Bills Digest no. 35 2006–07
Families, Community Services and Indigenous Affairs and
Veterans Affairs Legislation Amendment
(2006 Budget Measures)
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
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Families, Community Services and
Indigenous Affairs and Veterans Affairs Legislation Amendment
Measures) Bill 2006
introduced: 14 September 2006
House: House of Representatives
Portfolio: Families, Community Services and
Indigenous Affairs and Veterans Affairs
Commencement: The day on which the Act receives
Royal Assent except for schedule 1 which commences on 1 January
2007 and Schedule 2 which commences on the 28th day
after Royal Assent.
To implement two 2006 Budget measures that amend the assets test
and the Crisis Payment and to implement several compliance and
Under the assets test, which was introduced in 1985, the value
of the residential family home is exempt when assessing the assets
to be tested. When the family home is located on a large block of
land, such as a farm or rural residential block, land around the
home up to the amount of 2 hectares is also exempt.
The proposal in this Bill allows for the exemption of all the
land on the same title document as the family home where:
- the claimant is of age pension age and claiming Age Pension,
Carer Payment or Service Pension,
- they have a long term attachment to the land of at least 20
- they can show that land with commercial potential is being used
to generate an income.
The measure would be of assistance to people owning land in
rural residential areas, those with bush blocks with little
commercial potential, retired farmers with small holdings and
retired farmers who still live on their farm while it is being
worked by someone else. Any income generated from the asset test
exempt land would be assessed under the income test.
This measure is expected to increase expenses by $173 million
over four years.(1)
Schedule 2 of the Bill provides for search and seizure powers
for investigations relating to the family assistance, social
security and student assistance provisions. The stated intention is
to allow authorised officers to effectively investigate and
prosecute offences in regard to programs administered under those
The prevalence of search and seizure powers in Commonwealth
legislation is a matter that has been of concern to the Parliament
for some time. In 2000 the Senate Scrutiny of Bills Committee
released its Fourth Report of 2000: Entry and Search Provisions in
Commonwealth Legislation .(3) The Committee made several
recommendations and noted that:
There is a public interest in the effective
administration of justice and government. However, there is also a
public interest in preserving people s dignity and protecting them
from arbitrary invasions of their property and privacy, and
disruption to the proper functioning of their businesses and work.
Neither of these interests can be insisted on to the exclusion of
the other, and proper and fair laws which authorise the entering
and searching of premises can only be made where the right balance
is struck between these two interests.(4)
In its response in August 2003, the Government rejected many of
the Committee s recommendations.(5) On 25 March 2004,
the Senate again referred the issue to the Committee in the form of
the Inquiry into Entry, Search and Seizure Provisions in
Commonwealth Legislation.(6) The Committee has taken
submissions and conducted public hearings, all of which can be
accessed on its website. The Committee has not yet reported.
Although the Government rejected many of the recommendations
made in the Committee s Report 2000, the Attorney-General has made
reference to the report in his Department s A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers
.(7) That document suggests that:
Where an instructing agency is preparing proposals
for entry and search provisions, it should take account of the
views of the Senate Scrutiny of Bills Committee, most notably
reflected in the Committee s Report 4/2000: Inquiry into Entry
and Search Provisions in Commonwealth
Principles recommended to be to be considered in the Committee s
report include that:
- legislation should only authorise entry to premises under
warrant or by consent, or in a limited range of other circumstances
such as a condition of a license,
- legislation that confers coercive powers should require that
these powers may only be exercised by appropriately qualified
- the power to appoint an authorised officer should only be
exercisable by a Departmental Secretary or equivalent, eg an
Industrial Registrar under the Workplace Relations Act
1996. There should be a requirement that the appointment be in
- there should be a requirement that an authorised officer who
enters premises be in possession of an identity card, issued for
that purpose, which incorporates a recent photograph of the person.
The officer should be required to show the occupier this card
- legislation providing for entry by consent should require that
the occupier be informed of the right to refuse consent, and that
consent be voluntary,
- where legislation provides for entry to premises with consent,
there should not be a requirement to cooperate with the
officer/inspector and failure to cooperate should not be an
- provisions allowing entry and search of premises without
consent should require that the occupier be given a copy of any
warrant and be informed, in writing if practicable, of his/her
rights and responsibilities. These requirements should only be able
to be waived in very limited circumstances, eg where there are
reasonable grounds to believe compliance would endanger a person s
- legislation should allow an authorised officer to use
reasonable force to execute a warrant. Where legislation provides
that an authorised officer may obtain assistance to enter premises
and execute powers under warrant, the person assisting should be
authorised to use force against things but not persons ,
- seizure should only be allowed under a warrant, even if entry
and search without warrant are permitted. Where entry is allowed
without warrant, the legislation may provide that items may be
secured, pending a warrant application,
- the power to issue warrants to enter and search premises should
normally be conferred on State and Territory magistrates acting in
their personal capacity,
- entry, search and seizure powers should generally be contained
in an Act rather than subordinate legislation, and
- the search warrant provisions of Part 1AA of the Crimes
Act, which are applicable to police, define the outer limits
of the powers and the minimum limitations and obligations that
should apply to search warrant powers.
Broadly speaking, these principles appear to have been followed
in the drafting of the provisions in the Bill.
This payment was introduced in 1999 and replaced the double
payment for released prisoners. It provides financial assistance
over and above normal income support entitlements to income support
recipients in severe financial hardship if it is necessary for them
- leave their home and set up a new home because of events such
as domestic violence or a house fire, or
- re-establish themselves after release from prison or
The current rate of the payment is about $230 and can be paid up
to four times in a twelve month period.
This Bill amends the eligibility criteria so that those
experiencing domestic violence will be able to receive the payment
where they remain at home. The payment will help with the cost of
securing the home and other expenses.
Under the social security law and data matching legislation,
information can be exchanged between various government agencies to
assist with the administration of welfare payments. This is mainly
done so that information from different agencies can be compared so
that cases where incorrect entitlements are being received can be
identified. This Bill allows the Department of Health and Ageing to
provide information to Centrelink or one of the departments with
responsibility for social security payments. The objective is to
compare data on people permanently entering residential aged care
with data on recipients of Carer Allowance. If Carer Allowance
recipients do not notify Centrelink when the person they care for
leaves their care they can build up overpayment debt.
The Bill also allows Medicare Australia access to protected
information held by the Child Support Agency.
For the purposes of administering welfare payments information
can be gathered on a range of topics under the Social Security Law.
This Bill adds information about real property interests to the
existing list set out in the Social Security (Administration)
Act 1999 (SSAA).
Item 6 of Schedule 1 inserts new
section 11A into the Social Security Act 1991.
This section sets out the new provisions concerning what is
included under the term principal home for the purposes of the
Schedule 2 amends the A New Tax System
(Family Assistance) (Administration) Act 1999; the SSAA and
the Student Assistance Act 1973, to implement the
new provisions for search and seizure powers in relation to
investigations under those Acts. Essentially, the Bill establishes
the same regime for each of those Acts. Details of the provisions
are outlined from page 11 of the Explanatory
Item 3 of Schedule 3 inserts new
paragraphs 1061JHA into the Social Security Act
1991. The new section provides for eligibility for a crisis
payment where a person who has been subjected to domestic violence
remains in their home after the family member involved in domestic
violence has been removed or has left.
Item 1 of Schedule 4 inserts new
paragraphs 86-3 (ca) and (cb) into the Aged Care Act
1997. The new subsections allow for information to be provided
Items 3 and 4 of Schedule 4 insert new
paragraph 150(3)(bb) into the Child Support
(Assessment Act) 1989 and new subsection
16(3)(bb) into the Child Support (Registration and
Collection) Act 1988. The new subsections allow for
information to be provided to Medicare Australia.
Item 4 of Schedule 4 inserts new
paragraph 195(2)(ha) into the Social Security
(Administration) Act 1999. This allows for the gathering of
information about the real property interests certain classes of
The provisions in this Bill to allow some exemption of
non-productive land under the assets test and the expansion of
access to the Crisis Payment is beneficial legislation.
The search and seizure provisions in the Bill seem to comply
with previously released Attorney General guidelines, which in turn
comply with recommendations previously made by the Senate Scrutiny
of Bills Committee s Inquiry into Entry, Search and Seizure
Provisions in Commonwealth Legislation.
- Families, Community Services and Indigenous Affairs and
Veterans Affairs Legislation Amendment (2006 Budget Measures) Bill
2006, Explanatory Memorandum, Outline. http://parlinfoweb.parl.net/parlinfo/browse.aspx?NodeID=154
- ibid., p. 11.
- Senate Standing Committee for the Scrutiny of Bills, Fourth
Report of 2000, Entry and Search Provisions in Commonwealth
Legislation, Canberra, 6 April 2000.
- bid., p. 67.
- Government Response to the Senate Senate Scrutiny of Bills
Committee Fourth Report 2000, Entry and Search Provisions in
Commonwealth Legislation, Canberra, August 2003.
- Minister for Justice and Customs, A Guide To
Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers, Canberra, February 2004.
Minister for Justice and Customs, A Guide To Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers,
Canberra, February 2004.
- bid., Chapter 9.
- Families, Community Services and Indigenous Affairs and
Veterans Affairs Legislation Amendment (2006 Budget Measures) Bill
2006, Explanatory Memorandum, op. cit., p. 11.
Social Policy Section
Law and Bills Digest Section
12 October 2006
Bills Digest Service
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