Social Security(Administration) Bill 1999
Social Security (International Agreements) Bill 1999
Social Security (Administration and International Agreements) (Consequential Amendments) Bill 1999
23 AUGUST 1999
© Commonwealth of Australia 1999
ISSN 1440-2572 |
View the report as separate downloadable parts:
For further information, contact:
Committee Secretary
Senate Standing Committees on Community Affairs
PO Box 6100
Parliament House
Canberra ACT 2600
Australia
Membership of the
Committee
Members
| Senator Sue Knowles, Chairman |
LP, Western Australia |
| Senator Andrew Bartlett, Deputy Chair |
AD, Queensland |
| Senator Kay Denman |
ALP, Tasmania |
| Senator Chris Evans |
ALP, Western Australia |
| Senator Brett Mason |
LP, Queensland |
| Senator Tsebin Tchen |
LP, Victoria |
Participating Members
| Senator Eric Abetz |
LP, Tasmania |
| Senator Bob Brown |
Greens, Tasmania |
| Senator the Hon Rosemary Crowley |
ALP, South Australia |
| Senator the Hon John Faulkner |
ALP, New South Wales |
| Senator Michael Forshaw |
ALP, New South Wales |
| Senator Brenda Gibbs |
ALP, Queensland |
| Senator Brian Harradine |
Ind, Tasmania |
| Senator Meg Lees |
AD, South Australia |
| Senator the Hon Chris Schacht |
ALP, South Australia |
| Senator Natasha Stott Despoja |
AD, South Australia |
| Senator John Tierney |
LP, New South Wales |
| Senator John Woodley |
AD, Queensland |
Report
SOCIAL SECURITY (ADMINISTRATION) BILL 1999
SOCIAL SECURITY
(INTERNATIONAL AGREEMENTS) BILL 1999
SOCIAL
SECURITY (ADMINISTRATION AND INTERNATIONAL AGREEMENTS) (CONSEQUENTIAL
AMENDMENTS) BILL 1999
1. THE INQUIRY
1.1 The Social Security (Administration) Bill 1999, Social Security (International
Agreements) Bill 1999 and the Social Security (Administration and International
Agreements) (Consequential Amendments) Bill 1999 (the Bills) were introduced
into the House of Representatives on 3 June 1999. On 28 June
1999, the Senate, on the recommendation of the Selection of Bills Committee
(Report No. 10 of 1999), referred the provisions of the Bills to
the Committee for report by 10 August 1999.
1.2 The Committee received 6 submissions relating to the Bills and these
are listed at Appendix 1. A number of issues were raised in these submissions
and, rather than conduct a public hearing, the Committee sought a written
response from the Department to the issues. The Department's response
is included as a supplement to its original submission.
2. THE BILLS
2.1 These Bills form part of the measures being undertaken by the Government
to implement a simpler and more coherent social security system that more
effectively meets its objectives of adequacy, equity, incentives for self-provision,
customer service, and administrative and financial sustainability.
2.2 The Administration Bill consolidates and simplifies the technical
rules provisions relating to social security, thereby effecting a major
reduction in the length and complexity of the social security laws. While
the Bill covers social security payments and concession cards, it does
not contain any provisions relating to qualification, payability, rates,
overpayments, debt recovery, portability or international security agreements.
The Bill does not involve any major policy initiatives, although a number
of other policy initiatives are implemented including streamlining the
claims process, introducing generic provisions applicable to all payment
types, giving the Social Security Appeals Tribunal extra discretion and
establishing time limits to appeal a reviewable decision.
2.3 The International Agreements Bill provides for the consolidation
of existing social security international agreements into a separate Act
and enables new agreements to be added and existing agreements to be varied
by way of regulation. The Consequential Amendments Bill amends and repeals
provisions of certain Acts consequent upon the enactment of the Bills.
[1]
3. ISSUES
Time limits for review of decisions
3.1 The major issue raised in submissions related to the time limits
for review of decisions as proposed in sections 128 and 142 of the Administration
Bill. The Bill provides for a 52-week time limit for lodging requests
for internal review by an authorised review officer, unless special circumstances
warrant accepting the request for review out of time. A 28-day time limit
is proposed for appeals to the Social Security Appeals Tribunal, again
unless special circumstances warrant accepting the appeal out of time.
3.2 Submissions asserted that these proposed time limits would impact
adversely on certain groups who have one or more access barriers, especially
people of non-English speaking or ATSI backgrounds, people who have either
a psychiatric, cognitive or intellectual disability, people who have literacy
and numeracy difficulties, and people who are in a situation of crisis.
The National Welfare Rights Network (NWRN) outlined a range of difficulties
faced by people experiencing such disadvantage in accessing and understanding
the social security and administrative review systems. [2] As ACOSS commented:
People from these groups often delay seeking a review because they
have been unable or unwilling to pursue an appeal at the time the debt
was raised, or misunderstood their rights. The proposed time limits
may deny people from these groups the right to appeal against debts
which may have no legal basis or which should be waived, merely because
the appeal is out of time. [3]
3.3 Organisations representing these groups did not believe that the
provisions allowing for extensions of time in `special circumstances'
would address concerns in this area. Comment was made that `interpretation
of the term in the past had a very restrictive effect on the exercise
of discretion in waiver of debts and waiver of compensation preclusion
periods'. [4] Doubts were expressed that the
provisions were likely to be administratively cumbersome, costly to administer,
and would disadvantage those facing the greatest barriers. [5]
3.4 The Department noted that the introduction of time limits for lodging
requests for review give effect to recommendations made in a report by
Dame Margaret Guilfoyle. Dame Margaret had suggested that the administration
of a mass decision making system requires some finality in dealing with
applicants for review. The period chosen was seen by the Department as
a compromise in that it is lengthy when compared to time limits within
which a person may seek a review of an administrative decision in other
jurisdictions, yet is not open ended in the way of the current arrangements
in the Act. [6]
3.5 The Department explained that the 52-week time limit for internal
review was also selected because it aligns with archive and privacy arguments.
Archives' disposal schedules permit the destruction of files 12 months
after a customer ceases to receive a payment. However, a person's records
would always be available when certain situations apply. The Department
considered that:
The 52 week time limit is consistent with the availability of files
for conducting the review in a manner that is fair to the applicant
and to Centrelink. Experience has also shown that a person who delays
action for 12 months or more is less likely to succeed in the review
and appeals system partly through evidentiary problems. [7]
3.6 In response to the misgivings expressed about the `special circumstances'
provisions, the Department commented:
The description of circumstances that might be regarded as “special”
requires careful consideration before detailed guidelines are completed
and provided to decision-makers…It is the Department's wish that
a range of stakeholders be consulted before the guidelines are completed
in order to ensure that, to the extent reasonably possible, circumstances
likely to be encountered by decision-makers are explained and not left
to chance or possible misinterpretation. In this respect, the Department
would continue its practice of seeking the input of peak bodies such
as ACOSS and the NWRN.
The NWRN has already been invited to suggest which circumstances affecting
social security customers might deter or prevent them from seeking an
early review and it has been suggested that the Department will do all
it reasonably can to include reference to these circumstances in the
guidelines used by [authorised review officers] who will be making the
decisions on extensions of time. The SSAT would be aware of these guidelines
and can choose to apply them in its turn or devise its own guidelines.
[8]
3.7 The Department also responded to the comments that the proposed time
limits for appeals could disadvantage those with access barriers, disabilities
or have other cultural or social disadvantages, stating:
There is a good deal of overlap in the arguments for the various disadvantaged
groups and it would be erroneous to infer that the Department is not
sensitive to the difficulties faced by people in these groups. It is,
after all, the Department's role to assist the disadvantaged in society.
It is the Department's view that the cogent arguments made about these
groups can be accommodated in the guidelines relating to extension of
time in which to seek a review. [9]
Residence requirements for claims for special benefit
3.8 The NWRN was concerned that proposed section 30 of the Administration
Bill would reduce Special Benefit eligibility by excluding the partners
of Australian citizens and permanent residents who are generally the holders
of subclass 820 and 826 visas, relating to extended eligibility (spouse)
and interdependency. The Network noted that while specific reference to
holders of these visas is made in the current Social Security Act, no
equivalent provision is contained in the Bill nor are the visa subclasses
picked up under the definition of `qualifying residence exemption'. This
variation was perceived as actually changing the residency requirements
for payment eligibility. [10]
3.9 The Department clarified this concern in its response, stating:
It is not intended that section 30 operate to exclude the availability
of benefits to any person who would currently receive them. Because
the names of visas change frequently the drafting approach adopted was
that section 30 would not specify visas. It is intended that the [subclass
820 and 826 visas] will be determined by the Minister to be a visa to
which this subparagraph applies so that section 30 will operate in the
same way as the existing law. [11]
Portability of special benefit
3.10 The NWRN was also concerned that the non-listing of Special Benefit
in proposed section 51 of the Administration Bill would mean that Special
Benefit could no longer be paid for up to 13 weeks when a person is absent
from the country, even in `exceptional circumstances' as is currently
possible. [12]
3.11 The Department advised that Special Benefit has limited portability.
However, if subsection 729(5) [of the Social Security Act] applies to
a person while the person is outside Australia the person is qualified
for Special Benefit and it would be paid to the person under proposed
section 42. In addition, proposed section 12 provides for transfer to
another income support payment without the need for a claim. The Department
also noted that there are planned changes to simplify the portability
provisions for payment of income support for absences overseas with effect
from September 2000. [13]
Social Security Appeals Tribunal (SSAT) – New evidence and membership
3.12 Proposed section 169 provides procedures for dealing with new evidence
during a review by the SSAT. The NWRN was concerned that the procedures
could be used so that new evidence may be excluded from the review of
an earlier decision. The Network noted that because the principles of
natural justice require that genuine merit review should take into account
any and all fresh evidence so as to ensure that the `correct and preferable'
decision is reached, the procedures could result in a denial of natural
justice. [14]
3.13 The Department responded:
The proposed section is clear on the point that where the SSAT is satisfied
that there are reasonable grounds, it may determine the review. Where
it is not satisfied, the SSAT must either refer the decision to the
Secretary for review or adjourn the hearing. The obvious course of action
for the SSAT in such cases will be to refer the decision to the Secretary
who will review the decision taking the new evidence into account. This
then provides the applicant with a new decision and the added protection
of further rights of review by the SSAT if still unsatisfied regarding
that new decision. The SSAT would resume its adjourned hearing and take
the new evidence into account. [15]
3.14 The NWRN also expressed concern at the reduction of the SSAT membership
from four to three. The Network argued that some appeals contain complex
legal, policy, and welfare issues so that the SSAT should retain the capacity
to establish four member panels to ensure an appropriate spread of expertise
in hearing such appeals.
3.15 The Department agreed that Tribunal members require specialist knowledge
in certain reviews. It advised that:
For this reason the membership of the SSAT comprises people with backgrounds
in welfare, medicine and the law…Panels are constituted by senior
members of the SSAT in each State or Territory having regard to the
requirements of each case, including where specialist knowledge is relevant.
Where specialist knowledge is required, an appropriate member is listed
as part of the 3 member panel. [16]
4. RECOMMENDATION
4.1 The Committee reports to the Senate that it has considered the Social
Security (Administration) Bill 1999, Social Security (International Agreements)
Bill 1999, and Social Security (Administration and International Agreements)
(Consequential Amendments) Bill 1999 and recommends that the Bills
proceed.
Senator Sue Knowles
Chairman
August 1999
MINORITY REPORT AUSTRALIAN
LABOR PARTY
SOCIAL SECURITY (ADMINISTRATION) BILL 1999
SOCIAL SECURITY (INTERNATIONAL AGREEMENTS) BILL 1999
SOCIAL SECURITY (ADMINISTRATION AND INTERNATIONAL AGREEMENTS)
(CONSEQUENTIAL AMENDMENTS) BILL 1999
SOCIAL SECURITY (INTERNATIONAL AGREEMENTS) BILL 1999
SOCIAL SECURITY (ADMINISTRATION AND INTERNATIONAL
AGREEMENTS) (CONSEQUENTIAL AMENDMENTS) BILL 1999
Effect of the Bills
These Bills seek to simplify social security legislation by moving into
separate Acts those provisions of the Social Security Act which relate
to international social security regulations.
The Opposition has some doubts about whether this legislation will in
fact make social security law easier to administer, given that there may
be advantages in having all the provisions consolidated in one Act. Given
that this alteration is the result of a detailed review by the Department,
however, we are prepared to support the Bills.
Recommendation
The Opposition recommends that the Bills should be supported.
SOCIAL SECURITY (ADMINISTRATION) BILL 1999
TIME LIMIT ON APPEALS
The Social Security (Administration) Bill would impose a 52 week time
limit on internal appeals, and a 28 day limit on appeals to the Social
Security Appeals Tribunal.
The Opposition notes with concern that the Committee has received submissions
from ACOSS and from the National Welfare Rights Network arguing that both
limitations are likely to disadvantage social security recipients, particularly
those (such as people from non-English speaking backgrounds) who already
experience difficulty in dealing with the social security system.
The Opposition is especially concerned that a person who failed to appeal
to the SSAT within 28 days would consequently be prevented from appealing
to the Administrative Appeals Tribunal, as AAT appeals must first have
gone through the SSAT.
The government attempted to make the same changes to appeal periods in
its A New Tax System (Family Allowance) (Administration) Bill 1999, but
these provisions were successfully opposed in the Senate by the Opposition
and the minor parties.
Consistent with our position on the Family Allowance legislation, the
Opposition will move amendments in the Senate to oppose those provisions
in the Bill which would impose such a restricted time limit on appeals.
CHANGES TO NOTIFICATION PERIOD
For recipients of some benefits, the Bill would reduce from 14 to 7 days
the time allowed for notifying changes of circumstances.
This change was proposed by the government in December 1998 as part of
the Payment Processing Legislation Amendment (Social Security and Veterans'
Entitlements) Bill 1998. On that occasion, the Opposition and minor parties
secured the government's agreement to withdraw the relevant provisions.
Consistent with our policy on the Payment Processing legislation, the
Opposition will be moving amendments in the Senate to retain the 14 day
notification period in those circumstances where it currently applies.
SSAT APPEALS BY WRITTEN SUBMISSION
The Bill allows the Executive Director of the Social Security Appeals
Tribunal to direct that an issue before the Tribunal be conducted by written
submissions, rather than allowing the applicant to appear before the Tribunal
in person.
The government attempted to make this change with the A New Tax System
(Family Allowance) (Administration) Bill 1999, but the provisions were
defeated in the Senate by the Opposition and the minor parties.
Consistent with our policy on this issue, the Opposition will move amendments
in the Senate to stipulate that issues before the SSAT may only be conducted
by written submission if all parties agree.
RECOMMENDATIONS
The Opposition recommends that the Bills be passed, subject to the amendments
outlined above.
Senator Chris Evans
(ALP, Western Australia)
Senator Kay Denman
(ALP, Tasmania)
MINORITY REPORT AUSTRALIAN DEMOCRATS
SOCIAL SECURITY (ADMINISTRATION) BILL 1999
SOCIAL SECURITY (INTERNATIONAL AGREEMENTS) BILL 1999
SOCIAL SECURITY (ADMINISTRATION AND INTERNATIONAL AGREEMENTS)
(CONSEQUENTIAL AMENDMENTS) BILL 1999
1. Summary
1.1 The Australian Democrats have a number of concerns with the provisions
contained in this legislation. These include, but are not limited to:
the imposition of time limits on appeals to the Social Security Appeals
Tribunal (SSAT); the further restriction of eligibility for the Special
Benefit; and the proposed changes to the operation of the SSAT.
1.2 The Australian Democrats indicated strong opposition to a number
of changes to eligibility for Social Security entitlements in the 1997
changes, and are concerned that this legislation represents further disqualification
for entitlements to achieve budget objectives, rather than improve processes.
2. Time Limits
2.1 Current situation
At present, the Social Security Act provides that a decision by an Original
Decision Maker may be appealed at any time, subject to the following limitations:
- A person must appeal from a decision of the Social Security Appeals
Tribunal within 28 days of receiving the written decision.
- A person is only entitled to back payment to the date the original
decision was made if their application for review, to either an Authorised
Review Officer or Social Security Appeals Tribunal is made within three
months of receiving the written decision.
2.2 Intent
The proposed clauses 128 and 142 will impose new time limits on the right
to appeal a joint decision, with a time extension only available to those
who satisfy `special circumstances' criteria. This clearly will curtail
the right to appeal.
2.3 Effect on those with existing barriers
This legislation has the potential to adversely affect those who already
face difficulties in accessing legal services and the appeal process.
This includes people with literacy and numeracy difficulties, mental health
problems, or intellectual disabilities and those in crisis situations
or who are non-English speaking.
2.4 These people often find it difficult to obtain Legal Aid funding,
or legal services and representation and often find the review process
and the decisions difficult to understand. Other may find themselves in
a situation where they are not able to pursue the review process due to
more immediate pressures, such as illness or domestic violence.
2.5 It is therefore possible that they will only seek a review of the
decision when they are no longer able to afford the repayments or when
fraud prosecution proceedings are initiated against them. The time limit
proposed in this legislation will preclude such people from seeking an
appeal of the decision.
2.6 These are often the people who are most in need of the protection
of the review process, as they are often the most dependent on income
support.
2.7 Effect on clients subject to a Compensation Preclusion Period
The Australian Democrats are also concerned that the new time limit provisions
will increase confusion faced by those clients seeking a review of their
preclusion period where they have received a compensation payment.
2.8 Unexpected consequences:
These are likely to include an increase in the appeal numbers, as agencies
and advisers will encourage all people to appeal early to cover themselves.
The accountability of Centrelink staff for their decisions will also be
undermined. Clients will have to appeal within 52 weeks, but Centrelink
is not subject to any time limits, and can hand down decisions when convenient.
Recommendation 1
As the Australian Democrats do not believe the `special circumstances'
provisions contained in clauses 128(2) and 142(2) will be sufficient to
safeguard against such disadvantage, we believe it would preferable if
the legislation were amended to remove clauses 128 and 142.
3. Special Benefit
3.1 Holders of 820 and 826 visas
The Australian Democrats are concerned that proposed section 30 of the
Bill would remove the entitlement to Special Benefit currently held by
partners of Australian citizens and permanent residents by deleting any
reference to 820 and 826 visas. It is important that it be made clear
beyond doubt that this will not be the effect of the changes made I the
Bill.
3.2 Portability of Special Benefit
The Australian Democrats are concerned at the omission of a reference
to Special Benefit in proposed section 51. This appears to remove the
option for Special Benefit to be paid for up to 13 weeks to overseas clients
in exceptional circumstances.
Recommendation 2
To amend proposed section 51 to ensure that people can still be paid
Special Benefit for up to 13 weeks while overseas in exceptional circumstances.
3.3 Applications for Special Benefit
The Australian Democrats are also concerned at the stipulation in sections
29(b) and 20(a) that a person must be in Australia when an application
for Special Benefit in exceptional circumstances is made.
Recommendation 3
To amend the legislation to enable applications for Special Benefit to
be processed while the applicant is overseas.
4. Special circumstances provisions
4.1 The Australian Democrats share the concerns raised by the National
Welfare Rights Network with regard to the granting of extensions of time
under the `special circumstances' exemption by counter staff, rather than
through the appeals processes.
Recommendation 4
That proposed sections 128 and 142 be deleted from the legislation.
5. Social Security Appeals Tribunal
5.1 New evidence
Proposed section 169 provides that if new evidence arises, the SSAT may
refer a decision to the Secretary of the Department of Family and Community
Services for review, or adjourn the hearing.
5.2 Natural justice
The Australian Democrats concur with concerns raised by witnesses that
new evidence must be taken into account in merits review proceedings if
natural justice is to be served.
Recommendation 5
The Australian Democrats will seek to amend the legislation to remove
section 169.
5.3 Number of SSAT members
The Australian Democrats consider it appropriate that the maximum number
of members to constitute the SSAT remains at four, to ensure that hearings
are conducted in the presence of appropriately expert members.
Recommendation 6
The Australian Democrats believe it would be preferable to amend the
legislation to provide that the maximum number of members for an SSAT
hearing remains at four.
Senator Andrew Bartlett
(AD, Qld)
APPENDIX 1 - Submissions received
by the Committee
| 1 |
Australian Council of Social Service |
| 2 |
Department of Family and Community Services
- Response to issues raised in other submissions, dated 9 August 1999
|
| 3 |
Australian Psychiatric Disability Coalition |
| 4 |
Intellectual Disability Rights Service Inc |
| 5 |
National Welfare Rights Network |
| 6 |
Canberra Youth Resource Centre |
FOOTNOTES
[1] Information from Explanatory Memorandum
and Minister's second reading speeches.
[2] Submission No.5, pp.13-17 (NWRN). The particular
barriers faced by people with intellectual or psychiatric disability were
developed in submissions by the Intellectual Disability Rights Service
and the Australian Psychiatric Disability Coalition – Submissions
Nos 3 and 4.
[3] Submission No.1, p.1 (ACOSS).
[4] Submission No.5, p.18 (NWRN).
[5] Submissions No.1, p.1 (ACOSS); No.3, pp.2-3
(APDC); No.4, p.3 (IDRS).
[6] Submission No.2, p.3 (DFaCS).
[7] Submission No.2, p.4. Also DFaCS Response
to issues raised in submissions, pp.4-5.
[8] DFaCS Response to issues raised in submissions,
p.5.
[9] DFaCS Response to issues raised in submissions,
p.6.
[10] Submission No.5, pp.2-6 (NWRN).
[11] DFaCS Response to issues raised in submissions,
p.2.
[12] Submission No.5, pp.7-8 (NWRN).
[13] DFaCS Response to issues raised in submissions,
p.2.
[14] Submission No.5, pp.19-20.
[15] DFaCS Response to issues raised in submissions,
p.7.
[16] DFaCS Response to issues raised in submissions,
p.7.