Explanatory Memorandum
(Circulated by the authority of the Minister for Families, Housing, Community Services and Indigenous Affairs, the Hon Jenny Macklin MP)FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND OTHER LEGISLATION AMENDMENT (MISCELLANEOUS MEASURES) BILL 2008
OUTLINE
This bill makes minor amendments to the social security law and the family assistance law to improve the operation and effectiveness of the Social Security Appeals Tribunal (SSAT), as follows:
- •
- allow SSAT members to be appointed for a term of up to five years;
- •
- allow the SSAT to make oral decisions on 'affirmed' cases; and
- •
- allow Centrelink to make oral submissions to SSAT hearings.
The bill also makes technical amendments to several Acts, primarily the social security law, to repeal references to redundant payments or repealed provisions, correct cross-references, correct misdescribed amendments, and address similar matters.
Financial impact statement
There is no financial impact from these amendments.
NOTES ON CLAUSES
Clause 1 sets out how the Act is to be cited, that is, the Families, Housing, Community Services and Indigenous Affairs And Other Legislation Amendment (Miscellaneous Measures) Act 2008.
Clause 2 provides a table that sets out the commencement dates of the various sections in, and Schedules to, the Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule.
This explanatory memorandum uses the following abbreviations:
- •
- 'Family Assistance Act' means the A New Tax System (Family Assistance) Act 1999;
- •
- 'Family Assistance Administration Act' means the A New Tax System (Family Assistance) (Administration) Act 1999;
- •
- 'Social Security Act' means the Social Security Act 1991;
- •
- 'Social Security Administration Act' means the Social Security (Administration) Act 1999;
- •
- 'Income Tax Assessment Act' means the Income Tax Assessment Act 1936;
- •
- 'Safety, Rehabilitation and Compensation Act' means the Safety, Rehabilitation and Compensation Act 1988; and
- •
- 'Veterans' Entitlements Act' means the Veterans' Entitlements Act 1986.
Schedule 1 - Amendments relating to the Social Security Appeals Tribunal
Summary
This Schedule makes minor amendments to the social security law and the family assistance law to improve the operation and effectiveness of the Social Security Appeals Tribunal (SSAT), as follows:
- •
- allow Centrelink to make oral submissions to SSAT hearings;
- •
- allow the SSAT to give oral reasons on 'affirmed' cases; and
- •
- allow SSAT members to be appointed for a term of up to five years.
Background
The SSAT is a statutory body established under the Social Security Administration Act to conduct merits review of administrative decisions made under the social security law, the family assistance law, the child support legislation and various other pieces of legislation.
Oral submissions
Currently, the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs or the Department of Education, Employment and Workplace Relations, or the Centrelink Chief Executive Officer (Centrelink), may make written submissions to the SSAT, but not oral submissions in social security and family assistance cases. However, the Child Support Agency (CSA) may make written, as well as oral, submissions at an SSAT hearing.
This measure will bring SSAT operations under the social security and family assistance jurisdictions into line with SSAT operations under the child support jurisdiction. It will allow Centrelink to request permission to make oral submissions, or both oral and written submissions, and allow the SSAT to grant such a request. Further, it will allow the SSAT to direct Centrelink to make oral submissions to the SSAT. The SSAT will be able to determine that oral submissions by Centrelink are to be made by telephone or by means of other electronic communications equipment.
This measure will increase the flexibility and efficiency of the SSAT by providing the option of receiving submissions from Centrelink orally. It is anticipated that this power to allow or direct oral submissions will be utilised in complex cases where further explanation may clarify a complicated or technical matter and assist the SSAT to reach the correct or preferable decision. The facility to allow and/or direct oral submissions will help to avoid costly and inefficient adjournments.
The measure will allow Centrelink to request permission to make an oral submission in circumstances where, for example, new evidence was provided to the SSAT of which Centrelink was not advised prior to the hearing. This will allow Centrelink to respond to new evidence.
As a matter of practice, any use of this provision will be balanced with the existing statutory obligations of the SSAT to be quick, economical, just, equitable and informal, ensuring an adversarial environment is not created.
Oral reasons for affirmed decisions
Currently, in relation to social security and family assistance cases, the SSAT must set out its decisions, as well as the reasons for its decisions, in writing. In relation to child support decisions, however, the SSAT has the option of giving reasons orally to the parties. This is subject to the right of the party to request written reasons where oral reasons only were provided.
As with the oral submissions measure above, this measure will bring the SSAT operations under the social security and family assistance jurisdictions more into line with those under the child support jurisdiction. It will give the SSAT the option of giving reasons orally, instead of in writing, but only where the SSAT has affirmed the decision of Centrelink. The requirement for the SSAT to prepare a written statement that sets out the decision itself remains unchanged. It is intended that giving oral reasons in less complex cases will provide more timely responses for parties to the review and improve the SSAT's overall efficiency.
If the SSAT gives the reasons for the decision orally, either party will be able, within 14 days after the day on which the written statement of the decision is given, to request a written statement that sets out the reasons for the decision and the findings on any material questions of fact, and refers to the evidence or other material on which the findings of fact are based.
Where the SSAT has varied or set aside a decision of Centrelink, the current requirements to provide a written statement setting out the decision as well as the reasons for the decision will remain.
Terms of appointment
SSAT members, other than the Executive Director, may currently be appointed for terms of up to three years. This measure will extend the maximum term by which an SSAT member may be appointed, from three years to five years. This is consistent with the current Australian Government policy that appointments of statutory office holders are generally to be made for a period of five years.
Commencement
The amendments made by this Schedule commence on the day after this bill receives the Royal Assent.
Explanation of the changes
Amendments to the Family Assistance Administration Act
Items 1 to 13 make amendments to the Family Assistance Administration Act to give effect to these measures.
Oral submissions
The current Subdivision B (of Division 3 of Part 5 of the Family Assistance Administration Act) provides for how the parties to a review are to make submissions to the SSAT. The amendments made by items 1 to 10 effectively split the current Subdivision B into two new Subdivisions. New Subdivision B will provide specifically for submissions from parties other than the head of an agency. Rules about submissions by the head of an agency will be removed from current Subdivision B and located in new Subdivision BA. This new structure will make it easier to locate the differing rules about making submissions to the SSAT which apply to the head of an agency, and those applying to parties other than the head of an agency. (The definition of head of an agency is provided in section 3 of the Family Assistance Administration Act.)
Items 1 to 9 make consequential amendments to current Subdivision B to put into effect the new structure discussed above.
Item 10 inserts new Subdivision BA, consisting of new section 126A, which contains the substantive provisions governing how the head of an agency is to make submissions to the SSAT and including the new provisions relating to oral submissions.
New subsection (1) provides that the head of an agency that is a party to a review of a decision may make written submissions to the SSAT.
New subsection (2) provides that the head of an agency may also request permission to make oral submissions, or both oral and written submissions, to the SSAT. The request is to be made in writing, to the Executive Director of the SSAT, and must explain how such submissions would assist the SSAT.
New subsection (3) further provides that the Executive Director may, in writing, grant the request for permission to make oral submissions. However, the Executive Director may grant the request only if he or she is of the opinion that oral submissions would assist the SSAT. In forming such an opinion, the Executive Director is to have regard to the SSAT objective. Section 110 provides that the SSAT objective is to provide a mechanism of review that is fair, just, economical, informal and quick.
In addition, new subsection (4) empowers the Executive Director to order the head of an agency to make oral submissions, or both oral and written submissions, to the SSAT. Again, the Executive Director may exercise this power only if he or she is of the opinion that oral submissions would assist the SSAT, having regard to the SSAT objective.
Oral submissions to the SSAT may generally be made either in person or by telephone. New subsection 126A(5) provides that the Executive Director, in exercising his or her power under subsection (3) or (4), may determine specifically that oral submissions are to be made by telephone or by other electronic communications equipment. New subsection 126A(6) makes it clear that, if the Executive Director does not specifically determine that oral submissions are to be made by telephone, then oral submissions may be made either in person, by telephone or by other electronic communications equipment.
Item 11 creates a new Subdivision BB - Other evidence provisions. This Subdivision comprises current sections 127 to 129 of current Subdivision B.
Oral reasons for affirmed decisions
The current section 141 requires the SSAT to notify the parties of its decisions. The amendments contained in items 12 and 13 will split current section 141 into three elements, under three new headings. New subsections (1A) to (1C) provide the new rules which will apply where the SSAT affirms a decision. A modified subsection (1) provides the rules which will apply where the SSAT sets aside or varies a decision. Current subsections (2) and (3) provide for the requirement to notify of further review rights and will apply whenever the SSAT makes a decision on a review.
Item 12 inserts new subsections 141(1A) to (1C), which apply only if the SSAT affirms a decision. New subsection (1A) provides that, within 14 days after making the decision, the SSAT must prepare a written statement (the initial statement ), which sets out the decision of the SSAT, and give this statement to all parties. Also within 14 days after making the decision, the SSAT must do either of the following:
- (i)
- give reasons for the decision orally to each party to the review. In doing so, the SSAT must explain that the party may make a written request for a written statement under subparagraph (1A)(c)(ii) (a statement of reasons) within 14 days after the initial statement is given to the party; or
- (ii)
- give to each party a written statement that sets out the reasons for the decision and the findings on any material questions of fact, and refers to the evidence or other material on which the findings are based (a statement of reasons). This statement may be provided as part of the initial statement.
Further, the SSAT must return to the Secretary to the Department any documents provided by the Secretary, and give copies of any other documents that contain evidence or material on which the findings of fact are based.
New subsection (1B) provides that, if the SSAT does not give a statement of reasons (that is, it chooses to give reasons orally), either party may, within 14 days after the initial statement is given to the party, make a request for a statement of reasons. This request must be in writing.
New subsection (1C) provides that the SSAT must comply with the request under subsection (1B) within 14 days after the day on which the SSAT receives the request.
Item 13 amends subsection 141(1) so that it applies only where the SSAT varies or sets aside a decision.
Current subsection 141(2) requires the SSAT to give, when the SSAT determines a review (regardless of whether it affirms, varies or sets aside a decision), a written notice that informs the parties of their rights of appeal to the AAT. This statement of review rights may be provided as part of the initial statement or as part of the statement of reasons.
Application
Item 14 provides that the amendments made by items 1 to 13 apply to applications for review by the SSAT that are made on or after the commencement of those items.
Amendments to the Social Security Administration Act
Items 15 to 22 amend the Social Security Administration Act to give effect to this measure.
Oral submissions
The current Subdivision B (of Division 4 of Part 4 of the Social Security Administration Act) provides for how parties to a review are to make submissions to the SSAT. The amendments made by items 15 to 19 effectively split the current Subdivision B into two new Subdivisions. New Subdivision B will provide specifically for submissions from parties other than the Secretary. Rules about submissions by the Secretary will be removed from current Subdivision B and located in new Subdivision BA. This new structure will make it easier to locate the differing rules about making submissions to the SSAT which apply to the Secretary and those applying to parties other than the Secretary.
Items 15 to 18 make consequential amendments to current Subdivision B to put into effect the new structure discussed above
The definition of the Secretary is provided in subsection 23(1) of the Social Security Act to mean the Chief Executive Officer of Centrelink in cases where the review of a decision was made by Centrelink. Where review of a decision was not made by Centrelink, the Secretary is defined to mean the Secretary to the Department.
Item 19 inserts new Subdivision BA, consisting of new section 163A, which contains the substantive provisions governing how the Secretary is to make submissions to the SSAT. New section 163A mirrors new section 126A of the Family Assistance Administration Act, and the effect of this provision is explained above.
Oral reasons on affirmed decisions
Current section 177 requires the SSAT to notify the parties of its decisions. The amendments contained in items 21 and 22 will split current section 177 into three elements, under three new headings. New subsections (1A) to (1C) provide the new rules which will apply where the SSAT affirms a decision. A modified subsection (1) provides the rules which will apply where the SSAT sets aside or varies a decision. Existing subsections (2) and (3) provide for the requirement to notify of further review rights and will apply whenever the SSAT makes a decision on a review.
Item 21 inserts new subsections 177(1A) to (1C), which apply only if the SSAT affirms a decision. New subsections 177(1A) to (1C) mirror new subsections 141(1A) to (1C) of the Family Assistance Administration Act, and the effect of these provisions is explained above.
Item 22 amends subsection 177(1) in a way which mirrors the amendment to subsection 141(1) of the Family Assistance Administration Act, as explained above.
Terms of appointment
Item 23 repeals subclause 4(2) of Schedule 3 to the Social Security Administration Act and substitutes a new subclause, which provides that the period by which an SSAT member holds office must not exceed five years.
Application
Item 24(1 ) provides that the amendments made by items 15 to 22 apply to applications for review by the SSAT that are made on or after the commencement of those items.
Item 24(2 ) provides that the amendment made by item 23 applies in relation to appointments made on or after the commencement of that item.
Schedule 2 - Technical amendments removing references to benefits that no longer exist
Summary
This Schedule makes technical amendments to the Social Security Act, the Income Tax Assessment Act, the Safety, Rehabilitation and Compensation Act and the Veterans' Entitlements Act to repeal redundant references to disability wage supplement and rehabilitation allowance, which are no longer paid under the social security law.
Background
Disability wage supplement
The Social Security and Veterans' Affairs Legislation Amendment (Family and Other Measures) Act 1997 repealed Part 2.9 of the Social Security Act, which contained the qualification provisions for disability wage supplement, and removed most references to disability wage supplement. That Act subsumed disability wage supplement into disability support pension. However, some redundant references to disability wage supplement remain in the social security law.
Rehabilitation allowance
Rehabilitation allowance was phased out as part of the Disability Reform Package in 1991. The Social Security (Disability and Sickness Support) Amendment Act 1991 phased out rehabilitation allowance and amended the Social Security Act. Persons granted a rehabilitation allowance immediately before the changes continued to receive the allowance for the period of their involvement with the relevant rehabilitation program but no new grants have been made since 12 November 1991. The Family and Community Services Legislation Amendment Act 2000 removed the rehabilitation allowance savings provisions and repealed clause 35 of Schedule 1A to the Social Security Act and most references to rehabilitation allowance. However, some references remain in the Social Security Act, as well as in the Income Tax Assessment Act, the Safety, Rehabilitation and Compensation Act and the Veterans' Entitlements Act.
Effect of amendments
The amendments made by this Schedule do not affect the operation of the Social Security Act, the Income Tax Assessment Act, the Safety, Rehabilitation and Compensation Act or the Veterans' Entitlements Act, as the amendments in the Act are purely technical in nature. References to disability wage supplement and rehabilitation allowance need to be preserved in paragraphs (ba) and (j) of the definition of former payment type in section 17 of the Social Security Act to ensure the correct operation of the definition.
The amendments made by this Schedule commence on the day on which this Act receives Royal Assent.
Explanation of the changes
Disability wage supplement and rehabilitation allowance
Amendments to the Income Tax Assessment Act
Items 1 to 5 deal with the repeal of the now redundant term rehabilitation allowance from the Income Tax Assessment Act, and the resulting consequential amendments.
Item 2 repeals subparagraph 102AC(2)(c)(iii). Item 1 is consequential to item 2 .
Item 4 repeals paragraph (b) of the definition of invalid relative in subsection 159J(6). Item 3 is consequential to item 4 .
Item 5 repeals subsection 159L(6).
Amendments to the Safety, Rehabilitation and Compensation Act
Item 6 repeals subsection 37(6) of the Safety, Rehabilitation and Compensation Act, which is redundant as it relates solely to rehabilitation allowance.
Amendments to the Social Security Act
Items 7 to 39 deal with the repeal of the two redundant terms disability wage supplement and rehabilitation allowance from the Social Security Act, and the resulting consequential amendments.
Item 7 amends the definition of pensioner couple in subsection 9(1) by omitting 'income support supplement or a rehabilitation allowance' and substituting 'or income support supplement.'
Item 8 repeals paragraph (ga) of the definition of social security pension in subsection 23(1).
Item 9 is a separate technical numbering amendment.
Item 10 repeals paragraph 147(1)(b) and substitutes a new paragraph (b), omitting reference to disability wage supplement and rehabilitation allowance.
Item 11 is a separate technical numbering amendment.
Item 12 amends paragraph 186(1)(d) by omitting 'disability wage supplement or rehabilitation allowance'.
Item 13 repeals table item 6 in section 573A.
Item 14 repeals the heading to Division 2 of Part 2.13A and substitutes a new heading, 'Division 2 - Recipients of disability support pension.'
Items 15, 16, 17 and 18 omit references to rehabilitation allowance from subparagraph 771HA(1)(c)(i), paragraphs 771NU(1)(e) and 3(e), the note to step 4 of the method statement in subsection 771NX(1), and subsection 771NX(6) respectively.
Item 20 repeals paragraph 1061PJ(2)(h). Item 19 is consequential to item 20 .
Item 21 omits 'or disability wage supplement' in paragraph 1064(1)(b). The heading to section 1064 is amended by omitting 'and of disability wage supplement'.
Item 22 omits 'or to a person's disability wage supplement' in subsection 1064(2).
Item 23 repeals subparagraphs 1064(5)(b)(vi), 1064(6)(b)(iv) and 1064(7)(b)(vi). The headings to sections 1065 and 1066B are amended by omitting 'and of disability wage supplement'.
Item 24 repeals subparagraph 1067F(1)(d)(ix).
Items 25 and 26 omit 'income support supplement or a rehabilitation allowance' and substitute 'or income support supplement' at point 1067G-H2 and paragraph 1067G-H27(b).
Item 27 repeals table item 10 in Module L of the Youth Allowance Rate Calculator in section 1067G.
Item 28 repeals subparagraph 1067K(1)(d)(viii).
Items 29, 30, 31 and 32 omit 'income support supplement or a rehabilitation allowance' and substitute 'or income support supplement' at point 1067L-D2, paragraph 1067L-D26(b), point 1068-G2 and paragraph 1068-G10(b).
Item 34 repeals subparagraph 1133(1)(a)(viii). Item 33 is consequential to item 34 .
Item 36 repeals subparagraph 1133(2)(a)(vii). Item 35 is consequential to Item 36 .
Item 37 omits 'or allowance' from paragraph 1133(2)(b).
Items 38 and 39 omit 'or the disability wage supplement' and 'or disability wage supplement' in paragraphs 1184L(2)(b) and 1184L(2)(c) respectively.
Amendments to the Veterans' Entitlements Act
Items 40 to 49 deal with the removal of the redundant term rehabilitation allowance from the Veterans' Entitlements Act, and the resulting consequential amendments.
Item 40 repeals the note to the definition of partnered ( partner getting pension ) in subsection 5E(1).
Item 41 repeals the note to subsection 5E(5).
Item 42 repeals paragraph (i) of the definition of child in subsection 5F(1).
Item 43 repeals subparagraph 5H(8)(w)(viii).
Items 44, 45 and 46 repeal the notes to section 36C, section 37C and subsection 38C(1) and substitute new notes omitting reference to rehabilitation allowance.
Item 47 omits '(other than a rehabilitation allowance)' from subparagraph 58N(a)(iv).
Item 48 repeals note 1 to point SCH6-C5. Item 49 is consequential to
item 48 .
Schedule 3 - Other technical amendments
Summary
This Schedule makes further technical amendments to several Acts.
Background
The technical amendments made by this Schedule are to repeal redundant provisions, headings and references to repealed provisions, to correct a cross-reference and to correct a misdescribed amendment.
The amendments commence either on Royal Assent or, for the correction of the misdescribed amendment, on the date in July 2007 that would allow the original amendment to have effect (there being no adverse consequences for any person from this retrospectivity).
Explanation of the changes
Amendments to the Aboriginal and Torres Strait Islander Act 2005
Item 1 repeals a redundant Schedule from the Aboriginal and Torres Strait Islander Act 2005 (ATSI Act). Schedule 1 is expressed to arise from subsection 91(1) of the ATSI Act. However, section 91 was in Part 3 of the Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Act), which was repealed by item 1 of Schedule 3 to the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (ATSIC Amendment Act), item 3 of Schedule 2 of which also re-named the Act. Schedule 1 to the ATSI Act therefore no longer has an enabling provision and is redundant.
Items 2 and 3 substitute the note to the heading of each of Schedules 2 and 2A to the ATSI Act. This effectively is to repeal a redundant reference to a repealed enabling provision. Each of these Schedules is currently expressed to arise from sections 111 and 143E of the ATSI Act. However, section 111, which (like section 91, as mentioned above) was in Part 3 of the ATSIC Act, was repealed by item 1 of Schedule 3 to the ATSIC Amendment Act. Section 143E remains relevant to each of Schedules 2 and 2A to the ATSI Act, but the reference to section 111 is now redundant and is being removed from each Schedule.
Amendments to the Native Title Amendment (Technical Amendments) Act 2007
Items 4 and 5 correct a misdescribed amendment - item 9 of Part 1 of Schedule 2 to the Native Title Amendment (Technical Amendments) Act 2007. That item attempted to amend section 203FI of the Native Title Act 1993 to insert reference to new sections 203FBA and 203FBB. However, the amendment failed because there was in fact no comma in section 203FI in the position described by item 9. These new amendments give effect to the original amendment.
Amendment to the Social Security Act
Item 6 amends step 7 of the method statement in point 1068-G1 of the Social Security Act. The method statement describes the application of the ordinary income test in Benefit Rate Calculator B. Step 7 currently refers to point 1068-H12 for the ordinary income free area. The amendment corrects this cross-reference, which should be to point 1068-G12.
Amendment to the Social Security Administration Act
Item 7 repeals the redundant heading to a repealed Subdivision in the Social Security Administration Act. The Subdivision itself, Subdivision D of Division 1 of Part 3 ('Time limits for claims for maternity allowance and maternity immunisation allowance'), consisting of section 19 alone, was repealed by item 19 of Schedule 3 to the A New Tax System (Family Assistance and Related Measures) Act 2000, so the heading is now redundant and is being removed.