Bills Digest no. 69 2008–09
Families, Housing, Community Services and Indigenous Affairs and
Other Legislation Amendment (Miscellaneous Measures) Bill
2008
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
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Date
introduced: 25
November 2008
House: House of Representatives
Portfolio: Families, Housing, Community Services
and Indigenous Affairs
Commencement:
Schedule 3, items 4 and 5
on 21 July 2007; Schedule 1 on the day after the Royal Assent; all
other provisions on the day of Royal Assent.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The primary purpose of the Bill
is to amend social security law and the family assistance law in
relation to the Social Security Appeals Tribunal (SSAT) so
that:
- Centrelink will be allowed to make oral submissions to the
SSAT
- the SSAT will be able to communicate decisions orally in
affirmed cases and
- SSAT members may be appointed for a term of up to five
years.
In addition the Bill makes technical amendments to a number of
Acts.
The SSAT is a statutory body established under the Social
Security (Administration) Act 1999 (SSAA) to conduct merits
review of administrative decisions made under the social security
law, the family assistance law, child support law and various other
pieces of legislation. The powers and functions of the SSAT are set
out in a number of Acts, namely the SSAA, the A New Tax System
(Family Assistance) (Administration) Act 1999 (New Tax System
FAAA) and the Child Support (Registration and Collection) Act
1988.[1]
As a merits review tribunal, the SSAT is inquisitorial in its
approach. Each SSAT panel takes a fresh look at the matter,
including the consideration of events which might have occurred
since the decision being appealed was made. The SSAT s findings are
usually based on information contained in the Centrelink or Child
Support Agency (CSA) file (which includes the formal decision of a
review officer) and the evidence presented at the hearing by the
applicant, other parties, witnesses or representatives. In addition
to considering all evidence presented, the SSAT can initiate its
own inquiries.[2]
At present Centrelink is not permitted by legislation to make
oral submissions at hearings.
In making decisions, the SSAT applies the relevant legislative
provisions to its findings of fact. In interpreting those
provisions, the SSAT is bound to follow relevant authority as
determined by decisions of the courts. It is also guided by its own
relevant previous decisions and decisions of the Administrative
Appeals Tribunal (with regards to social security and family
assistance cases), although it is not strictly bound by them.
Similarly, the SSAT has regard to the policies of the Department of
Families, Housing, Community Services and Indigenous Affairs, the
Department of Education, Employment and Workplace Relations and the
Child Support Agency. However, the SSAT may depart from these
policies in the particular circumstances of a case, for example
where it is considered the policy is not consistent with the
law.[3]
The SSAT generally has the power to affirm, vary or set aside a
decision under review. Where it sets aside a decision, the SSAT may
either substitute a new decision or send the matter back to
Centrelink or the CSA with directions or recommendations for
further action.[4]
The SSAT aims to provide a mechanism of review that is fair,
just, economical, informal and quick.[5]
With the enactment of the Child Support Legislation
Amendment (Reform of the Child Support Scheme New Formula and Other
Measures) Act 2006, the SSAT became the first level of
external review of most decisions made by the Child Support Agency
with effect from 1 January 2007. The relevant
Bills Digest provides information about that change.
Unlike Centrelink, in some child support appeal cases, the CSA
is represented at the hearing if this could assist the SSAT to make
a decision. This Bill seeks to resolve that anomaly by allowing
Centrelink the right to make oral and/or written submissions to the
SSAT.
At its meeting of 26 November 2008, the Selection of Bills
Committee resolved that the Bill not be referred to Committee for
consideration.[6]
According to the Explanatory Memorandum there is no financial
impact from the amendments contained in the Bill.[7]
The Bill contains three schedules.
Part 5 of the New Tax System FAAA contains the provisions which
relate to the review of decisions. Division 3 of that Part sets out
the procedures for review by the SSAT.
Items 1 11 of the Bill have the effect of
splitting existing Subdivision B, which sets out how the SSAT
informs itself about the decision under review, into three parts
being:
- Subdivision B which will relate to submissions to the SSAT from
parties other than the head of an agency[8]
- Subdivision BA which will relate to submissions to the SSAT
from the head of an agency and
- Subdivision BB which will encompass existing sections 127 129
of the New Tax System FAAA.
Items 1 9 of the Bill make consequential
amendments to give effect to the proposed structure.
Item 10 of the Bill inserts the new
heading to Subdivision BA and proposed section
126A. Proposed subsection 126A(1) will
empower the head of an agency which is a party to a review of a
decision to make written submissions to the SSAT in the following
ways. Either:
- The head of the agency must request, in writing, permission
from the Executive Director of the SSAT to make either oral
submissions, or both oral and written submissions, on the matter.
That request must contain an explanation about how those
submissions would assist the SSAT in its deliberations:
proposed subsection 126A(2).
- The Executive Director may grant the request
if, in his or her opinion, the submissions would assist the SSAT.
In forming that opinion the Executive Director is to have regard to
the objective set out in section 110 of the New Tax System FAAA:
proposed subsection 126A(3).[9]
or alternatively:
- The Executive Director may order the head of the agency to make
either oral submissions, or both oral and written submissions, if
in the opinion of the Executive Director, those submissions would
assist the SSAT: proposed subsection 126A(4).
Proposed subsection 126A(5) provides that the
Executive Director of the SSAT may allow for
submissions by a head of an agency to be made by telephone or other
electronic communications equipment.[10]
Item 11 inserts the heading for proposed
Subdivision BB.
Items 12 and 13 relate to existing Subdivision
E which sets out the procedure to be followed by the SSAT once a
decision on a review has been made. The effect of the amendments is
to separate out the three elements of section 141 as follows:
- proposed subsections 141(1A) (1C) will set out
what happens if the SSAT affirms the decision
- existing subsection 141(1) sets out what happens if the SSAT
varies or sets aside the decision and
- existing subsections 141(2) and (3) set out further review
rights.
Item 12 inserts proposed subsections
141(1A) (1C). Where the SSAT affirms the decision on a
review it must prepare an initial statement of its decision and,
within 14 days of making the decision, provide each party to the
review with a written copy of the initial statement:
proposed paragraphs 141(1A)(a) and (b).
In addition, within 14 days of making the decision, the SSAT
must either:
- provide each party with a written statement of the reasons for
decision. This written statement must set out the findings by the
SSAT on material questions of fact and refer to the evidence or
other material on which the findings of fact were based:
proposed subparagraph 141(1A)(c)(ii) or
- give oral reasons for the decision to each party and advise
them that they can request a written statement of reasons for the
decision. That request must be made within 14 days after the copy
of the initial statement is given[11] to the party: proposed subparagraph
141(1A)(c)(i).
Part 4 of the SSAA contains the provisions which relate to the
review of decisions. Division 3 of that Part sets out the
procedures for review by the SSAT.
Items 15 20 of the Bill work in the same way as
items 1 11 to split existing Subdivision B, which
sets out how the SSAT informs itself about the decision under
review, into three parts being:
- Subdivision B which will relate to submissions to the SSAT from
parties other than the Secretary[12]
- Subdivision BA which will relate to submissions to the SSAT
from the Secretary and
- Subdivision BB which will encompass existing sections 164 166
of the SSAA.
Item 19 inserts proposed section 163A into the
SSAA. It is in the same terms as proposed section
126A which is described above.
Items 21 and 22 relate to existing Subdivision
E which sets out the procedure to be followed by the SSAT once a
decision on a review has been made. The effect of the amendments is
to separate out the three elements of section 177 as follows:
- proposed subsections 177(1A)
(1C) will set out what happens if the SSAT affirms the
decision
- existing subsection 177(1) will set out what happens if the
SSAT varies or sets aside the decision and
- existing subsections 177(2) and (3) will set out further review
rights.
The amendments in items 21 and 22 are in the
same terms as the amendments, already described, in items
12 and 13 of Schedule 1 of the Bill.
Clause 4 of Schedule 3 of the SSAA provides that a member of the
SSAT holds office for the period which is specified in the
instrument of appointment. Item 23 amends existing
subclause 4(2) of Schedule 3 to the SSAA so that the period of
appointment of an SSAT member is increased from a maximum of three
years to a maximum of five years.[13]
Schedule 2 makes technical amendments to the following
statutes:
- Income Tax Assessment Act 1936
- Safety, Rehabilitation and Compensation Act
1988
- Social Security Act 1991 and
- Veterans Entitlements Act 1986
Each of the amendments removes a reference to rehabilitation
allowance [14] or
disability wage supplement [15] which are no longer paid under social security
law.
Item 1 proposes to repeal Schedule 1 of the
Aboriginal and Torres Strait Islander Act 2005 (the ATSI
Act).
The history of Schedule 1 is as follows:
- Part 3 of the Aboriginal and Torres Strait Islander
Commission Act 1989 as enacted related to Regions and Zones
and contained sections 91 144 of that Act. Subsection 91(1)
provided that for the purposes of that Act, Australia was divided
into 60 regions which were listed in Schedule 1.
- The Aboriginal and Torres Strait Islander Commission
Amendment Act 2005 did two things:
- It changed the name of the Aboriginal and Torres Strait
Islander Commission Act 1989 to the ATSI Act with effect from
24 March 2005 and
- It repealed Part 3 which included subsection 91(1) with effect
from 1 July 2005.
The result is that Schedule 1 which listed the 60 regions and
which is expressed to arise from subsection 91(1) no longer has an
enabling provision and is redundant.
Items 2 and 3 of Schedule 3 of the Bill propose
to amend the note to Schedules 2 and 2A of the ATSI Act by omitting
the existing reference to section 111. As section 111 was contained
in Part 3 which has been abolished as explained above, the
references are redundant.
Items 4 and 5 amend the Native Title
Amendment (Technical Amendments) Act 2007. That Act was
intended, amongst other things, to implement technical amendments
to the Native Title Act 1993 (the Native Title Act) in
order to improve existing processes for native title litigation and
negotiation.[16]
The Explanatory Memorandum to the relevant Bill sets out the
proposed amendment to section 203FI of the Native Title Act as
follows:
Item 9 Section 203FI
2.40 Existing section 203FI allows the
Secretary to delegate certain powers under Part 11 of the Native
Title Act to senior Departmental officers. This item will allow the
Secretary to delegate powers in proposed sections 203FBA and 203FBB
(which deal with reviews of decisions by representative bodies not
to assist an Aboriginal or Torres Strait Islander person).[17]
However, the amendments in item 9 of that Bill failed due to the
incorrect placement of a comma. This amendment will give effect to
the original amendment. It is for this reason that the commencement
day of items 4 and 5 of this Bill is 21 July
2007.
Subsection 1068 of the Social Security Act 1991
provides that the rate of newstart allowance, sickness allowance,
partner allowance, mature age allowance and widow allowance is to
be calculated in accordance with the Rate Calculator in that
section. The Rate Calculator sets out the way that a person s
entitlement to the relevant allowances is calculated by using a
series of self-contained modules. At the commencement of each
module there is a method statement which consists of a number of
steps to be applied in that part of the rate calculation.
At present step 7, in the method statement at the commencement
to module G, contains an incorrect cross-reference to point
1068-H12. Item 6 amends step 7 so that the
cross-reference is to point 1068-G12.
Section 19 of the SSAA as enacted included Subdivision D in
Division 1 of Part 3 of that Act. Subdivision D contained only one
section, namely section 19.
Section 19 was subsequently repealed.[18] Unfortunately the heading to the
subdivision remained even though it was redundant. Item
7 of Schedule 3 of this Bill amends the SSAA to repeal the
redundant heading.
[8].
Head of an agency is defined in section 3
of the New Tax System FAAA as being in the case of the Department
the Secretary; or in the case of the Commonwealth Services Delivery
Agency the Chief Executive Officer of the Agency; or in the case of
the Australian Taxation Office the Commissioner of Taxation; or in
the case of Medicare Australia the Chief Executive Officer of
Medicare Australia.
[9]. That is, the
SSAT must pursue the objective of providing a mechanism of review
that is fair, just, economical, informal and quick.
[11]. Under
section 29 of the Acts Interpretation Act 1901 the initial
statement will be given if it is properly addressed, prepaid and
posted as a letter which is delivered in the ordinary course of
post.
Paula Pyburne
2 December 2008
Bills Digest Service
Parliamentary Library
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