled
person
|
Any
absence
|
Unlimited
period
|
|
5
|
Wife
pension
|
Person other than
entitled person
|
Any
absence
|
26
weeks
|
|
6
|
Carer
payment
|
All
persons
|
Any temporary
absence
|
26
weeks
|
|
7
|
Bereavement
allowance
|
All
persons
|
Any
absence
|
Unlimited
period
|
|
8
|
Widow B pension
|
Entitled
person
|
Any
absence
|
Unlimited
period
|
|
9
|
Widow B
pension
|
Person other than
entitled person
|
Any
absence
|
26
weeks
|
|
10
|
Widow
allowance
|
All
persons
|
Any temporary
absence
|
26
weeks
|
|
11
|
Parenting
payment
|
All
persons
|
Any temporary
absence
|
26
weeks
|
|
12
|
Youth
allowance
|
Person other than
person
undertaking
full-time study
|
A temporary
absence for any of the following purposes:
(a) to seek
eligible medical treatment;
(b) to attend to
an acute family crisis;
(c) for a
humanitarian purpose.
|
26
weeks
|
|
13
|
Youth
allowance
|
Person undertaking
full-time study
|
Any temporary
absence
|
26
weeks
(but see also
section 1218)
|
|
14
|
Austudy
payment
|
All
persons
|
Any temporary
absence
|
26
weeks
(but see also
section 1218)
|
|
15
|
Newstart
allowance
|
All
persons
|
A temporary
absence for any of the following purposes:
(a) to seek
eligible medical treatment;
(b) to attend to
an acute family crisis;
(c) for a
humanitarian purpose.
|
26
weeks
|
|
16
|
Mature age allowance and mature age
partner
allowance under Part
2.12A
|
All
persons
|
Any temporary
absence
|
26
weeks
|
|
17
|
Mature age
allowance under Part
2.12B
|
All
persons
|
Any temporary
absence
|
26
weeks
|
|
18
|
Sickness
allowance
|
All
persons
|
A temporary
absence for any of the following purposes:
(a) to seek
eligible medical treatment;
(b) to attend to
an acute family crisis;
(c) for a
humanitarian purpose.
|
26
weeks
|
|
19
|
Special
benefit
|
All
persons
|
A temporary
absence for any of the following purposes:
(a) to seek
eligible medical treatment;
(b) to attend to
an acute family crisis;
(c) for a
humanitarian purpose.
|
26
weeks
|
|
20
|
Partner
allowance
|
All
persons
|
Any temporary
absence
|
26
weeks
|
|
21
|
Carer
allowance
|
All
persons
|
Any temporary
absence
|
26
weeks
|
|
22
|
Mobility
allowance
|
All
persons
|
Any temporary
absence
|
26
weeks
|
|
23
|
Telephone
allowance
|
All
persons
|
Any temporary
absence
|
26
weeks
|
There are provisions presented in this
proposal to allow the discretionary payment of disability support
pension (DSP) for periods longer than 13 weeks in special
circumstances. This would be on a case-by-case basis where the DSP
recipient:
This is a
tightening of the current arrangements where a severely disabled
person can be paid DSP for any period overseas.
Under current arrangements, where a FTB
recipient or child is absent for more than 26 weeks, only the base
rate of FTB-A is payable. This base rate can be payable for up to
three years. For absences longer than 26 weeks and up to three
years more than minimum rate FTB-A is not payable and FTB-B is not
payable at all. For absences of less than 26 weeks, the same rate
can be paid as provided in Australia.
The proposed change is to reduce the period
beyond which only base rate FTB-A is payable from 26 down to 13
weeks.
In respect of FTB and like payments, this
proposal is similar to changes presented with the Social
Security and Veterans' Affairs Legislation Amendment (Family and
Other Measures) Bill 1997. Bills Digest No.
13 1997-98 refers.(43) In that Bill, the period of
payment overseas for the then family payment (FP) was reduced from
13 down to 8 weeks, but the maximum rate otherwise paid in
Australia was payable. Prior to that change only the base rate of
FP was payable for up to 13 weeks.
The technical amendment in this Schedule arise
from the delayed passage of the Family and Community Services
Legislation Amendment (Australians Working Together and other 2001
Budget Measures) Act 2003. Bills Digest No. 159 2001-02
refers.(44)
That act
was originally introduced on the 16th of May 2002 but
did not receive royal assent until the 24th of April
2003.
Items 1 and 3 insert into the
SSA and the Veterans Entitlements Act 1986 (VEA)
respectively, a blanket exclusion as income amounts paid for
National Socialist persecution.
Proposed Item 7 is the main
provision that restores access for the CSA to information held
under the Financial Transaction Reports Act 1988.
Item 1 proposes several new
sections to be placed in the SSA to define a AoS, who may give an
AoS, how to give an AoS and acceptance or rejection of an AoS.
Proposed section 1061ZZGF
defines when an AoS is in force and proposed section
1061ZZGG defines liability to make AoS payments under the
SSA.
Proposed
Item 7 in Part 2 defines an AoS debt.
Proposed
Item 14 in Part 2 sets out the rules for the
waiver of an AoS debt.
Item 3 places proposed new
sections into the FAAA to empowering the Secretary to vary the rate
of FTB payable where it comes to notice either the FTB recipient or
the FTB child has left Australia without notification.
Proposed Items 5 and 6 insert
into the SSAA the power for the Secretary to suspend or cancel
payment where it comes to notice the recipient has left Australia
without notification.
Item 3 proposes to insert a
new section 1228A into the SSA to provide for a
debt to be created where a payment under the SSA has been paid over
a period and at a later date the person, or their partner, receive
a payment of foreign income for that same period.
Proposed Items 1 to 5 alter
the portability period for FTB from 26 to 13 weeks in the various
sections in the FAAA. Items 7 to 14 alter the
portability period for various payments from 26 to 13 weeks in
sections in the SSA. Item 15 inserts a new
section 1218AA into the SSA to empower the
Secretary to discretionally extend payment of DSP beyond 13 weeks
where several conditions are met.
As referred to in the Purpose and
Introduction, there is no central theme to the amendments in
this Bill, it being an omnibus
Bill, containing various unrelated proposed
amendments.
Some Schedules are clearly beneficial,
like Schedule I - Excluding payments for National Socialist
persecution from income. Other Schedules may not be seen as
beneficial, like Schedule 4 - stopping
payment for people absent from
Australia without notice and
Schedule 6 - reducing portability period.
Schedule 3 - assurances of support
is an attempt to fix up a long standing problem of AoS not being
honoured completely and where debts have been created, these debts
not being recovered.
-
Family and Community Services Portfolio Budget Statement -
2003-04 Budget, Budget Related Paper No. 1.8, p. 202.
-
ibid.
-
Family and Community Services Portfolio Budget Statement -
2003-04 Budget, op. cit., p. 192.
-
ibid.
-
ibid.
-
Family and Community Services Portfolio Budget Statement -
2001-02 Budget, Budget Related Paper No. 1.8, p. 187 188.
-
Data-matching Program
(Assistance and Tax) Amendment Act 1998. Bills
Digest No. 229, 1997 98.
-
Question on Notice: Data Matching Program: Savings.
-
Centrelink 2001-02 Annual Report, p. 92.
-
Data-matching program 2001-02 Annual Report, p. 19.
-
Family and Community Services Portfolio Budget Statement -
2003-04 Budget, Budget Related Paper No. 1.8, p. 196.
-
ibid.
-
ibid.
-
Immigration and Multicultural and Indigenous Affairs Portfolio
Budget Statement 2003-04 Budget, Budget Related Paper No. 1.12, p.
56 57.
-
Assurance of
Support, DIMIA Fact Sheet No. 34.
-
ibid
-
ibid.
-
Guide to the Administration of the Social Security Act
1991, Department of Family and Community Services, Inst No.
3.7.2.20 - Substantial Change in Circumstances for SpB.
-
Sub-section 23(1) of the SSA refers:
"assurance of support debt"
means a debt due and payable by a person to the Commonwealth, or a
liability of a person to the Commonwealth, because of the operation
of:
(a)
subregulation 165(1) of the Migration (1989) Regulations as in
force on or before 19 December 1991; or
(b)
regulation 164C of the Migration (1989) Regulations as in force
after 19 December 1991 and before 1 February 1993; or
(c)
Part 5 of the Migration (1993) Regulations as in force on or after
1 February 1993;
(ca) Division 7 of Part 2 of the Migration
(1994) Regulations as in force on or after 1 September 1994;
in respect of the payment to another person of
a
social security payment of a kind mentioned in subregulation
2.38(1) of the Migration Regulations.
-
Migration Legislation Amendment (Sponsorship Measures) Bill
2003. Bills
Digest No. 177, 2002 03.
-
Provisions of the Migration Legislation Amendment
(Sponsorship Measures) Bill 2003, -
Report of
the Legal and Constitutional Affairs Committee, 12 August
2003.
-
Migration Legislation Amendment (Contributory Parents Migration
Scheme) Act 2002. Bills
Digest No. 98, 2002 03.
-
DIMIA Fact Sheet No. 34, op. cit.
-
ibid.
-
ibid.
-
T. H. Kewley, Social Security in
Australia 1900-72, 2nd edition, Griffin Press Adelaide, 1972,
p. 269.
-
Family and Community Services Legislation Amendment (Special
Benefit Activity Test) Bill 2002. Bills
Digest No. 46, 2002 03 refers.
-
Qualification for special benefit
729.(1) A person is qualified for a special
benefit for a period if the Secretary determines, in accordance
with subsection (2), that a special benefit should be granted to
the person for the period.
Note: special benefit is a discretionary benfit and is avaiable
only to a person who is not able to get any other income support
payment ( see paragraghs (2)(a) and (b) below))
-
Income Support
Customers: a statistical overview 2001., Department Family
and Community Services
publication, Occasional paper No.7., p. 48.
-
ibid.
-
Migration Legislation Amendment (Sponsorship Measures) Bill
2003, op. cit.
-
ANAO audit
report No. 20 - 1999-2000, Audit on Special Benefit.
-
ibid.
-
Managing Migration Ministerial Statement, 2 December 2002.
-
Family and Community Services Portfolio Budget Statement -
2003-04 Budget, op. cit., p. 195.
-
ibid.
-
67.(1) Subsection
(2) applies to a person if:
(a)
the person has made a claim for a social security payment; and
(b)
either:
(i)
the claim has been granted; or
(ii) the
claim has not been determined.
67.(2) The Secretary may give
a person to whom this subsection applies a notice in writing that
requires the person to do either or both of the following:
(a)
inform the Department if:
(i)
a specified event or change of circumstances occurs; or
(ii) the person becomes aware that a specified
event or change of circumstances is likely to occur;
(b) give the Department a statement about a
matter that might affect the payment to the person of the social
security payment.
68.(2) The Secretary may give
a person to whom this subsection applies a notice that requires the
person to do either or both of the following:
(d)
inform the Department if:
(i)
a specified event or change of circumstances occurs; or
(ii)
the person becomes aware that a specified event or change of
circumstances is likely to occur;
(b)
give the Department a statement about a matter that might affect
the payment to the person of the social security payment.
- 25.(1) If, after a claimant becomes
entitled
to be paid family tax benefit by instalment:
(a)
anything happens that causes the claimant to cease to be eligible
for family tax benefit on the days for which the claimant will
become entitled to be paid the benefit under the determination
concerned, or to become eligible for a daily rate of family tax
benefit that is less than that specified in the determination;
or
(b)
the claimant becomes aware that anything is likely to happen that
will have that effect;
the claimant must, in the manner set out in a
written notice given to the claimant under section
25A, as soon as practicable after the claimant becomes
aware that the thing has happened or is likely to happen, notify
the
Secretary
that it has happened or is likely to happen.
Penalty: Imprisonment for 6 months.
-
Family and Community Services Portfolio Budget Statement -
2003-04 Budget, op. cit., p. 195.
-
Family and Community Services Legislation Amendment (Further
Simplification of International Payments) Bill 2002. Bills
Digest No. 96, 2001 02.
-
Family and Community Services Portfolio Budget Statement -
2003-04 Budget, op. cit., p. 197.
-
ibid.
-
Social Security and Veterans' Affairs Legislation Amendment
(Family and Other Measures) Bill 1997. Bills
Digest No. 13, 1997 98.
-
Family and Community Services Legislation Amendment (Australians
Working Together and other 2001 Budget Measures) Act 2003.
Bills
Digest No. 159, 2001 02.
Peter Yeend
8 October 2003
Bills Digest Service
Information and Research Services
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is taken to ensure that the paper is accurate and balanced, the
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(IRS). Advice on legislation or legal policy issues contained in
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ISSN 1328-8091
© Commonwealth of Australia 2003
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