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Budget Savings (Omnibus) Bill 2016
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2016

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

Budget Savings (Omnibus) Bill » 2016

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Treasurer, the Hon Scott Morrison MP)







Table of contents

General outline and financial impact............................................................ 5

Chapter 1               Minimum repayment income for HELP debts................ 23

Chapter 2               Indexation of higher education support amounts........ 27

Chapter 3               Removal of HECS-HELP benefit.................................... 29

Chapter 4               Job commitment bonus..................................................... 35

Chapter 5               Australian Renewable Energy Agency’s finances...... 45

Chapter 6               Indexation of private health insurance thresholds....... 47

Chapter 7               Abolishing the National Health Performance Authority 51

Chapter 8               Aged care............................................................................. 57

Chapter 9               Dental services................................................................... 73

Chapter 10            Newly arrived resident’s waiting period.......................... 91

Chapter 11            Student start-up scholarships ........................................ 121

Chapter 12            Interest charge .................................................................. 129

Chapter 13            Debt recovery .................................................................... 157

Chapter 14            Parental leave payments ................................................ 187

Chapter 15            Fringe benefits................................................................. 197

Chapter 16            Carer allowance ............................................................... 211

Chapter 17            Indexation of family tax benefit and parental leave thresholds       215

Chapter 18            Pension means testing for aged care residents......... 219

Chapter 19            Employment income........................................................ 229

Chapter 20            Psychiatric confinement ................................................. 233

Chapter 21            Closing carbon tax compensation to new welfare recipients           245

Chapter 22            Rates of R&D tax offset.................................................. 289

Chapter 23            Single touch payroll reporting....................................... 295

Chapter 24            Single appeal path under the Military Rehabilitation and Compensation Act............................................................................................ 393

 

 



Financial impact

The measures in this « Bill » have the following estimated impact on the underlying cash balance over the forward estimates ($m):

No.

Measure Title

2015-16

2016-17

2017-18

2018-19

2019-20

Total

1

Minimum repayment income for HELP debts

0.0

-2.1

-2.2

2.8

4.8

3.3

2

Indexation of higher education support amounts

0.0

0.0

0.0

9.7

44.9

54.6

3

Removal of HECS-HELP benefit

0.0

0.0

7.2

7.1

7.3

21.5

4

Job commitment bonus

-0.4

45.8

66.1

65.5

65.0

242.1

5

Australian Renewable Energy Agency’s finances

0.0

0.0

392.0

169.7

448.6

1,010.3

6

Indexation of private health insurance thresholds

0.0

0.0

0.0

127.3

253.7

381.0

7

Abolishing the National Health Performance Authority

-0.7

22.1

21.8

22.7

22.7

88.6

8

Aged care

-3.5

21.2

24.2

20.2

18.4

80.5

9

Dental services

-4.1

95.0

50.5

32.9

-121.9

52.4

10

Newly arrived resident’s waiting period

0.0

27.5

111.5

86.2

87.4

312.5

11

Student start-up scholarships

0.0

0.0

146.7

92.6

58.7

405.6

12

Interest charge

0.0

179.5

120.2

59.2

28.2

387.0

13

Debt recovery

8.3

49.9

49.8

49.8

0.0

157.8

14

Parental leave payments

-0.9

24.1

35.9

37.3

37.4

133.7

15

Fringe benefits

-1.9

6.8

39.0

44.3

43.9

132.1

16

Carer allowance

0.0

10.4

29.0

34.3

34.9

108.6

17

Indexation of family tax benefit and parental leave thresholds

0.0

-0.8

54.1

115.2

162.4

330.9

18

Pension means testing for aged care residents

0.0

-0.8

27.1

34.5

56.3

117.1

19

Employment income

-1.1

-2.0

-11.5

36.9

39.2

61.5

20

Psychiatric confinement

0.0

4.2

9.6

11.1

12.9

37.8

21

Closing carbon tax compensation to new welfare recipients

-1.6

34.8

282.2

422.1

553.7

1,291.2

22

Rates of R&D tax offset

0.0

0.0

160.0

210.0

230.0

600.0

23

Single touch payroll reporting

-85.4

-48.0

-12.7

224.5

12.0

90.4

24

Single appeal path under the Military Rehabilitation and Compensation Act

-0.9

0.4

1.3

1.4

1.4

3.6

Total

-92.1

467.9

1,601.6

1,917.4

2,101.9

6,104.1

                                                                                                        

Minimum repayment income for HELP debts

Schedule 1 to this « Bill » establishes a new minimum repayment threshold for HELP debts of 2 per cent when a person’s income reaches $51,957 in the 2018-19 income year.

Human rights implications :  See Statement of Compatibility with Human Rights at the end of Chapter 3.

Indexation of higher education support amounts

Schedule 2 to this « Bill » changes the index for amounts that are indexed annually under the Higher Education Support Act 2003 , from the Higher Education Grants Index (HEGI) to the Consumer Price Index (CPI), with effect from 1 January 2018.

Human rights implications :  See Statement of Compatibility with Human Rights at the end of Chapter 3.

Removal of HECS-HELP benefit

Schedule 3 to this « Bill » will discontinue the HECS-HELP benefit from 1 July 2017.

Human rights implications :  See Statement of Compatibility with Human Rights at the end of Chapter 3.

Job commitment bonus

Schedule 4 to this « Bill » would give effect to the ‘cessation of the job commitment bonus’ measure announced in the 2016-17 Budget.

Currently, a person aged 18 to 30 who has been receiving particular income support payments for at least 12 months can qualify for a tax-free bonus of $2,500 if they complete 12 months of continuous gainful work and do not receive an income support payment during that period. In addition, such persons can qualify for a second tax-free bonus of $4,000 if they complete a further period of 12 months of gainful work and do not receive an income support payment during that further period.

The job commitment bonus was intended to encourage young long-term unemployed job seekers to find and keep a job. However, analysis of the program awareness and impact identified that the program has not had a significant impact on young job seekers either obtaining or remaining in employment.

This Schedule would repeal provisions of the social security law that provide for the job commitment bonus. It also includes transitional provisions that would ensure that people who have qualified for a job commitment bonus before the commencement date would be able to claim the bonus (tax-free) within a particular timeframe.

Human rights implications :  See Statement of Compatibility with Human Rights at the end of Chapter 4.

Australian Renewable Energy Agency’s finances

The Australian Renewable Energy Agency (ARENA), as established by the Australian Renewable Energy Agency Act « 2011 » (ARENA Act), has the dual objectives of improving the affordability of renewable energy and increasing supply of renewable energy in Australia. Its legislated functions, as provided in section 8 of the ARENA Act, are primarily to provide financial assistance for research into, and development and deployment of, renewable energy technologies, and to engage in knowledge sharing in relation to the same.

The Government previously expressed a policy intention to abolish ARENA. To this end, an abolition « bill » was introduced into the House of Representatives on 19 June 2014, and savings from the abolition of ARENA were factored into the 2014-15 Federal Budget. While the abolition « bill » passed the House on 1 September 2014, and was introduced into the Senate on the following day, the Government was unable to gain support in the Senate for the abolition « bill » . Consequently, the « bill » remained in second reading debate in the Senate between 2 September 2014 and 17 April 2016 (when it lapsed with the prorogation of the 44th Parliament).

In March 2016 the Government decided to retain ARENA and announced it would work with the Clean Energy Finance Corporation (CEFC) on a proposed new Clean Energy Innovation Fund [1] - the funding for which will be made available from within the CEFC’s existing appropriation. ARENA has also been given ongoing resources through the 2016-17 Budget to manage its active commitments to almost 200 projects (worth around $1 billion), and is making available up to $100 million in new funding for large-scale solar deployment projects.

It remains the Government’s intention to realise the savings from ARENA incorporated in the 2014-15 Budget. The Schedule seeks to realise these savings.

Realisation of financial savings from ARENA has been consistent Government policy since it was announced in the 2014-15 Budget.

Date of effect The amendments commence upon the day after the « Bill » receives the Royal Assent.

Human rights implications :  See Statement of Compatibility with Human Rights at the end of Chapter 5.

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) agreed that the refocusing of ARENA’s role and reduced legislated funding had a nil regulatory impact, as set out in a Cabinet-in-Confidence short-form Regulation Impact Statement (RIS). The OBPR reference number for this matter is 19886.

Indexation of private health insurance thresholds

The purpose of Schedule 6 to this « Bill » is to pause the income thresholds that determine the tiers for the Medicare Levy Surcharge (MLS) and the Australian Government Rebate (the Rebate) on private health insurance at the 2014-15 rates until 2020-21.

This Schedule amends the Private Health Insurance Act 2007 (the PHI Act) to set income thresholds at the 2014-15 rates in the financial years 2018-19, 2019-20 and 2020-21.

Human rights implications : See Statement of Compatibility with Human Rights at the end of Chapter 6.

Abolishing the National Health Performance Authority

Schedule 7 to this « Bill » repeals Chapter 3 of the National Health Reform Act « 2011 » , with the purpose of abolishing the National Health Performance Authority established under the Act.

The Schedule will enable health system performance analysis and reporting functions previously spread across two Health Portfolio Agencies to be streamlined, focussed and better coordinated.

The responsibilities of the National Health Performance Authority (NHPA) overlap with those of the Australian Institute of Health and Welfare (AIHW) in terms of the collection and dissemination of accurate, relevant and useful information on the performance of Australia’s health system and health services. The overlap resulted in the duplication of functions and an uncoordinated approach to reporting. The closure of the NHPA and the rationalisation of functions across the two agencies will strengthen AIHW’s national leadership role in the collection and publication of health information and statistics.

In abolishing the National Health Performance Authority, the functions of the Chief Executive Officer, Authority staff and the Authority’s Committees cease. The Schedule includes transitional provisions covering the transfer of assets and liabilities to the AIHW.

Human rights implications :  See Statement of Compatibility with Human Rights at the end of Chapter 7.

Aged care

Schedule 8 to this « Bill » deals with proposed amendments to the Aged Care Act 1997 (the Aged Care Act) relating to the creation of civil penalties for approved providers of aged care who engage in certain behaviours and other matters.

The subsidy the Commonwealth Government pays to approved providers is substantially affected by appraisals (and classifications that are based on appraisals) of care recipients’ care needs. This Schedule introduces a civil penalty of up to 60 penalty units if approved providers on more than one occasion in a two year period give false, misleading or inaccurate information in connection with an appraisal or reappraisal.

This Schedule makes it easier for the Secretary to require an approved provider to re-appraise its care recipients or suspend it from making further appraisals if the provider gives false, misleading or inaccurate information in connection with an appraisal or reappraisal.

In addition, if the Secretary suspects on reasonable grounds that a care recipient’s care needs have decreased significantly, this Schedule gives the Secretary the power to require the approved provider to re-appraise the care recipient.

The Schedule also changes the date that a change in classification following a review by the Department is taken to have effect. These amendments will allow the Secretary to recover overpayments of subsidy from the date the care recipient was originally classified. Currently, the Secretary can only recover overpayments for a maximum of six months prior to a change in classification.

The Schedule also amends the Aged Care Act to allow for the charging of a fee if an approved provider seeks reconsideration by the Secretary of a classification downgrade.

This Schedule also amends the Aged Care Act to make it clear that in deciding on a classification level, the Secretary can take into account the manner in which care is provided to a care recipient, including but not limited to the qualifications of a person required to provide care or treatment.

This Schedule will abolish the adviser and administrator panel arrangements set out in the Aged Care Act 1997. Approved providers under sanction would be able to choose their own advisers and administrators. The measure also includes the removal of the requirement that the Secretary approve advisers that assist with Aged Care Funding Instrument assessments for approved providers who are to be suspended from this activity.

Approved providers would be required to have the adviser and/or administrator appointed and on site within a specified timeframe, to mitigate risks to care recipients. The Secretary and the Australian Aged Care Quality Agency will retain capacity to monitor the approved provider, including during the sanction period. Further, the Secretary will still have the ability revoke approved provider status and withdraw Commonwealth funding.

This measure will amend the obligations in the Aged Care Act for approved providers to notify the Secretary of certain changes to any of its key personnel in circumstances that do not materially affect the approved provider’s suitability to be a provider of aged care

Date of effect :  The table in this clause sets out when the Act’s provisions will commence.

The table provides that Schedule 8 Part 1 will commence on a day or days to be fixed by proclamation. However, if any of the provisions do not commence within the period of 6 months beginning on the day this Act receives Royal Assent, they commence on the day after the end of that period.

The table provides that Schedule 8 Part 2 will commence the day after this Act receives Royal Assent.

The table provides that Schedule 8 Part 3 will commence on the 28th day after this Act receives Royal Assent.

Human rights implications : See Statement of Compatibility with Human Rights at the end of Chapter 8.

Dental services

Schedule 9 to this « Bill » amends the Dental Benefits Act 2008 to close the Child Dental Benefits Schedule (CDBS) from 31 December 2016, and establish a framework for agreements between the Commonwealth and the states and territories (the states) to underpin a Child and Adult Public Dental Scheme.

The Child and Adult Public Dental Scheme will deliver better dental care to public patients.  Both adults on concession cards and all children will be eligible to receive public dental services under the Scheme.

Under the Scheme the Commonwealth will provide funding to the states from an ongoing capped special appropriation under the Dental Benefits Act 2008 to improve access to public dental services.  Funding will be made available to the states under a National Partnership Agreement (NPA) to operate from 1 January 2017 for an initial five year period.  After the fourth year, the program will be reviewed and the outcome of the review will inform the policy parameters of the next Agreement.

It is anticipated that this long term certainty of Commonwealth funding will enable the states to invest in infrastructure and improve dental service provision.  The states will retain the ability to contract with private providers to deliver public dental services where required.

The Commonwealth contribution under the program will be set at 40 per cent of the efficient price of provision of dental services.  The states will meet the balance of the costs of service provision.  They will continue to manage their waiting lists through controls such as co-payment arrangements; will determine state-specific eligibility criteria (subject to the Commonwealth’s policy intent that all children will be eligible for public dental services); and will continue to provide services based on clinical need.

With the additional funding available, more services will be provided which should reduce waiting times.  It is expected that the Commonwealth funding provided through the Child and Adult Public Dental Scheme will enable the states to treat an additional 600,000 patients annually.

The CDBS will be closed from 31 December 2016 (although benefits will still be paid for eligible services provided on or before that date).  The CDBS has been poorly utilised, with only around a third of eligible children accessing services since it began in 2014.

Public dental patients are more likely to suffer from decay, tooth loss and gum disease than the general population.  Financially disadvantaged Australians eligible for public dental services, namely pensioners and concession card holders, have a substantially reduced ability to access affordable and timely oral health care.

The Child and Adult Public Dental Scheme will focus on improving dental services for all public dental patients, including an increasing focus on preventative dental care.

Human rights implications :  See Statement of Compatibility with Human Rights at the end of Chapter 9.

Newly arrived resident’s waiting period

Schedule 10 to the « Bill » will remove the exemption from the 104 week newly arrived resident’s waiting period for new migrants who are family members of Australian citizens or long-term permanent residents.

These exemptions are currently contained in section 3 of the Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997. This change will align the social security waiting period for working age payments for all newly arrived migrants to Australia, except for refugees, former refugees and their family members.

This Schedule will also move the remaining relevant exemptions found in section 3 of the Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997 into the Social Security Act 1991 and the Farm Household Support Act 2014 to remove the need to look at multiple Acts to work out whether a newly arrived resident’s waiting period applies.

Finally, this Schedule will also remove the savings provisions that allow a person to serve the newly arrived resident’s waiting period that applied when the person first entered Australia as a resident. This change means that from the commencement of Schedule 10 of the « Bill » , any person who applies for a social security payment, a concession card or farm household allowance and is subject to a newly arrived resident’s waiting period will have to serve the current waiting period. In most cases this requires the person to be an Australian resident and in Australia for 104 weeks. The removal of the savings provisions is expected to affect very few people.

Human rights implications : This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the end of Chapter 10.

Student start-up scholarships

Schedule 11 to this « Bill » repeals the student start-up scholarship payment, from 1 July 2017, or the first 1 January or 1 July after Royal Assent after this date. The earliest this Schedule can commence is 1 July 2017

Human rights implications : This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the end of Chapter 11.

Interest charge

Schedule 12 to the « Bill » introduces the legislative amendments required for the 2015-16 Mid-Year Economic and Fiscal Outlook measure, Applying a general interest charge to the debts of ex-recipients of Social Security and Family Assistance Payments .

The Schedule will provide for the application of a new interest charge to outstanding debts owed by former recipients of social welfare payments who have failed to enter into, or have not complied with, an acceptable repayment arrangement.

The interest charge will apply to social security, family assistance (including child care), paid parental leave and student assistance debts.

The rate of the proposed interest charge (approximately nine per cent) will be based on the 90-day Bank Accepted « Bill » rate (approximately two per cent), plus an additional seven per cent, as is already applied by the Australian Taxation Office under the Taxation Administration Act 1953 .

Date of effect : The measure is intended to be implemented from 1 January 2017.

Human rights implications : This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the end of Chapter 12.

Debt recovery

Schedule 13 to the « Bill » introduces the legislative amendments required for the 2015-16 Mid-Year Economic and Fiscal Outlook measure, Enhanced Welfare payment Integrity - expand debt recovery .

The Schedule will protect the integrity of outlays through welfare payments, and encourage welfare debtors to repay their debts, by using departure prohibition orders (similar to the arrangements applying in the child support legislation) to prevent targeted debtors from leaving the country. Departure prohibition orders will be used for debtors who persistently fail to enter into acceptable repayment arrangements.

The Schedule will also remove the six-year limitation on recovery of welfare debts. This will align social welfare debt recovery with the arrangements applied by other government agencies involved in the recovery of Commonwealth debts, where there is no such limitation.

Date of effect : The amendments made by this Schedule commence on the later of 1 January 2017 and the day after Royal Assent.

Human rights implications : This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the end of Chapter 13.

Parental leave payments

Schedule 14 to the « Bill » introduces the 2015-16 Mid-Year Economic and Fiscal Outlook measure, Commonwealth Parental Leave Payments consistent treatment for income support assessment.

This measure will amend the social security and veterans’ entitlements legislation to ensure Commonwealth parental leave payments and dad and partner pay payments under the Paid Parental Leave Act 2010 are included in the income test for Commonwealth income support payments.

Date of effect : The amendments made by this Schedule commence on the first 1 January, 1 April, 1 July or 1 October that occurs after the day the Act receives Royal Assent.

Human rights implications : This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the end of Chapter 14.

Fringe Benefits

Schedule 15 to this « Bill » changes the way in which fringe benefits are treated under the income tests for family assistance and youth income support payments and for other related purposes. The changes are also relevant for a number of income tax provisions. The meaning of ‘adjusted fringe benefits total’ is modified so that the gross rather than adjusted net value of reportable fringe benefits is used, except in relation to fringe benefits received by individuals working for public benevolent institutions, health promotion charities and some hospitals and public ambulance services.

Human rights implications : This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the end of Chapter 15.

Carer allowance

Schedule 16 aligns carer allowance and carer payment start day provisions, by removing provisions that apply to backdate a person’s start day in relation to payment of carer allowance in certain circumstances. The general start day rules under Part 2 of Schedule 2 to the Social Security Administration Act will apply to determine the date of effect of a decision to grant carer allowance.

Date of effect : The measure will commence on the later of 1 January 2017 and the day after this Act receives the Royal Assent.

Human rights implications : This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the end of Chapter 16.

Indexation of family tax benefit and parental leave thresholds

Schedule 17 makes amendments to the family assistance indexation provisions to maintain the higher income free area for family tax benefit (FTB) Part A and the primary earner income limit for FTB Part B for a further three years. Under the current law, indexation of these amounts is paused until and including 1 July 2016. These amendments ensure that indexation does not occur on 1 July of 2017, 2018 and 2019.

Similarly, amendments are made to ensure that the paid parental leave income limit is not indexed for a further three years, until 1 July 2020.

Date of effect : These measures commence on Royal Assent.

Human rights implications : This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the end of Chapter 8.

Pension means testing for aged care residents

Schedule 18 introduces the 2015-16 Mid-Year Economic and Fiscal Outlook measure, Age Pension — aligning the pension means testing arrangements with residential aged care arrangements.

This Schedule will amend the social security and veterans’ entitlements legislation to remove the pension income and assets test exemptions that are currently available to pensioners in aged care who rent out their former home and pay their aged care accommodation costs by periodic payments.

The removal of the income test exemption will ensure that net rental income earned on the former principal residence of new entrants into residential aged care is treated the same way under the pension income test as it is under the aged care means test, regardless of how the resident chooses to pay their aged care accommodation costs.

The current indefinite assets test exemption of the former principal residence from the pension assets test, where the property is rented and aged care accommodation costs are paid on a periodic basis, will also be removed. A person who enters a residential or flexible aged care service after the commencement of this Schedule can still benefit from provisions in the Social Security Act and Veterans’ Entitlements Act that treat a person’s former residence as their principal home for a period of up to two years from the day on which the person enters care (unless the home is occupied by their partner, in which case it will continue to be exempt).

The changes will only apply to pensioners who enter aged care on or after the commencement of this schedule. Existing aged care residents, and those who enter aged care before the commencement date, will be protected and will not be affected by the changes

Date of effect : The amendments made by this Schedule commence the first 1 January or 1 July to occur after the day this Act receives the Royal Assent.

Human rights implications : This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the end of Chapter 18.

Employment income

Schedule 19 removes the exemption from the income test for family tax benefit Part A recipients and the exemption from the parental income test for dependent young people receiving youth allowance and ABSTUDY living allowance if the parent is receiving either a social security pension or social security benefit, and the fortnightly rate of pension or benefit is reduced to nil because of employment income (either wholly or partly).   This measure improves fairness and targeting of payments and facilitates equity between families with similar incomes.

Date of effect : The measure will commence on 1 July 2018.

Human rights implications : This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the end of Chapter 19.

Psychiatric confinement

Schedule 20 provides that a person who is undergoing psychiatric confinement because they have been charged with a serious offence will be taken to be in psychiatric confinement for the purpose of the social security law, irrespective of whether the person is undertaking a course of rehabilitation. One of the effects of this is that relevant social security payments will not be payable to the person while the person is undergoing that psychiatric confinement.

Date of effect : The measure will commence on 1 July 2017.

Human rights implications : This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the end of Chapter 20.

Closing carbon tax compensation to new welfare recipients

Parts 1 to 6 of Schedule 21 implement the 2016-17 Budget measure National Disability Insurance Scheme Savings Fund - abolish the Energy Supplement for all new recipients by amending the Family Assistance Act, Social Security Act, Social Security Administration Act, Farm Household Support Act, Veterans’ Entitlements Act and Military Rehabilitation and Compensation Act.

The amendments made by Parts 1 to 6 of this Schedule to these Acts prevent new recipients of welfare payments or concession cards from being paid the energy supplement from 20 March 2017. The amendments made in this Schedule also ensure that welfare recipients who are paid the energy supplement with their payment or concession card prior to 20 September 2016 who satisfy the requirements set out in this Schedule will continue to receive the energy supplement with their payment or concession card from 20 March 2017 onwards.

For payment recipients and concession card holders who first receive the energy supplement on or after 20 September 2016, the energy supplement can only be paid to them until 19 March 2017 and this is subject to the person satisfying the current legislative criteria for receiving the supplement. From 20 March 2017 onwards they can no longer receive the energy supplement.

Part 7 of Schedule 21 implements the 2016-17 Budget measure National Disability Insurance Scheme Savings Fund - Single Income Family Supplement cessation for new customers by amending the Family Assistance Act to ensure that from 1 July 2017, the single income family supplement will not be paid to new recipients. Existing recipients may continue to receive the supplement if they remain eligible in accordance with new section 57GDA contained in Part 7 of this Schedule.

The amendments made by Parts 1 to 6 of this Schedule commence on 20 March 2017.

Date of effect : The amendments made by Part 7 of this Schedule commence on 1 July 2017.

Human rights implications : This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the end of Chapter 21.

Rates of R&D tax offset

Schedule 22 to this « Bill » amends the Income Tax Assessment Act 1997 (ITAA 1997) to reduce the rates of the tax offset available under the research and development tax incentive for the first $100 million of eligible expenditure by 1.5 percentage points. The higher (refundable) rate of the tax offset will be reduced from 45 per cent to 43.5 per cent and the lower (non-refundable) rates of the tax offset will be reduced from 40 per cent to 38.5 per cent.

Date of effect : This measure applies to income years starting on or after 1 July 2016.

Proposal announced : This measure was announced in the 2014-15 Budget on 13 May 2014.

The estimated financial impact differs from previously published estimates. It reflects the revised application date of 1 July 2016 and updates due to the passage of time since the initial announcement in the 2014-15 Budget.

Human rights implications : This Schedule does not raise any human rights issues. See Statement of Compatibility with Human Rights at the end of Chapter 22.

Compliance cost impact : This measure does not affect compliance costs.

Single touch payroll reporting

Schedule 23 to this « Bill » creates a new reporting framework, known as Single Touch Payroll (STP), for substantial employers to automatically provide payroll and superannuation information to the Commissioner of Taxation (Commissioner) at the time it is created. Entities that report under STP will not have to comply with a number of existing reporting obligations under the taxation laws.

This Schedule also contains a number of related amendments to streamline an employer’s payroll and superannuation choice processes by allowing the Australian Taxation Office (ATO) to pre-fill and validate employee information.

Date of effect : These amendments commence from the first quarter beginning on or after the day this « Bill » receives Royal Assent.

In general, STP reporting will commence on 1 July 2018 for substantial employers and the related amendments will apply more broadly from 1 January 2017. In some cases, the Commissioner may defer these start dates by legislative instrument.

Proposal announced : On 21 December 2015, the then Minister for Small Business and Assistant Treasurer announced the Government’s intention to implement STP reporting and the introduction of streamlined processes for individuals commencing employment.

Human rights implications : This Schedule raises human rights issues. See Statement of Compatibility with Human Rights at the end of Chapter 23.

Compliance cost impact : This measure is expected to result in a reduction in average annual regulatory compliance costs of $55 million.

Summary of regulation impact statement

Regulation impact on business

Impact : The regulatory impact on businesses has been assessed as low.

Main points :

•        STP will create a reporting regime that aligns with business processes (such as payroll cycles) for employers to report Pay as you go (PAYG) withholding and superannuation contributions to the ATO through Standard Business Reporting (SBR) enabled software.

•        Entities with less than 20 employees will be unaffected by this measure, with their reporting obligations and compliance costs remaining the same, unless they choose to voluntarily commence STP reporting.

•        Entities with 20 or more employees may have a transitional cost in complying with STP reporting through the purchase of SBR-enabled software but otherwise are expected to have future compliance cost savings from streamlined reporting processes.

Single appeal path under the Military Rehabilitation and Compensation Act

Schedule 24 to this « Bill » will give effect to a Veterans’ Affairs 2015 Budget measure that will create a single appeal path for the review of original determinations made under the Military Rehabilitation and Compensation Act 2004 ( Military Rehabilitation and Compensation Act) .

Human rights implications : See Statement of Compatibility with Human Rights at the end of Chapter 24.

 

 



Chapter 1          

Minimum repayment income for HELP debts

Summary

Under HESA, a person with a HELP debt is only required to start repaying that debt when their repayment income exceeds a certain amount, called the ‘minimum repayment income’. (‘Repayment income’ is defined in section 154 5 of HESA). As a person’s income increases, the rate at which they repay their HELP debt also increases.

For the 2016-17 income year, the minimum repayment income is $54,868, and a person whose income exceeds that amount but is less than $61,120 is liable to repay an amount of their HELP debt equal to 4 per cent of their income.

From the start of the 2018-19 income year, the amendments to HESA made by Schedule 1 will establish a new minimum repayment income ($51,956), as well as setting a repayment rate of 2 per cent for people whose incomes exceed that amount but are less than $57,730.

These amendments will have flow-through effects for other loans schemes, including the Trade Support, Student Start-Up, and Student Financial Supplement Scheme loan schemes.

Detailed explanation

Higher Education Support Act 2003

Item 1

Section 154-10 of HESA provides for the minimum repayment income for an income year, that is, the amount that a person’s repayment income must be above before they will be obliged to start repaying their accumulated HELP debts.

Paragraph 154-10(a) currently provides that the minimum repayment income for the 2005-06 income year was $36,184. This amount has since been indexed every year, and for the 2016-17 income year is $54,868. Item 1 of Schedule 1 will repeal and substitute paragraph 154-10(a) and set a new minimum repayment income for the 2018-19 income year of $51,956.

This amount is indexed under section 154-25 of HESA for later income years.

Item 2

Section 154-20 of HESA contains a table which lists repayment income thresholds and the applicable percentage rates for the compulsory repayment of HELP debts.

Item 2 will repeal and substitute the table in section 154-20. For the 2018-19 income year a person would not make a repayment if their income was $51,956 or less. The applicable repayment incomes and repayment percentages would be as follows (for later income years, the income amounts would be indexed under section 154-25):

•        from $51,957 but less than $57,730 - 2%

•        from $57,730 but less than $64,307 - 4%

•        from $64,307 but less than $70,882 - 4.5%

•        from $70,882 but less than $74,608 - 5%

•        from $74,608 but less than $80,198 - 5.5%

•        from $80,198 but less than $86,856 - 6%

•        from $86,856 but less than $91,426 - 6.5%

•        from $91,426 but less than $100,614 - 7%

•        from $100,614 but less than $107,214 - 7.5 %

•        from $107,214 and above - 8%.

Items 3, 4 and 5

Item 3 repeals and substitutes subsection 154-25(1) of HESA, simply to update the income year referred to in that subsection (changed from ‘2006-07’ to ‘2019-20’ and from ‘2005-06’ to ‘2018-19’) and the number of items in the table in 154-20 (changed from ‘1 to 8’ to ‘1 to 9’), as a consequence of the amendments made by items 1 and 2.

Items 4 and 5 make similar textual changes to section 154-30 that are also consequent on the amendments made by items 1 and 2.

Item 6

Item 6 provides that the amendments to HESA made by Schedule 1 apply in relation to income years commencing on and after the day Schedule 2 commences, that is, to the 2018-19 income year and later income years.

 



Summary

Many amounts set out in HESA are indexed on 1 January each year under Part 5-6 of HESA (these are set out in the table in section 198-5).

Currently, the indexation factor for these amounts is the Higher Education Grants Index (HEGI). In the 2008-09 Budget it was announced that the indexation rate for all grants under HESA would be set by reference to 75 per cent of 90 per cent of the Professional, Scientific and Technical Services Labour Price Index and 25 per cent of the Consumer Price Index (CPI), which is known as the HEGI.

The change to HEGI was staged over a period of four years, with all HESA grants being indexed by this rate in the 2012-13 Budget.

From 1 January 2018, Schedule 2 of the « Bill » will amend HESA to replace HEGI with the CPI.

The CPI will be used each year to index all grants and regulated student contribution amounts for current students under HESA.

Detailed explanation

Higher Education Support Act 2003

Item 1

Subsection 198-10(1) provides that an amount is indexed on 1 January 2012 and on each subsequent 1 January by multiplying it by the indexation factor for the year in question.

This item repeals and substitutes subsection 198-10(1) so that it provides that an amount is indexed on 1 January each year by multiplying it by the indexation factor for the year.

Item 2

Section 198-15 contains a formula which explains how the indexation factor for a year is calculated.

This item repeals and substitutes the formula in section 198-15. The new formula is the index number for the December reference quarter divided by the index number for the December base quarter.

The December base quarter means the quarter ending on the 31st of December two years and a day before the relevant 1 January.

The December reference quarter means the quarter ending on the 31st of December that is a year and a day before the relevant 1 January.

Item 3

Section 198-20 provides the meaning of the index number for the purpose of working out the indexation factor under section 198-15.

Item 3 repeals and substitutes section 198-20 to provide for a new meaning for the index number.

New subsection 198-20(1) provides that the index number for a quarter is the All Groups CPI as published by the Australian Statistician.

New subsection 198-20(2) provides that, subject to subsection 198-20(3), if before or after the commencement of new subsection 198-20(2) the Australian Statistician subsequently publishes a substitute index number for a quarter, that subsequent index number is to be disregarded for the purposes of section 198-20.

New subsection 198-20(3) provides that, if before or after the commencement of new subsection 198-20(3), the Australian Statistician changes the index reference period for the CPI prior to the commencement of subsection 198 20(3), then in order to apply section 198-20 after the change happens, regard is only to be given to the published index numbers for the new reference period.

Item 4

This item repeals the definition of indexation period in the Dictionary at Schedule 1.

 



Chapter 3          

Removal of HECS-HELP benefit

Summary

The amendments to HESA made by Schedule 3 will discontinue the HECS-HELP benefit. The HECS-HELP benefit operates as a deduction from a person’s HELP debt, and is available to graduates in certain fields of study who are employed in certain occupations.

The HECS-HELP benefit was introduced as part of the 2008-09 Budget. It was designed to reduce HECS-HELP repayments by around $1,800 a year for early childhood education graduates and $1,700 a year for other occupations. Since 2008 the program has been expanded to other areas of identified need, including mathematics, science related occupations, teaching and nursing.

The HECS-HELP benefit has had lower than expected take up and has been ineffective in achieving its policy aims of influencing course of study choice selection and increasing demand for particular occupations.

Schedule 3 will commence from 1 July 2017.

Detailed explanation

Higher Education Support Act 2003

Items 1 to 15

Item 12 repeals Division 157 of HESA, which provides for the HECS-HELP benefit.

Items 1 to 11 and 13 to 15 remove redundant references to the HECS-HELP benefit from HESA.

Income Tax Assessment Act 1997

Items 16, 17 and 18

As a consequence of the cessation of the HECS-HELP benefit, items 16, 17 and 18 amend provisions of the Income Tax Assessment Act 1997 (ITAA 1997) that refer to the HECS-HELP benefit.

Section 11-15 of the ITAA 1997 identifies those types of ordinary or statutory income that are exempt income for the purposes of the Income Tax Assessment Act. Item 16 removes the HECS-HELP benefit from section 11-15.

Section 51-10 of the ITAA 1997 contains a table which identifies recipients of certain types of education and training amounts who are exempt from paying income tax with respect to those amounts. Item 17 removes item 2.9 from that table - recipients of HECS-HELP benefits.

Item 18 removes the definition of HECS-HELP benefit from subsection 995 1(1) of the ITAA 1997.

Item 19

Item 19 is a savings provision, that has the effect of ensuring that the cessation of HECS-HELP benefit only operates prospectively from the commencement of Schedule 4 (i.e. 1 July 2017). A person can still be eligible, and obtain the benefit of, HECS-HELP benefit in relation to income years before 2017-18, and all the laws and processes that operated in relation to HECS-HELP benefit continue to apply to HECS-HELP benefit for those earlier income years.

Thus, for example, subitem 19(3) makes it clear that

•        a person may, after commencement of Schedule 3, make an application in respect of an earlier income year in accordance with Subdivision 157-A of Division 157 of HESA as in force immediately before commencement; and

•        the Commissioner must make a determination on any application for an earlier year in accordance with Subdivision 157-C of Division 157 of HESA as in force immediately before commencement; and

•        section 140-5 of HESA, as in force immediately before commencement, continues to apply after this time for the purpose of working out a person’s former accumulated HELP debt in respect of a determination of HECS-HELP benefit for an earlier income year; and

•        section 154-3 of HESA, as in force immediately before commencement, continues to apply after this time for the purpose of working out the amount a person in relation to whom a HECS-HELP benefit has been determined for an earlier income year has to pay under section 154-1 of HESA; and

•        a person may, after commencement, make an application for review of a decision referred to in item 4A of the table in section 206-1 of HESA (i.e. a determination of the Commissioner under section 157-20 of HESA) as that item was in force immediately before commencement; and

•        such a decision is able to be reviewed and given effect to in accordance with HESA as in force immediately before commencement; and

•        provisions of the taxation law (within the meaning of the ITAA 1997) have effect as necessary in order to give effect to item 19.

Subitem 19(4) provides that the HECS-HELP Benefit Guidelines in force immediately before commencement continue to apply for the purpose of HECS-HELP benefit under HESA for earlier income years. The continued HECS-HELP Benefit Guidelines may be amended or repealed as if they were Guidelines made under section 238-10 of HESA.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Minimum repayment income for HELP debts

Indexation of higher education support amounts

Removal of HECS HELP benefit

Overview of the measures

The Higher Education Support Act 2003 (HESA) is the main piece of legislation providing funding for higher education in Australia. This « Bill » makes amendments to HESA that will improve the sustainability of higher education funding, being:

•        the introduction of a lower income threshold at which recipients of loans under HESA must start repaying those loans (Schedule 1);

•        a change to the index for amounts that are indexed annually under HESA, from the Higher Education Grants Index (HEGI) to the Consumer Price Index (CPI) (Schedule 2); and

•        cessation of HECS-HELP benefit (Schedule 3).

Summary of analysis

The measures contained within this package are limited and justifiable. While there is minor potential for some changes to lead to increased costs for some students under the Higher Education Loan Program (HELP), these measures are necessary to support the provision of high quality higher education and to continue to provide equitable access for students.

Analysis of human rights implications

International Covenant on Economic, Social and Cultural Rights (ICESCR)

Article 11: right to an adequate standard of living

These measures engage with Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which recognises “the right of everyone to an adequate standard of living…including adequate food, clothing and housing, and to the continuous improvement of living conditions”.

There are elements within the legislation that may be perceived as relevant to article 11, particularly as they may result in increased costs for HELP recipients once they begin earning a sufficient wage. None of these changes will necessitate increased costs for students while they study (unless they are earning income above the threshold while studying), as they will continue to be able to defer all tuition fees though the HELP scheme.

Schedule 1 of the « Bill » establishes a new minimum repayment threshold for HELP loans. The proposed minimum repayment threshold is still substantially above the national minimum wage and will be adjusted annually to account for growth in average earnings. Additionally, above this new minimum repayment threshold students will pay only two per cent of their annual taxable income. As such the measure is reasonable and proportionate to meet the policy goal of ensuring the long term viability of the HELP scheme.

Schedule 3 of the « Bill » removes the HECS-HELP benefit. The HECS-HELP benefit was designed to provide an extra financial incentive for graduates of particular courses to take up related occupations or work in specified locations by reducing their compulsory HELP repayments. Its removal may result in increased costs for these graduates. However, in order to receive the HECS-HELP benefit, graduates must be working and earning above the minimum repayment threshold which is substantially above the minimum liveable wage.

Furthermore, continued access to education, as ensured by a sustainable and efficient HELP scheme, will provide a basis for increased earnings and therefore assure a higher standard of living for many graduates.

Article 12: Right to education

These measures engage with Article 13(2)(c) of the ICESCR which states that “higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education”.

The sustainability of HELP is crucial to ensure continued access to higher education. HELP ensures that students do not face upfront costs for their higher education and are able to further their study on the basis of capacity to learn rather than capacity to pay.

Schedule 1 will change the minimum repayment threshold for HELP debts to 90 per cent of the current minimum income threshold. In the 2016-17 income year, taxpayers are not required to start paying back their HELP loans until their annual incomes reach $54,869. In the 2018-19 income year, the new threshold at which people will start repaying debts will be $51,956.

From 1 July 2018, a lower repayment rate of two per cent will apply for those with incomes above the new threshold up to the current minimum threshold. The lower two per cent repayment rate for those above the new threshold will ensure that those HELP debtors who earn above the new minimum threshold but less than the existing minimum threshold will not experience a large reduction in their disposable income, while supporting the sustainability of the HELP scheme.

Schedule 3 discontinues the HECS-HELP benefit. The abolition of the benefit will cease funding an ineffective program without adversely affecting higher education access. The benefit was designed to provide an extra incentive for graduates of particular courses, such as education, nursing, mathematics or science, to take up related occupations or work in specified locations by reducing their compulsory HELP repayments. However, uptake of this program has been lower than expected. Removal of this measure will have no impact on access to higher education for students as it is only available once their higher education course has been successfully completed. Additionally, this program provides a financial benefit to work in specific areas or occupations rather than a reduction in costs for these students.

Currently, grants and student contribution amounts under HESA are indexed each year under the Higher Education Grants Index (HEGI). Schedule 2 replaces the current HEGI indexation with indexation by the CPI. This is part of a Government-wide initiative to streamline and simplify indexation rates for Government programs. Moving to CPI reduces the rate of spending growth in order to ensure the long-term sustainability of higher education programs such as the Commonwealth Grant Scheme, research grants and Australian Postgraduate Awards.

Conclusion

These Schedules are compatible with human rights.

 



Chapter 4          

Job commitment bonus

Summary

Currently, a person aged 18 to 30 who has been receiving newstart allowance or, in some cases, youth allowance for at least 12 months can qualify for a ‘job commitment bonus’ if they subsequently:

•        complete a period of 12 months of continuous gainful work and do not receive an income support payment during that period (they qualify for the ‘first bonus’ at this stage), and

•        complete a further period of 12 months of continuous gainful work and do not receive an income support payment during that further period (they qualify for the ‘second bonus’ at this stage).

The first bonus is $2,500 and the second bonus is $4,000.

The job commitment bonus commenced in 2014 following the enactment of the Social Security Legislation Amendment (Increased Employment Participation) Act 2014 . The bonus was intended to encourage young long-term unemployed job seekers to find and keep a job. However, analysis of program awareness and impact identified that the job commitment bonus has not had a significant impact on young job seekers either obtaining or remaining in employment.

The job commitment bonus has had low take-up since its introduction, with less than 30 per cent of expected claims for the 2015-16 financial year being achieved. Further, the job commitment bonus did not increase job seekers’ efforts to find a job and generally was not an incentive for potentially eligible individuals to stay in a job. Survey results show that, of those people who were aware of the bonus, the majority said that the bonus did not increase their job application effort, the number of jobs they applied for, or their motivation to find a job. Individuals who were potentially eligible for the bonus generally stated that their main motivation was to move from welfare into work. Once they got work, they expressed a desire to stay in work and off income support, regardless of the bonus.

Part 1 of this Schedule would repeal provisions of the Social Security Act 1991 (the SS Act) and the Social Security (Administration) Act 1999 (the Administration Act) that refer to the job commitment bonus. Part 2 would make consequential amendments to the Farm Household Support Act 2014 and the Income Tax Assessment Act 1997 (ITAA 1997). Part 3 contains transitional provisions that would ensure that people who have qualified for a job commitment bonus before the commencement date would be able to claim the bonus within a particular timeframe, and would also ensure that the bonus will continue to be exempt from income tax (regardless of whether a person receives it before or after the commencement date).

Detailed explanation

Part 1 - Main Amendments

Social Security Act 1991

Item 1 - subsection 23(1) (definition of job commitment bonus)

This item would repeal the definition of job commitment bonus from subsection 23(1). This definition will no longer be required.

Item 2 - Part 2.16A

This item would repeal Part 2.16A.

Part 2.16A currently provides for the job commitment bonus. It establishes, amongst other things, when a person is qualified for a job commitment bonus under subsection 861(1) (the ‘first bonus’) and under subsection 861(3) (the ‘second bonus’). It also sets out the amount of the first and second bonus. These provisions need to be repealed to give effect to the cessation of the job commitment bonus.

Social Security (Administration Act) 1999

Item 3 - subsection 13(6)

This item would repeal subsection 13(6).

Section 13 ‘deems’ certain types of contact with the Department by or on behalf of a person to constitute a claim for a social security payment. Subsection 13(6) currently makes clear that a person cannot be deemed to make a claim for the job commitment bonus under section 13. This provision will no longer be required.

Item 4 - Subdivision FD of Division 1 of Part 3

This item would repeal Subdivision FD of Division 1 of Part 3.

Subdivision FD currently contains time limits for making claims for job commitment bonus. The time limit is generally 90 days after a person is qualified for the bonus (unless special circumstances exist, or the person is claiming the first bonus and the second bonus together). This Subdivision will no longer be required.

Item 5 - Subsection 37(6A)

This item would repeal subsection 37(6A).

Subsection 37(6A) currently provides that the Secretary must determine that a claim for job commitment bonus is to be granted if the Secretary is satisfied that the claimant is qualified for the bonus. This provision will no longer be required.

Item 6 - Paragraph 47(1)(hsa)

This item would repeal paragraph 47(1)(hsa).

Section 47(1) defines the term ‘lump sum benefit’. Paragraph 47(1)(hsa) specifically lists the job commitment bonus as a lump sum benefit. This provision will no longer be required.

Item 7 - Section 47BA

This item would repeal section 47BA.

Section 47BA currently provides that if a person is qualified for a job commitment bonus, the bonus must be paid as a single lump sum on the earliest day the Secretary considers it reasonably practicable for the bonus to paid, in such manner as the Secretary considers appropriate. This provision will no longer be required.

Part 2 -Consequential Amendments

Farm Household Support Act 2014

Item 8 - section 95 (table item 1A)

This item would repeal table item 1A from the table contained in section 95.

The table contained in section 95 modifies particular provisions of the SS Act for the purposes of the Farm Household Support Act 2014 . Table item 1A refers to paragraph 861(1)(a) of the SS Act (which relates to when a person is qualified for job commitment bonus). This table item will no longer be required.

Income Tax Assessment Act 1997

Item 9 - section 11-15 (table item headed “social security or like payments”)

This item would repeal the reference to the job commitment bonus in section 11-15.

Section 11-15 contains a list setting out the types of ordinary or statutory income that are exempt from income tax. This list will no longer need to refer to the job commitment bonus. 

Items 10 and 11 - Paragraph 52-10(1)(wb) and subsection 52-10(1EB)

These items would repeal paragraph 52-10(1)(wb) and subsection 52-10(1EB).

Section 52-10 deals with the income tax treatment of social security payments. Subsection 52-10(1EB) specifies that the job commitment bonus is exempt from income tax. This provision is no longer required. The amendment to paragraph 52-10(1)(wb) is consequential to the repeal of subsection 52-10(1EB).

Item 12 - Section 52-40 (table item 14)

This item repeals item 14 of the table in section 52-40.

Section 52-40 contains a table listing provisions of the SS Act under which social security payments are made that are wholly or partly exempt from income tax under Subdivision 52-A of the ITAA 1997. Section 52-40 will no longer need to refer to provisions under which the job commitment bonus is paid.

Part 3 - Savings and transitional provisions

Item 13 - Saving and transitional provisions

This item contains saving and transitional provisions relating to the job commitment bonus.

Subitem 13(1)

This subitem would make clear that a person cannot become qualified for a job commitment bonus on or after the commencement date.

Subitem 13(2)

This subitem would ensure that Chapter 5 of the SS Act, as in force immediately before the commencement date, continued to apply in relation to a payment of a job commitment bonus, regardless of whether the payment was made before, on or after commencement.

Chapter 5 of the SS Act relates to overpayments and debt recovery. This subitem would enable the Commonwealth to recover any overpayments or debts arising in relation to a payment of a job commitment bonus, regardless of whether it was paid before, on or after commencement.

Subitem 13(3)

This subitem would enable a person to claim a job commitment bonus on or after the commencement date if they qualified for the bonus before the commencement date and were permitted to make a claim under section 27D of the Administration Act, as in force immediately before the commencement date.

Consistently with section 27D, a person would ordinarily have to claim a bonus within 90 days of becoming qualified for it (unless special circumstances exist, or the person is claiming the first and the second bonus together). A person who was qualified for both the first and second bonuses before the commencement date could claim both bonuses at the same time (subsection 27D(3)). They would need to claim both bonuses within the time limit specified in subsection 27D(1) (or, if special circumstances exist, the further time limit specified in subsection 27D(2)), as in force immediately before the commencement date.

Subitem 13(4)

This subitem would ensure that Part 3 of the Administration Act, as in force immediately before the commencement date, continued to apply in relation to the job commitment bonus.

Part 3 of Administration Act relevantly provides for deciding claims for, determinations in relation to, and making payments of, job commitment bonus. Part 3 would continue to apply to deciding claims for the job commitment bonus and determinations relating to the job commitment bonus, regardless of whether the relevant claim or determination was made before, on or after commencement. Part 3 would also continue to apply to making payments of the job commitment bonus on or after commencement.

Subitem 13(5)

This subitem would ensure that Parts 4 and 4A of the Administration Act, as in force immediately before the commencement date, continued to apply to decisions made under the social security law in relation to the job commitment bonus.

Parts 4 and 4A of the Administration Act provide for the internal and external review of decisions made under the social security law. This subitem would ensure that these review processes would continue to be available in relation to decisions about the job commitment bonus, regardless of whether those decisions were made before, on or after commencement.

Subitem 13(6)

This subitem would ensure that subsection 52-10(1EB) of the ITAA 1997, as in force immediately before the commencement date, continued to apply in relation to a payment of the job commitment bonus, regardless of whether the payment was made before, on or after commencement.

This subitem would ensure that payments of the job commitment bonus remain exempt from income tax, regardless of whether they are made before, on or after commencement.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Job commitment bonus

This Schedule is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview of the Schedule

The Schedule would amend the Social Security Act 1991 and the Social Security (Administration) Act 1999 to give effect to the cessation of the job commitment bonus measure, as announced in the 2016-17 Budget. It would make consequential amendments to the Income Tax Assessment Act 1997 and the Farm Household Support Act 2014 relating to the cessation of the job commitment bonus.

The Schedule also includes transitional provisions that would ensure that people who have qualified for a job commitment bonus before the commencement date would be able to claim the bonus (tax-free) within a particular timeframe.

Human rights engaged by the Schedule

The Schedule engages the following rights:

•        •         the right to social security in article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

•        •         the right to an adequate standard of living in article 11(1) of the ICESCR

•        •         the right to work in article 6 of the ICESCR, and

•        •         the right to equality and non-discrimination in article 2(2) of the ICESCR and article 26 of the International Covenant on Civil and Political Rights (ICCPR).

Human rights implications of the Schedule

Currently, a person aged 18 to 30 who has been receiving particular income support payments for at least 12 months can qualify for a tax-free bonus of $2,500 if they complete 12 months of continuous gainful work and do not receive an income support payment during that period. In addition, such persons can qualify for a second tax-free bonus of $4,000 if they complete a further period of 12 months of gainful work and do not receive an income support payment during that further period.

The job commitment bonus was intended to encourage young long-term unemployed job seekers to find and keep a job. However, analysis of program awareness and impact identified that the job commitment bonus has not had a significant impact on young job seekers either obtaining or remaining in employment. In particular, the bonus has had low take-up since its introduction (with less than 30 per cent of expected claims for the 2015-16 financial year being achieved). Further, the bonus did not increase job seekers’ efforts to find a job and generally was not an incentive for potentially eligible individuals to stay in a job. Survey results show that, of those people who were aware of the bonus, the majority said that the bonus did not increase their job application effort, the number of jobs they applied for, or their motivation to find a job. Individuals who were potentially eligible for the bonus generally stated that their main motivation was to move from welfare into work. Once they got work, they expressed a desire to stay in work and off income support, regardless of the bonus.

Right to social security and right to an adequate standard of living

Article 9 of the ICESCR recognises the right of everyone to social security. The right to social security requires States to establish a social security system and, to the maximum of its available resources [2] , ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education [3] .  Further, Article 11(1) of the ICESCR recognises the right of everyone to an adequate standard of living including adequate food, water and housing, and to the continuous improvement of living conditions.

Cessation of the job commitment bonus could be seen as adversely affecting an individual’s rights to social security and an adequate standard of living. However, it is significant that an individual only qualifies to receive a job commitment bonus if they engage in continuous gainful employment for at least 12 months and do not receive an income support payment during that period. The bonus was not itself intended to constitute income support for recipients to meet their living expenses. The people it is paid to already receive « remuneration » in return for gainful work and, therefore, typically enjoy a higher standard of living than income support recipients. Further, cessation of the job commitment bonus will not affect individuals’ ability to make a claim for income support payments under the social security system if they cease to be engaged in gainful employment. In addition, people who have qualified for a job commitment bonus before the commencement date would not be disadvantaged because they would be able to claim the bonus (tax-free) within a particular timeframe.

Consistently with this, to the extent that the cessation of the job commitment bonus has any impact on individuals’ rights to social security and an adequate standard of living, that impact would not be unreasonable. The cessation of the bonus is a necessary, reasonable and proportionate response by the Commonwealth to a measure that has not achieved its intended policy objectives.

Right to work

Article 6(1) of the ICESCR recognises the right to work, which includes the right to the opportunity to gain a living by work which the job seeker freely chooses or accepts. Article 6(2) specifically refers to States’ obligations to realise this right by implementing ‘technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment’.

The job commitment bonus was intended to promote the right to work by providing an incentive to young long-term unemployed job seekers to find and keep a job. However, as discussed above, the bonus has not had a significant impact on young job seekers either obtaining or remaining in employment. The cessation of the bonus is a necessary, reasonable and proportionate response by the Commonwealth to a measure that has not achieved its intended policy objectives.

Right to equality and non-discrimination

Article 2(2) of the ICESCR and article 26 of the ICCPR recognise the right to equality and non-discrimination on a range of grounds including of race, sex, colour, language, national origin or ‘other status’. Age is considered to fall within ‘other status’ for the purpose of these articles. However, a measure can differentiate between particular groups of people on the basis of age where this treatment is aimed at achieving a legitimate objective, is based on reasonable and objective criteria and is proportionate to the objective to be achieved.

The job commitment bonus differentiates between people on the basis of age because it is only available to individuals aged between 18 and 30. Similarly, cessation of the job commitment bonus will only affect people who currently fall within, or who may in future fall within, this age group. However, for the reasons discussed above, this is a necessary, reasonable and proportionate response by the Commonwealth to a measure that has not achieved its intended policy objectives.

Conclusion

The Schedule is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.



Outline of chapter

Sub-section 64(1) of the ARENA Act specifies the amounts made available to ARENA for each of the years 2013-14 to 2021-2022. ARENA accesses these amounts by making requests for payment to the Commonwealth under section 65. Payments are appropriated from the Consolidated Revenue Fund under section 66. Any unrequested amounts carry over to future financial years under sub-section 64(2).

Schedule 5 to the « Bill » amends the table in sub-section 64(1) of the ARENA Act so that amounts available to ARENA for the years from 2017-18 onwards match the funding available in the 2016-17 Budget. It does so by replacing each of the amounts specified in table items 5 to 9 of sub-section 64(1) of the ARENA Act with the amounts specified in the 2016-17 Budget.

The amendments made by Schedule 5 do not affect the amounts that were available to ARENA for any of the years 2013-14 to 2016-17.

Note that the 2016-17 Budget papers provide for an appropriation for ARENA in 2016-17 that differs from the amount set out for that year in the table in sub-section 64(1). This difference is explained by some unspent amounts carried over from previous years under sub-section 64(2) being reprofiled in the Budget to match ARENA’s updated profile of payment commitments. Therefore the figure in the 2016-17 Budget papers for the 2016-17 year does not represent any additional appropriation to ARENA.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Australian Renewable Energy Agency’s finances

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instrument listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview

This Schedule seeks to realise the savings incorporated in the 2014-15 Budget in relation to ARENA.

The ARENA Act sets out the legislative framework for the establishment of ARENA and its objectives, which are to improve the competitiveness of renewable energy and related technologies and to increase the supply of renewable energy. The ARENA Act also details ARENA’s governance arrangements and the funding available for ARENA, to provide financial assistance for renewable energy projects, research and development activities, and activities to capture and share knowledge.

This Schedule amends the table in sub-section 64(1) of the ARENA Act so that ARENA’s overall available appropriation is reduced by the amount specified in the Budget. It is a simple revenue-raising measure.

Human Rights Implications

This Schedule includes a revenue-raising measure that is minor in nature, and as such, does not engage any of the applicable human rights or freedoms.

Conclusion

This Schedule is compatible with human rights as it does not raise any human rights issues.

 



Background

As part of the 2014-15 Budget, the Government announced that it would pause income thresholds for the MLS and Rebate at the 2014-15 rates for three years from 2015-16.

As part of the 2016-17 Budget, the Government announced that it would continue to pause income thresholds for the MLS and Rebate at the 2014-15 rates for an additional three years from 2018-19.

The income thresholds for the MLS are set out in the Medicare Levy Act 1986 and the A New Tax System (Medicare Levy Surcharge - Fringe Benefits) Act 1999 . These Acts rely on the thresholds set out in the PHI Act. Subsequently no amendments to these Acts are required in order to pause the MLS income thresholds.

Continuation of the pause in income thresholds at 2014-15 levels could result in individuals with incomes below each threshold moving into a higher income tier as their incomes increase.  As a result:

•        individuals who do not have private health insurance and do not currently pay the MLS may become liable to pay the MLS, thus encouraging them to purchase private health insurance; and

•        an individual’s level of MLS may increase, thus encouraging the person to purchase private health insurance.

Amendments

Private Health Insurance Act 2007

Item 1 - Subsection 22-45(3A)

Section 22-45 of the Act provides for the annual indexation of the singles tier 1, tier 2 and tier 3 thresholds.  Indexation of the singles thresholds flows through to the corresponding private health insurance family thresholds (see section 22-40 of the Act). 

The level of indexation is currently determined in accordance with a statutory indexation factor set out in section 22-45. 

Item 1 of the Schedule amends subsection 22-45(3A) to provide that the amounts mentioned in section 22-35 (the private health insurance singles thresholds) are not to be indexed for the 2018-19, 2019-20 or 2020-21 financial years. 

Existing subsection 22-45(3B) of the Act provides that where an amount of threshold is not indexed for a financial year because of subsection 22-45(3A), the amount of the threshold for the year is the amount for the most recent financial year for which the amount was indexed, in this case the amounts for the 2014-15 year.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Indexation of private health insurance thresholds

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview of the Schedule

As part of the 2016-17 Budget, the Government announced that the income thresholds used in the calculation of the MLS and the Rebate would be paused at the 2014-15 levels for a further three years from 2018-19. 

Pausing the income tiers at the 2014-15 rates for a further three years will result in individuals with incomes marginally below each threshold moving into a higher threshold due to wages growth.   As a result, some individuals who do not currently have private health insurance may be liable to pay the MLS if they do not purchase private health insurance. 

Human rights implications

The right to health

The right to health - the right to the enjoyment of the highest attainable standard of physical and mental health - is contained in article 12(1) of the International Covenant on Economic, Social and Cultural Rights. The United Nations Committee on Economic, Social and Cultural Rights (the Committee) has stated that health is a ‘fundamental human right indispensable for the exercise of other human rights’, and

that the right to health is not to be understood as a right to be healthy, but rather entails a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

Private health insurance regulation assists with the advancement of these human rights by improving the governing framework for private health insurance in the interests of consumers.  Private health insurance regulation aims to encourage insurers and providers of private health goods and services to provide better value for money to consumers, to improve information provided to consumers of private health services to allow consumers to make more informed choices when purchasing services and requires insurers not to differentiate the premiums they charge according to individual health characteristics such as poor health. 

Discussion of the « Bill »

The Committee states that the notion of ‘the highest attainable standard of health’ takes into account both the condition of the individual and the country’s available resources.   The right may be understood as a right of access to a variety of public health and health care facilities, goods, services, programmes and conditions necessary for the realisation of the highest attainable standard of health.

There is no incompatibility with the right to health.

Conclusion

This Schedule is compatible with human rights because it advances the protection of human rights.



Amendments

Part 1 Amendments

The Schedule repeals Chapter 3 of the National Health Reform Act « 2011 » (the Act) to abolish the National Health Performance Authority (NHPA), and repeals other sections of the Act that refer to the NHPA.

Item 1 Paragraph 3(b)

Repeal of this paragraph removes the reference to the NHPA from the statement of the object of the Act, which is to establish a number of government bodies.

Item 2 Section 4

The amendments remove references to the NHPA from the Simplified Outline of the Act.

Item 3 Section 4

The amendments remove references to the NHPA’s functions from the Simplified Outline of the Act.

Item 4 Section 5

This item repeals the first appearing definition of local hospital network given in Section 5 Definitions, which is the definition that applies throughout Chapter 3 of the Act that governs the functions and operations of the NHPA.

Item 5 Section 5

This amendment to the second appearing definition of local hospital network removes the reference to the use of the term in Part 5.2 of the Act, which is no longer needed following the repeal of the first appearing definition and of Chapter 3.

Item 6 Section 5

This item repeals a number of terms defined in Section 5 Definitions which are used in Chapter 3. These either refer to the Performance Authority or are used in descriptions of the functions or operations of the NHPA.

Item 7 Section 5 (paragraph (b) of the definition of vacancy

This item repeals the reference to a member of the Performance Authority from the definition.

Item 8 Subsection 6(2)

This item repeals the reference to the Chair , Deputy Chair and members of the Performance Authority from Section 6 Vacancies.

Item 9 Paragraph 54H(1)(a)

This item repeals the reference to the Performance Authority from the list of agencies, bodies and persons given in paragraph 54H(1) which relates to the disclosure of protected Commission information by the Australian Commission for « Safety » and Quality in Health Care to the listed entities.

Item 10 Chapter 3

This item repeals the whole of Chapter 3, abolishing the NHPA and ceasing the functions of the Chief Executive Officer, NHPA staff and the NHPA’s Committees.

Item 11 Paragraph 220(1)(a)

This item repeals the reference to the Performance Authority from the list of agencies, bodies and persons given in paragraph 220(1) which relates to the disclosure of protected Pricing Authority information by the Independent Hospital Pricing Authority to the listed entities.

Item 12 Paragraph 275 (1)(b)

This item repeals the reference to the Performance Authority from the list of agencies, bodies and persons given in paragraph 275(1) which relates to the disclosure of protected Funding Body information by the Administrator of the Funding Pool to the listed entities.

Item 13 Paragraph 279(1)(b)

This item repeals the reference to the Performance Authority from the list of bodies established under the Act given in paragraph 279(1) which relates to the disclosure by any of the bodies listed of information that is likely to enable the identification of a particular patient.

Part 2 - Application and transitional provisions

The Schedule enables transitional arrangements to be implemented that deal with matters that accompany the cessation of the NHPA and the transfer of assets and liabilities to the AIHW.

Division 1 Interpretation

Item 14 Interpretation

This item sets out definitions of terms relating to the transfer of agency assets and liabilities that are relied on in a number of provisions in Division 2 of Part 2 of the Schedule, including, for example, assets official and land registration official .

Division 2 Transfer of assets and liabilities

Item 15 Vesting of assets and Item 16 Vesting of liabilities

These items set out that the assets and liabilities of the NHPA become assets and liabilities of the AIHW at the transition time , which is defined in Item 14.

Item 17 Transfers of land may be registered and Item 18 Certificates relating to vesting of assets other than land

These items set out that if land or an asset other than land vests in the AIHW, and the Health Minister has signed a certificate that identifies the land or the asset and states that it has become vested with the AIHW under Division 2, then a land registration official or assets official, as defined in Item 14, may deal with the matter to give effect to the certificate. These items are included to assist readers, as the certificate in not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 20013 .

Division 3 Transfer of other matters - items 19, 20, 21, 22, 23 and 24

The provisions in Division 3 address the treatment of a range of matters that applied to the NHPA before the transition time , which is defined in Item 14. The general principle applied is that after the transition time , the matter in question is to be treated as if it applied to the AIHW. The matters include things done by the NHPA or the NHPA CEO (Item 19), references in certain instruments to the NHPA or the NHPA CEO (Item 20), the transfer of appropriated money (Item 21), and legal proceedings of the NHPA (Item 22),

In addition, Division 3 addresses the transfer of NHPA’s records and documents to the AIHW (Item 23), and the application of the « Safety » , Rehabilitation and Compensation Act 1988 to persons who were staff of the NHPA at any time before the transition time (Item 24).

Item 25 No transfer of appointment, engagement or employment of staff

This item states that none of the application and transfer provisions set out in Part 2 have the effect of extending the engagement of members of the Performance Authority or of staff who were employed by the NHPA immediately before the transition time to the AIHW. 

Division 4 Annual reporting obligation

Item 26 Final annual report for the NHPA

The provisions in this item set out that the report on the activities of the NHPA required under the Public Governance, Performance and Accountability Act 2013 for the final reporting period will be prepared by the Health Secretary and given to the Health Minister for presentation to the Parliament.

Division 5 Disclosure and use of information - items 27, 28 and 29

The provisions in Division 5 are intended to ensure that the provisions of the National Health Reform Act « 2011 » regarding secrecy and the protection of information, and patient confidentiality continue to apply after the transition time . The provisions cover protected Performance Authority information (Item 27), the use of personal information in reports (Item 28), and the protection of patient confidentiality (Item 29).

Division 6 Miscellaneous - items 30, 31, 32, 33 and 34

The provisions in Division 6 are intended to ensure the transparent, efficient and effective transfer of the matters covered in Part 2 to the AIHW. They cover matters such as stamp duty and other state or territory taxes in relation to vested assets (Item 30), certificates issued under Part 2 (Item 31) (noting that this provision is intended to assist readers, as the certificates are not instruments within the meaning of subsection 8(1) of the Legislation Act 2003), delegation by the Health Minister of powers and functions under Part 2 (Item 32), and compensation for the acquisition of property (Item 33).

In addition, Division 6 enables the Health Minister to make rules on transitional matters relating to the amendments or repeals made by this Schedule (Item 34). This is intended to allow the Minister to respond to transitional matters not anticipated in the preparation of this Schedule that may otherwise prevent the orderly and timely transfer of assets and liabilities and other matters covered in Part 2. It is intended that any functions conferred on the AIHW by the Minister under Item 34(2)(a) can only be of a transitional nature. It is not intended that any permanent functions that would operate after transition would be conferred.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Abolishing the National Health Performance Authority

These amendments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview

This Schedule repeals Chapter 3 of the National Health Reform Act « 2011 » to abolish the National Health Performance Authority.

Human rights implications

In considering whether the repeal of Chapter 3 of the Act engages any applicable rights or freedoms, particular consideration has been given to the right to health contained in article 12 of the International Covenant on Economic, Social and Cultural Rights.

The main function of the National Health Performance Authority (NHPA) is to monitor and report on the performance of hospitals, primary health care organisations and other bodies or organisations that provide health services. In this respect, the « bill » may be seen as engaging the right to health.

However, the Australian Institute of Health and Welfare (AIHW) will continue to publish the performance reports previously published by the NHPA. Previous administrative arrangements for the collection of data, the monitoring of performance and the publication of reports will not be affected by the abolition of the NHPA.

The abolition of the NHPA will have no effect on the ability of hospitals and other services to provide health care to patients and will not impose any additional regulatory burden on health services.

Therefore the repeal of Chapter 3 of the Act does not limit any applicable human rights.

Conclusion

This Schedule is compatible with human rights as it does not raise any human rights issues.

 



Chapter 8          

Aged care

Outline

Part 1 increases the compliance powers of the Secretary in relation to the Department of Health’s reviews (audits) of care recipient appraisals submitted by aged care providers to receive Commonwealth subsidy. These appraisals are conducted using the Aged Care Funding Instrument (ACFI). When an appraisal is received, the Secretary must classify the care recipient according to the level of care he or she needs, relative to the needs of other care recipients.

In 2014-15 there was a $150 million overspend on ACFI subsidy, with one-in-eight of the 20,000 appraisals reviewed found to be incorrect or false.

This Part introduces a civil penalty of up to 60 penalty units if approved providers on more than one occasion in a two year period give false, misleading or inaccurate information in connection with an appraisal or reappraisal. Before the introduction of this item, the Aged Care Act 1997 did not include civil penalty provisions.

This Part makes it easier for the Secretary to require an approved provider to reappraise its care recipients or suspend it from making further appraisals if the provider gives false, misleading or inaccurate information in connection with an appraisal or re-appraisal.

In addition, if the Secretary suspects on reasonable grounds that a care recipient’s care needs have decreased significantly, this Part gives the Secretary the power to require the approved provider to re-appraise the care recipient.

The Part also changes the date that a change in classification following a review by the Department is taken to have effect. These amendments will allow the Secretary to recover overpayments of subsidy from the date the care recipient was originally classified. Currently, the Secretary can only recover overpayments from a maximum of six months before a change in classification.

The Part also amends the Aged Care Act to allow for the charging of a fee if approved providers seek reconsideration by the Secretary of a classification downgrade.

This Part also amends the Aged Care Act to make it clear that in deciding on a classification level, the Secretary can take into account the manner in which care is provided to a care recipient, including but not limited to the qualifications of a person required to provide care or treatment.

Notes on Clauses

Aged Care Act 1997

5: After subsection 25-1(3)

Item 5 amends section 25-1 of the Aged Care Act to allow the Secretary in deciding on a classification level for a care recipient to take into account the manner in which care is provided, including but not limited to the qualifications of a person required to provide care or treatment.

7: Validation of Classification Principles

Item 7 provides that classification decisions before the commencement of these amendments that took into account the manner in which care was provided are valid. However this item does not affect the validity of any such decisions that have been the subject of proceedings heard and finally determined by a court.

This amendment ensures that classification decisions which considered the manner in which care was provided, including the qualifications of the person providing the care, in determining the amount of Commonwealth subsidy payable to an approved provider will be valid, even if made before commencement of this item.

It is a long standing practice that certain types of care must be provided by qualified health professionals for providers to be eligible for the commensurate level of Commonwealth funding under the ACFI.

10: Paragraph 25-4(1)(b)

Item 10 omits the word ‘and’ from paragraph 25-4(1)(b) of the Aged Care Act, which is required to give effect to the following item.

15: Paragraph 25-4(1)(c)

Item 15 repeals paragraph 25-4(1)(c) of the Aged Care Act to give the Secretary the discretion to suspend an approved provider, from making appraisals if the approved provider gave false, misleading or inaccurate information in an appraisal or reappraisal connected with a classification that was reviewed, and changed under section 29-1 of the Aged Care Act.

Currently, the Secretary may only suspend an approved provider from making appraisals, after the Secretary changed a classification under 29-1, the approved provider then gives further false, misleading or inaccurate information in connection with another appraisal.

20: At the end of subsection 25-4(1)

Item 20 adds a note to refer to section 27-3 (reappraisal required by the Secretary) and Division 29A (civil penalty for providing false, misleading or inaccurate information in connection with an appraisal or reappraisal) of the Aged Care Act.

25  Before subsection 27-3(1)

Item 25 inserts the heading ‘false, misleading or inaccurate information’ to improve the structure of this subsection.

30: Paragraph 27-3(1)(b)

Item 30 omits the word ‘and’ from paragraph 25-4(1)(b) of the Aged Care Act which is required to give effect to the following item.

35  Paragraph 27-3(1)(c)

Item 35 repeals paragraph 27-3(1)(c) of the Aged Care Act to give the Secretary the discretion to require a reappraisal to be made of the level of care needed by one or more care recipients, if the approved provider gave false, misleading or inaccurate information in an appraisal connected with a classification that was reviewed, and changed under section 29-1 of the Aged Care Act.

Currently, the Secretary may only require a reappraisal if, after the Secretary changed a classification under section 29-1, the approved provider then gives further false, misleading or inaccurate information in connection with another appraisal or reappraisal.

40  Application of amendments

Item 40 provides that the amendments to subsection 25-4(1) and 27-3(1) of the Aged Care Act apply to a change of classification that occurs on or after this item commences. However the appraisal or reappraisal may have occurred before this date.

45  At the end of subsection 27-3(1)

Item 45 adds a note to refer to section 25-4 (suspending approved providers from making appraisals and reappraisals) and Division 29A (civil penalty for providing false, misleading or inaccurate information in connection with an appraisal or reappraisal) of the Aged Care Act.

50  After subsection 27-3(3)

Item 50 inserts new subsection 27-3(3A) to give the Secretary discretion to issue a notice requiring an approved provider to reappraise the level of care needed by a care recipient, within the period specified in the notice, if the care recipient’s care needs have decreased significantly.

This item provides that the Classification Principles may specify the circumstances in which the care needs of a care recipient are taken to decrease ‘significantly’.

55  Subsection 27-3(4)

Item 55 amends subsection 27-3(4) to provide that the Secretary may vary or revoke a notice requiring an approved provider to reappraise the care needs of a care recipient under subsection 27-3(3A) (significant decrease in care needs).

60  Before subsection 27-3(5)

Item 60 inserts the heading ‘Authorised reappraisers’ before subsection 27-3(5) to improve the structure of this subsection.

65  At the end of subsection 27-3(5)

Item 65 amends subsection 27-3(5) to provide that the Secretary may authorise someone other than the approved provider to make the reappraisals required by subsection 27-3(3A) (significant decrease in care needs).

70  Section 29-2

Item 70 amends section 29-2 of the Aged Care Act to provide that a change of classification is taken to have had effect from the day on which the classification took effect.

This amendment will allow the Secretary to recover overpayments of subsidy from the date the care recipient was originally classified. Currently, the Secretary can only recover overpayments from a maximum of six months before a change in classification.

This change means that the Commonwealth can adjust payment of subsidy to approved providers where the original classification was based on an appraisal that was inaccurate or incorrect. Such an adjustment can result in either a recovery of an overpaid amount or the commensurate additional amount being added to subsidy payable to the provider.

75  Application of amendments

Item 75 provides that the amendments to section 29-2 of the Aged Care Act apply to a change of classification that occurs after this item commences. However, the appraisal or reappraisal may have occurred before that date.

80  At the end of Part 2.4

Item 80 introduces a civil penalty of up to 60 penalty units if approved providers give false, misleading or inaccurate information in connection with an appraisal on more than one occasion in a two year period.

The conduct enabling the Secretary to apply for a civil penalty will arise if:

•        the approved provider has received a written notice from the Secretary that it has provided false, misleading or inaccurate information in an appraisal or reappraisal connected with one or more classifications reviewed under subsection 29-1(3) of the Aged Care Act; and

•        within two years of the first written notice, it again provides false, misleading or inaccurate information in another appraisal or reappraisal.

The Secretary will be able to apply for a civil penalty in relation to each classification change based on false, misleading or inaccurate information. Therefore, if an approved provider gives false, misleading or inaccurate information in more than one appraisal that leads to a classification change, the Secretary will be able to apply for a civil penalty in relation to each classification change.

Approved providers will continue to be able to seek reconsideration by the Secretary of any change of classification under subsection 29-1(1) of the Aged Care Act. If dissatisfied with the reconsideration decision, providers will continue to be able to seek review by the Administrative Appeals Tribunal.

82  Before subsection 85-5(1)

Item 82 inserts the heading ‘Request for reconsideration of reviewable decision’ before subsection 85-5(1) to improve the structure of this subsection.

83  After subsection 85-5(4)

Item 83 introduces the requirement to comply with section 85-6, which deals with application fees, if the reviewable decision was made under subsection 29-1(1) (a decision to change the classification of a care recipient).

85  After section 85-5

Item 85 introduces an application fee for reconsideration of a decision under subsection 29-1(1) to change the classification of a care recipient.

The amount of the fee and any method of working out the fee may be specified in the Classification Principles. The Classification Principles may also deal with the waiver or refund of an application fee, or circumstances in which an approved provider is exempt from paying the fee.

The introduction of an application fee is intended to allow providers with material new information to apply for reconsideration of section 29-1 classification changes without charge, but to discourage providers without material new evidence and with little prospect of success from seeking reconsideration. This will reduce the current demand on Commonwealth resources arising from such processes.

95  Before Division 96

Item 95 inserts a new section 95C-1 into the Aged Care Act to trigger provisions of the  Regulatory Powers (Standard Provisions) Act 2014  in relation to the imposition of the new civil penalties established by item 80. The Secretary is an authorised applicant who may apply to a relevant court for a civil penalty order under the Aged Care Act.

For the purposes of the new section 95C-1 of the Aged Care Act, a relevant court is the Federal Court of Australia, the Federal Circuit Court of Australia or a court of a state or territory which has the necessary jurisdiction.

100  Section 96-1 (at the end of the cell at table item 9, column headed “Part or provision”)

Item 100 amends the table in section 96-1 of the Aged Care Act, to provide that the Minister may make Classification Principles necessary or convenient to give effect to section 85-6 (an application fee for reconsideration).

105  Clause 1 of Schedule 1

Item 105 inserts the terms ‘civil penalty provision’ and ‘Regulatory Powers Act’ in Schedule 1-Dictionary to the Aged Care Act. It provides that these terms have the same meaning as in the Regulatory  Powers (Standard Provisions Act 2014 .

Part 2-Adviser and administrator panels

Outline

Part 2 will remove the requirement for approval by the Secretary of advisers that assist with conducting care recipient appraisals under the Aged Care Act. In place, the proposed amendments provide for restrictions on who can be an adviser to be set out in the Classifications Principles.

The measure will also remove the adviser and administrator panels currently used when approved providers are given a sanction. Rather than a pre-approved panel of providers, the proposed amendments provide for restrictions on who can be an adviser or administrator to be set out in the Sanctions Principles 2014 .

Providing the capacity for restrictions to be set out in the Classifications Principles and Sanctions Principles allows for the efficient and timely management of risks to care recipients and approved providers. Classes of persons will be restricted if they are likely to pose a risk if they take up that role, for example, those who are insolvent under administration may be excluded from being administrators.

There are two circumstances where advisers or administrators are used under the Aged Care Act .

Assisting with appraisals

To receive care an aged care recipient must be appraised and classified based on their care needs. Approved providers can conduct the necessary appraisals for the care recipients to which they provide care in certain circumstances. They then provide this information to the Department.

The Secretary can suspend approved providers from making appraisals if false, misleading or inaccurate information is provided for the purposes of classification.

When given the option by the Secretary, an approved provider can retain its ability to make appraisals if it agrees to appoint an adviser to assist it in conducting its appraisals.

Currently, the adviser must be approved by the Secretary, but does not have to be drawn from the adviser panel.

The amendments will remove the need for the Secretary to approve the adviser, but provide for restrictions on who can be an adviser to be set out in the Classification Principles.

Assistance to avoid the revocation of approved provider status

When an approved provider of aged care services has been non-compliant with one of its responsibilities it can have its approval under Part 2.1 of the Aged Care Act revoked. Rather than having its approved provider status revoked, the Secretary can offer the approved provider the option of agreeing to appoint an administrator and/or adviser to assist its return to compliance.

Under current arrangements, approved providers must select an administrator/adviser from panels that the Secretary manages. The Secretary also approves the administrator and/or adviser chosen by the approved provider.

The amendments in Part 2 of this Schedule will remove the panels and the need for the Secretary to approve the adviser or administrator. Under the amendments restrictions on who can be a relevant adviser or administrator can be set out in the Sanctions Principles.

Notes on Clauses

Aged Care Act 1997

Item 3: Paragraph 25-4A(1)(b)

Item 3 removes the requirement that the adviser be approved by the Secretary.

Item 4: Subsection 25-4A(2)

Item 4 will remove the requirement for the approved provider to give information to the Secretary about a proposed adviser. This is consistent with there no longer being the requirement for approval of the adviser by the Secretary.

Item 5: Subsection 25-4A(3)

Item 5 will amend the reference to the approval of the Secretary in determining the timeframe in which the adviser must be appointed. Following the amendment, the approved provider will need to appoint the adviser within the period specified in the agreement they enter to appoint an adviser. This is consistent with there no longer being the requirement for approval of the adviser by the Secretary.

Item 6: At the end of section 25-4A

Item 6 will add two additional subsections to section 25-4A of the Aged Care Act. Subsection (4) provides that the Classification Principles may exclude a class of persons from being appointed as an adviser. Subsection (5) provides that the Classification Principles may specify matters to be taken into account in specifying the timeframe within which an adviser must be appointed.

Item 7: Paragraph 25-4B(1)(a)

Item 7 will amend paragraph 24-4B(1)(a) in line with the repeal of subsection 25-4A(2).

Item 8: Subparagraphs 66-2(1)(a)(iii) and (iv)

Item 8 will remove the requirement that the adviser or administrator be approved by the Commonwealth.

Item 9: Subsections 66-2(2) and (3)

Item 9 will add to the current restriction preventing the Commonwealth from being appointed an adviser or administrator. The provision now also explicitly prevents Commonwealth officers or employees from being appointed.

Item 10: Division 66A (heading)

Item 10 will repeal the current heading and substitutes a new heading consistent with subsequent changes to the Division.

Item 11: Section 66A-1, 66A-2 and 66A-3

Item 11 will repeal sections 66A-1, 66A-2 and 66A-3 and substitutes new sections 66A-2 and 66A-3.

The repeal of section 66A-1 removes the requirement to establish a panel and removes consequent provisions.

Proposed sections 66A-2 and 66A-3 will no longer require notification to the Secretary of a proposed adviser or administrator. These sections will also no longer require approval by the Secretary of an appointment.

The new provisions will provide new eligibility requirements for being appointed an adviser or administrator consistent with the removal of the adviser and administrator panel. The sections provide that the Sanctions Principles may exclude a class of persons from being appointed and that a person is not eligible to be appointed if they are within a class of persons listed.

These new provisions will also provide that an approved provider must appoint the adviser or administrator within the time period specified in their agreement to appoint (section 66-2 of the Aged Care Act refers). This new provision provides that the Sanctions Principles may specify matters for the Secretary to take into account when setting the period in which an adviser or administrator must be appointed.

Item 12: Application provisions

Item 12 relates to application provisions that set out when the amendments to sections 25-4A, 25-4B and 66-2 apply to the Aged Care Act.

Part 3-Approved provider obligations

Outline

Part 3 will amend approved provider obligations under the Aged Care Act for an approved provider of aged care to notify the Secretary of certain changes to any of its key personnel. The Aged Care Act currently requires approved providers to notify the Department, within 28 days, of any changes to key personnel. The proposed changes will reduce administrative burden by making this a requirement only when the change in personnel would materially affect the provider’s suitability to be a provider of aged care.

Notes on Clauses

Aged Care Act 1997

Item 13: Subsection 9-1(1)

Item 14: Subsection 9-1(3)

Item 15: Subsection 9-1(3A)(a)

Item 16: Subsections 9-1(6), (7) and (8)

Items 13 to 16 will amend or repeal sections of the Aged Care Act that impose a regulatory duty on approved providers of aged care to notify the Department of any changes in key personnel. Currently an approved aged care provider must notify the Department of any changes in key personnel within 28 days of the change occurring.

Item 17: Application provision

Item 17 is an application provision setting out when the amendments to section 9-1 apply to the Aged Care Act.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Aged care

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview

This Schedule deals with proposed amendments to the Aged Care Act 1997 (the Aged Care Act) relating to the creation of civil penalties for approved providers of aged care who engage in certain behaviours and other matters.

The subsidy the Commonwealth Government pays to approved providers is substantially affected by appraisals (and classifications that are based on appraisals) of care recipients’ care needs. This Schedule introduces a civil penalty of up to 60 penalty units if approved providers on more than one occasion in a two year period give false, misleading or inaccurate information in connection with an appraisal or reappraisal.

This Schedule makes it easier for the Secretary to require an approved provider to re-appraise its care recipients or suspend it from making further appraisals if the provider gives false, misleading or inaccurate information in connection with an appraisal or reappraisal.

In addition, if the Secretary suspects on reasonable grounds that a care recipient’s care needs have decreased significantly, this Schedule gives the Secretary the power to require the approved provider to re-appraise the care recipient.

The Schedule also changes the date that a change in classification following a review by the Department is taken to have effect. These amendments will allow the Secretary to recover overpayments of subsidy from the date the care recipient was originally classified. Currently, the Secretary can only recover overpayments for a maximum of six months prior to a change in classification.

The Schedule also amends the Aged Care Act to allow for the charging of a fee if an approved provider seeks reconsideration by the Secretary of a classification downgrade.

This Schedule also amends the Aged Care Act to make it clear that in deciding on a classification level, the Secretary can take into account the manner in which care is provided to a care recipient, including but not limited to the qualifications of a person required to provide care or treatment.

This Schedule will abolish the adviser and administrator panel arrangements set out in the Aged Care Act 1997 . Approved providers under sanction would be able to choose their own advisers and administrators. The measure also includes the removal of the requirement that the Secretary approve advisers that assist with Aged Care Funding Instrument assessments for approved providers who are to be suspended from this activity.

Approved providers would be required to have the adviser and/or administrator appointed and on site within a specified timeframe, to mitigate risks to care recipients. The Secretary and the Australian Aged Care Quality Agency will retain capacity to monitor the approved provider, including during the sanction period. Further, the Secretary will still have the ability revoke approved provider status and withdraw Commonwealth funding.

This measure will amend the obligations in the Aged Care Act for approved providers to notify the Secretary of certain changes to any of its key personnel in circumstances that do not materially affect the approved provider’s suitability to be a provider of aged care.

Human rights implications

This Schedule engages the following rights:

•        right to health (Article 12(1) of the International Covenant on Economic, Social and Cultural Rights);

•        right to an effective remedy (Article 2 of the International Covenant on Economic, Social and Cultural Rights);

•        right to a fair hearing and fair trial (Articles 14 and 15 of the International Covenant on Economic, Social and Cultural Rights)

Right to health

The Schedule promotes the human right to health contained in Article 12 of the International Covenant on Economic, Social and Cultural Rights. Under Article 12(2) the State Parties to the Convention agree to take steps to achieve the full realisation of this right. These steps include the creation of conditions which assures medical services and medical attention in the event of sickness.

In order to ensure the sustainability of the aged care system so that all Australians get the care they need, regard must be had to the limited resources available for support services and programs under the Aged Care Act. The reduction of some regulatory burden on approved providers will ensure care services remain affordable and appropriate to the needs of the people who require it. Strengthened compliance powers take into account the need for providers to be accountable for funding provided.

Right to effective remedy

This Schedule engages the right to an effective remedy under Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR). Article 2(3) of the ICCPR protects the right to effective remedy for violation of rights or freedoms recognised by the ICCPR, and provides for a person’s right to be determined by competent judicial authorities, by administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State.

The Schedule amends the Aged Care Act to allow for the charging of a fee if an approved provider seeks reconsideration by the Secretary of a classification downgrade. However, the existing right to internal review via reconsideration, then merits review by the Administrative Appeals Tribunal is retained

The reconsideration process is resource intensive and the introduction of fees reflects the cost of providing this service. The Schedule provides that the amount of the fee is reasonably related to the expenses incurred by the Commonwealth. There is also capacity for exemption, waiver and refund of the fees.

Accordingly, any limitation of the right to access to justice is within the allowable limitation provided in Article 2(3) of the ICCPR. Any limitation on the right to access to justice by the application fee is reasonable, necessary and proportionate.

Right to a fair hearing and fair trial

The civil penalty provisions in the « Bill » , which in turn rely on the standard civil penalty provisions in the Regulatory Powers (Standard Provisions) Act 2014, may potentially engage the criminal process rights under Article 14 of the ICCPR, if the civil penalty provisions are classified as “criminal” under human rights law.   Even though the « Bill » labels the provisions as civil penalties, this is not determinative and the nature and severity of the provisions must be assessed.

Under the civil penalty provisions, proceedings are instituted by a public authority with statutory powers of enforcement in a court.  A finding of culpability precedes the imposition of a penalty.  This might make the penalties appear ‘criminal’ however this is not determinative.  While the provisions are deterrent in nature, these penalties generally do not apply to the public at large.  Only approved providers of aged care who receive Commonwealth subsidy for the provision of aged care will be impacted by these penalties.  Further, the severity of the penalties is not too high, with the pecuniary penalty being 60 units.  This penalty is justified as the payment of Commonwealth subsidy is based on information that approved providers use to appraise its care recipients. In 2014-15 there was a $150 million overspend on subsidy, with one-in-eight of the 20,000 appraisals reviewed found to be incorrect or false. There needs to be a civil penalty to deter approved providers from relying on false, misleading or incorrect information in appraisals. In light of this analysis, the nature and application of the civil penalty provisions suggest that they should not be classed as criminal under human rights law.

Only the Secretary may seek the imposition of civil penalties, and this must be done via an application to a court.  Matters can be considered by the Federal Court of Australia, Federal Circuit Court of Australia or certain courts of states or territories that will have jurisdiction.  These arrangements ensure that the most serious matters are dealt with independently of the Department of Health.

Conclusion

The Schedule is compatible with human rights because to the extent that it promotes certain rights, including the right to health, and that for the right it limits, the limitation is reasonable, necessary and proportionate.

 



Chapter 9          

Dental services

Amendments

Age Discrimination Act 2004

Item 1

This item amends the Age Discrimination Act 2004 to provide that it does not apply to the new Part 1A to be added to the Dental Benefits Act 2008 by Item 5 in this Schedule. 

The Age Discrimination Act already provides that it does not apply to section 5 and Part 4 of the Dental Benefits Act.  This is because the Act has previously limited benefits to children.  It is expected that agreements with the states to be entered into under the new Part 1A will provide for services for all children but only concession cardholder adults.

Dental Benefits Act 2008

Item 2

This item amends the title of the Act to reflect that it will no longer provide a framework for dental benefits.

Item 3

This item replaces the simplified outline of the Act with a new outline reflecting its main focus on providing financial assistance to states and territories in relation to dental services.

Item 4

This item limits the application of the definition of dental service in section 4 so that the term will have its ordinary meaning in the first sentence in the outline of the Act in section 3 and in the new Part 1A of the Act.

Item 5

This item inserts a new Part 1A into the Act.  The new Part sets out a framework for the provision of grants of financial assistance to the states and territories.

New section 7B sets out a simplified outline of the Part, and section 7C defines various terms used in the Part. Section 7D empowers the Minister, by notifiable instrument, to determine amounts to be paid to a state by way of financial assistance in relation to dental services provided on or after 1 January 2017.  The Minister must not make a determination unless an agreement is in place between the Commonwealth and the state as provided for in section 7E, and in making the determination the Minister must have regard to the agreement.

Section 7E empowers the Commonwealth to enter into agreements with the states relating to financial assistance for the provision of dental services.  The Government intends that agreements made under this section will be published on the COAG website, as are existing National Partnership Agreements.

Section 7F provides that the terms and conditions applying to the grant are those set out in the agreement, and any other terms and conditions determined by the Minister by legislative instrument. 

The ability for the Minister to set additional terms and conditions is intended as a reserve power to cover unforeseen circumstances.  As any such terms and conditions will be in a legislative instrument they will be subject to Parliamentary scrutiny and potential disallowance.

Section 7G provides that financial assistance is subject to a cap.  The cap for the first three years is set as:

•        2016-17: $175,000,000

•        2017-18: $415,632,000

•        2018-19: $420,224,000

The funding cap for 2016-17 is based on a start date of 1 January 2017.  This section also provides the Minister for Health with the ability to reduce the cap in 2016-17 if required by disallowable instrument.  This power is necessary because the Government has decided that it wishes to spend a total of $415.6 million on dental services in 2016-17 under this part of the Act, the Child Dental Benefits Schedule and the National Partnership Agreement on Adult Public Dental Services.  At this stage the amount that will be spent under the Child Dental Benefits Schedule for the period July to December 2016 is unknown.  The cap in 2016-17 of $175,000,000 has been included in the Act as the maximum amount that could be available for spending under this part of the Act.  The Minister will make an instrument setting a lower amount if required once actual expenditure under the Child Dental Benefits Schedule for the period July to December 2016 is available.

For 2019-20 and later years the cap will be calculated as the previous year’s cap multiplied by an indexation factor and a population factor.

The cap for a financial year applies to the amount payable in respect of services rendered in that financial year, but does not limit the amount to be paid during that financial year.  If the terms of a section 7E agreement involve the calculation of  payments based on activity during a financial year, and that activity is not reported until a later financial year, payments can still be made in that later financial year (as long as the cap for the first year has not been reached). 

Section 7H sets out the calculation of the indexation factor by reference to the ratio between the ABS CPI index number for the twelve months to December preceding the financial year, and the ABS CPI index number for the preceding twelve months.

Section 7J sets out the population factor by reference to the growth in the estimated resident population in the twelve months to December preceding the financial year.  This figure is published by the Australian Bureau of Statistics in its quarterly publication 3101.0 - Australian Demographic Statistics.

Indexation under sections 7H and 7J by reference to a period ending before the financial year will allow the cap on financial assistance to be determined before the financial year begins, thus allowing certainty for state governments in planning the provision of public dental services.

Section 7K creates a special appropriation for the purpose of making the grants under section 7D. 

Section 7L requires the Minister to commission an independent review of the operation of the Part to be conducted before the end of 2020, and sets out the composition of the panel to conduct the review.  The report of the review must be tabled in the Parliament within 15 sitting days of its provision to the Minister. 

This provision mirrors the existing section 68 of the Act (to be repealed by Item 23), except that it is a once-off rather than a recurring triennial review.  The government will continue to monitor the operation of the Act, and does not consider triennial statutory reviews to be necessary.

Items 6 and 7

These items amend the heading and simplified outline of Part 2 of the Act to make it clear that the Part establishes an entitlement to dental benefits only for services rendered before 1 January 2017.

Item 8

This item amends subsection 9(1) to provide that dental benefits are only payable in respect of services rendered before 1 January 2017.

Items 9 and 10

These items amend the heading and simplified outline of Part 3 of the Act to make it clear that the Part deals with the payment of dental benefits only for services rendered before 1 January 2017.

Item 11

This item amends subsection 11(1) to provide that dental benefits are only payable in respect of services rendered before 1 January 2017.

Items 12 and 13

These items amend section 20B, dealing with directions by the Minister to practitioners who are wholly or partly disqualified from providing dental services to refrain from providing services.  Item 12 amends subsection 20B(1) to provide that directions can only be provided before 1 January 2017, and Item 13 inserts a new subsection 20B(3A) to provide for the revocation of any directions at the end of 31 December 2016.

Items 14 and 15

These items amend section 20D, dealing with directions by the Minister to practitioners who are wholly or partly disqualified from providing dental services to display notices of disqualification.  Item 14 amends subsection 20D(1) to provide that directions can only be provided before 1 January 2017, and Item 15 inserts a new subsection 20D(4A) to provide for the revocation of any directions at the end of 31 December 2016.

Items 16 to 18

These items amend the heading and simplified outline of Part 4 of the Act to make it clear that the Part does not require vouchers to be issued after 1 January 2017, and that any vouchers issued for 2016 cease to have effect at the end of 31 December 2016.

Item 19

This item inserts a new section 22A providing that a reference to a calendar year in Part 4 does not include a calendar year after 2016.

Item 20

This item amends section 34, to provide that protected information does not include information obtained by a person performing duties or functions or exercising powers under new Part 1A of the Act.  Under Part 1A information will only relate to the affairs of states, not individuals.

Item 21

This item amends the simplified outline of Part 6 to make it clear that Division 4 of that Part does not deal with recovery of amounts paid under new Part 1A.

Item 22

This item amends the heading of Division 4 of Part 6 to make it clear that the Division does not deal with recovery of amounts paid under new Part 1A.

Item 23

This item repeals section 68, dealing with the review of the Act.  Item 5 inserts a new section 7L requiring a review of the new Part 1A of the Act by the end of 2020.

Human Services (Medicare) Act 1973

Item 24

This item amends the definition of dental service in subsection 3A(3) to align it with the definition in the Dental Benefits Act as amended by Item 4 in this schedule.

Item 25

This item amends section 41G to provide that services, benefits, programs or facilities provided under new Part 1A of the Dental Benefits Act are not “medicare programs”.

Regulation Impact Statement

Name of proposal: Child and Adult Public Dental Scheme

Office of Best Practice Regulation (OBPR) ID number: 20127

Child and Adult Public Dental Scheme Regulation Impact Statement summary

Problem

Access to public dental services.

Recommended option

Option 2 - Child and Adult Public Dental Scheme

Poor oral health leads to poorer overall health outcomes such as visits to the GP or emergency department, hospitalisations that could have been prevented, and complications for other illnesses.

Good oral health involves ongoing maintenance for life, but dental care in Australia can be very expensive. Thirty per cent of adults avoid seeking dental treatment due to cost.

Public dental services face great pressure in providing services to eligible people. 

The existing Commonwealth funded Child Dental Benefits Schedule is poorly targeted as children already had good visiting patterns prior to its commencement.  Utilisation has also been low at around one third of eligible children.

This proposal closes the Child Dental Benefits Schedule to partly fund the proposed new Scheme.  As private dentists will not have direct access to the new Scheme there will be deregulation offsets achieved through the closure of the Child Dental Benefits Schedule.

This measure will provide funding to the states and territories to improve access to public dental services by establishing an ongoing capped special appropriation under the Dental Benefits Act 2008 .  Funding will be made available to the states under a National Partnership Agreement to operate from 1 January 2017 for an initial five year period.

The Commonwealth contribution under the program will be set at 40 per cent of the efficient price of the dental service, with states contributing the remaining costs.

With the additional Commonwealth funding available, more services will be provided which will have a positive impact on waiting lists.

The intention is that both adults on concession cards and all children will be eligible to receive public dental services under the program.

The Dental Benefits Act 2008 will be amended to close the Child Dental Benefits Schedule and to implement the Child and Adult Public Dental Scheme. The new scheme will commence on 1 January 2017.

Background

The Government has proposed a new national Child and Adult Public Dental Scheme to be introduced from 1 January 2017. The Scheme is to be implemented through a new five year National Partnership Agreement (NPA) that will provide funding to the states and territories (the states) to assist them with the delivery of public dental services to children and concession card holder adults, supported by an ongoing special appropriation.  Funding for the Scheme is offset by ceasing the existing Child Dental Benefits Schedule (CDBS) and from not continuing with the current NPA on Adult Public Dental Services.

The Commonwealth would pay 40 per cent of the national “efficient” price of dental services provided or purchased by the states. The high level principles underlying the Scheme will be set out in a NPA.

The closure of the CDBS and the establishment of the new scheme will require amendment of the Dental Benefits Act 2008 before 1 January 2017.

Problem Definition

•        Although Australians’ oral health has improved over the past three decades, largely through the introduction of fluoridation in the 1960s, poor oral health among adult Australians is still widespread.  Across the population as a whole, three out of 10 adults have untreated tooth decay.  The rate is more than twice this among adults on low incomes and Aboriginal and Torres Strait Islander people.  Rural and remote populations are also at greater risk of poor dental health.

•        Poor oral health leads to poorer overall health outcomes such as visits to the GP or emergency department and complications for other illnesses.  This also leads to greater costs to the health system.

•        Good oral health involves ongoing maintenance for life.  However, dental care in Australia can be very expensive.  Thirty per cent of adults avoid seeking dental treatment due to cost.

•        Public dental services face great pressure in providing services to eligible people.

•        The CDBS is significantly under utilised, with only around a third of eligible children having accessed the scheme.  The CDBS is also a poorly targeted use of Commonwealth funding, in that it is substituting Commonwealth expenditure for other sources of funding. Before the introduction of the CDBS, around 80 per cent of children visited a dental practitioner in a 12 month period.

Objective of Government Action

•        The Scheme will better utilise existing Commonwealth dental funding.

•        The Scheme will consolidate Commonwealth effort to target funding where it is most needed, to assist the states to provide more services to children and concession card holder adults, irrespective of where people reside.

Policy Options

Given the overall fiscal circumstances facing the Commonwealth, the only options considered were those that did not increase the Commonwealth’s fiscal exposure.

Option 1 (Status Quo)

Option Overview

The current Commonwealth funding arrangements for dental services are provided through the CDBS and the NPA on Adult Public Dental Services.  Under the CDBS, eligible children can receive up to $1,000 worth of dental treatment, capped over two calendar years.  Under the NPA, $155.0 million is being provided to the states and territories during 2015-16 for the treatment of 178,000 additional public dental patients.

Impacted Parties

•        state and territory governments; and

•        private dentists.

Impact Analysis

As these programs are already in place, there will be no change to the regulatory burden. Under the CDBS, dentists will continue to be required to obtain financial consent and to train staff in the processing of claims under the program.

The states are responsible for the delivery of public dental services and would continue to deliver services to concession card holder adults and children.

Option 2 - Child and Adult Public Dental Scheme

Option Overview

This measure will provide funding to the states and territories to improve access to public dental services by establishing an ongoing capped special appropriation under the Dental Benefits Act 2008.  Funding will be made available to the states under a NPA to operate from 1 January 2017 for an initial five year period.  After the fourth year, the program will be reviewed and the outcome of the review will inform the policy parameters of the next Agreement.

The Commonwealth contribution under the program will be set at 40 per cent of the efficient price of the dental service.  With the additional funding available, more services will be provided which should reduce waiting times.

Adults on concession cards and all children will be eligible to receive public dental services under the program.

The CDBS will be closed from 31 December 2016 (although benefits will still be paid for eligible services provided on or before that date).

Impacted Parties

•        state and territory governments and individuals seeking public dental care; and

•        private dentists.

Impact Analysis

There will be an impact on state and territory governments which are responsible for the provision of public dental services, as the amount of Commonwealth assistance will increase from an estimated $200 million in 2015-16 to over $400 million each year over the forward estimates.  Under this option, the additional Commonwealth funding will enhance the existing mechanisms in place to provide additional services with the increase in funding.

The states will continue to manage their waiting lists through controls such as co-payment arrangements; will determine state-specific eligibility criteria (subject to the Commonwealth’s policy intent that all children will be eligible for public dental services); and will continue to provide services based on clinical need.

Low income adults (predominantly concession card holders) who can generally only afford to receive dental care from public dental services have poor oral health and poor dental visiting patterns.  About half do not attend a dentist annually and, of those who do, about half attend only to address an urgent problem.

Before the NPA on Treating More Public Dental Patients that began in 2012-13 national average waiting times for adults for general treatment were over two years.  The Commonwealth investment under that NPA of $344 million over three years saw an additional 400,000 average complexity patients treated and national average waiting times for adults for general treatment reduced from 20 months to less than one year.

The states achieved this through a range of measures including employing additional temporary staff, extending opening hours for clinics, and increasing the contracted use of private sector dentists to deliver services to public dental patients.

Under the new Scheme, which will see a Commonwealth contribution of over $400 million a year, a sustained ongoing reduction in waiting times should be achievable.  The Commonwealth estimates that services should be available to an additional 600,000 average complexity patients who could not afford services in the private sector.

In the short term under the new Scheme it is expected that the states will continue the range of measures introduced under the NPA to increase service volumes and hence reduce waiting times.  In the medium term the assured source of funding made available through the special appropriation under the new Scheme should allow them to expand infrastructure and workforce and reduce their reliance on contracting with the private sector.  The final impact on the distribution of public service provision between the public and private sectors is uncertain.

The closure of the CDBS is not expected to have a significant impact on private sector dentists.  While the CDBS has been in operation for two and a half years, only one third of eligible children (around 1 million children annually) have made use of the scheme. 

Before the introduction of the CDBS around 80 per cent of children - or about 4.4 million children - visited a dental practitioner annually.  This proportion has been stable for many years.

Of the children who visited a dentist annually before the CDBS began in 2014 some 3.7 million were treated in the private sector using private health insurance or families’ own resources.  This strongly suggests that the CDBS simply substituted Commonwealth funding for other sources of funding for dental services for children.  The Commonwealth expects that closure of the CDBS will see a return to the service and funding patterns that applied up until the end of 2013.

Given the low utilisation of the CDBS, the direct financial impact on private sector dentists is expected to be minimal.  The government will continue to subsidise the cost of private health insurance, which pays benefits for many private sector dental services, through the private health insurance premium rebate.  There will, however, be a reduction in the regulatory burden on private sector dentists due to the closure of the CDBS, as set out in Appendix 1.

In summary, the new Scheme will more effectively target Commonwealth assistance at low income adults with poor oral health and poor dental visiting patterns who attend public dental services. 

Consultation

Consultations have taken place with jurisdictions, the Australian Dental Association (ADA), Consumers’ Health Forum (CHF), the Australian Healthcare and Hospitals Association (AHHA) and Private Healthcare Australia (PHA).  While discussions focused on an alternative public sector model to the option agreed by Government, the discussions covered principles which were broadly consistent with the new Scheme.  This included discussions on consolidating existing funding arrangements and developing a new legislatively based proposal to support states in the provision of public dental services.

Nature of consultation

Teleconferences and face to face meetings were held with the jurisdictions, ADA, CHF, AHHA and PHA.

Impacted parties

The ADA does not support the exclusion of the private sector from accessing direct Commonwealth funding.  The ADA also seeks further Commonwealth expansion of items and increased schedule fees under the CDBS.

AHHA was concerned that increasing funding for states would not result in a universal scheme, and would entrench differences between the states in how services are provided.

Other parties, including states and territories, were broadly supportive of the proposal.

Preferred Option

The Government’s preferred option is option 2. 

It considers that providing increased support to the states for public dental services which provide treatment for low income adults and children is a more effective use of taxpayers’ funds than the CDBS, noting that only 30 per cent of eligible children utilised the CDBS and 80 per cent of children were already receiving dental treatment annually before the CDBS began.

By focusing additional resources on improving access for concession card holders and children, the ongoing NPA will fill a key gap in the dental system.  The ongoing nature of the measure will provide the states with long term funding certainty, which will allow for the development of innovative models of care and will stabilise and improve waiting times.

Implementation

The broader principles of the Scheme will be established under a NPA, which operates under the federal financial relations framework, with payments based in statute and paid via the Treasury through a specific purpose payment.

The states will provide information on the services they provide to the Department of Health, which will calculate the amount of funding payable.  The Department will then recommend that payment be made by the Treasury.

The new Scheme will allow the states to maintain existing private sector arrangements and build on these where necessary.

It is proposed that the CDBS will close on 31 December 2016 and that the Scheme will commence on 1 January 2017.  The closure of the CDBS would be communicated in writing to eligible patients and dentists by the Department of Human Services.

Regulatory Burden and Cost Offset (RBCO) Estimate Table

Average Annual Compliance Costs (from Business as usual)

Change in Costs ($m)

Business

Community Organisations

Individuals

Total change in Cost

Total by Sector

-$5.254

$

-$3.671

-$8.925

 

Cost offset ($m)

Business

Community Organisations

Individuals

Total by Source

Agency

$

$

$

$

 

Are all new costs offset?

q Yes, costs are offset, please provide information below

q No, costs are not offset

ü Deregulatory, no offsets required

Total (Change in costs - Cost offset) ($million): -$8.925 million

The RBM calculations focus on closure of the CDBS.  They assume that closing the CDBS will lead to savings which are exactly equivalent to the regulatory costs associated with participating in the program.

The costing only relates to private sector regulatory costs:  public sector dental services were excluded.  The regulatory costs of participating in the CDBS apply to dental practices and patients and there are no costs for community organisations.

There is no up-to-date data on the number of private dental practices operating in Australia.  The number of private dental practices involved in the CDBS was estimated using Australian Institute of Health and Welfare (AIHW) workforce data, advice from the Department of Health’s dental advisers about the structure of the industry and the likely ratio of employed dentists to dental practices, and departmental data on the number of dentists participating in the program.  As of 2012, there were 10,254 employed private dentists in Australia.  The calculations assumed the number of private dental practices in operation is 60 per cent of this figure, i.e. 6152.  In 2015, 88 per cent of dental practitioners participated in CDBS.  By applying the same percentage to the number of practices it was calculated that there are 5414 private practices participating in the program.  Public dental services were excluded.

In 2015, 780,150 children utilised the CDBS as private patients which was used as the basis for calculating the regulatory costs to the individual.  Public patients using the program were excluded.

The key requirements for participating in the CDBS include checking eligibility and cap balance during dental visits, documenting informed financial consent between the dental provider and patient, and invoicing either by bulk billing or non-bulk billing methods.  The average amount of time taken for dentists or their staff to perform these procedures was calculated based on advice from the Department of Health’s dental advisers.  Salary rates were sourced from Payscale.com and the standard non-wage labour on-costs multiplier was applied.

As both dentists and patients take part in these processes, similar timings for patients were applied, less the time for administrative tasks that are only undertaken by dental practices such as record keeping.  The cost of patient time was calculated using the recommended cost of leisure time.  Additional time for patients who are not bulk billed and need to seek reimbursement from Medicare via the various claiming channels available was also estimated.

There are no offsets required for the proposed Child and Adult Public Dental Scheme as government-to-government regulation falls outside the Regulatory Burden Measurement Framework.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Dental services

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview of the Schedule

This Schedule amends the Dental Benefits Act 2008 (the Act) to close the Child Dental Benefits Schedule (CDBS) from 1 January 2017, and establish a framework for agreements between the Commonwealth and the states and territories (the states) to underpin a Child and Adult Public Dental Scheme.

The Child and Adult Public Dental Scheme is intended to provide financial assistance to the states to provide dental services to all children and concession cardholder adults.  The « Bill » establishes a cap on the amount of financial assistance that will be provided by the Commonwealth.   The terms and conditions for access to the financial assistance will be set out in agreements with the states.  The government intends that these agreements will be published on the COAG website, as are existing National Partnership Agreements.

Human rights implications

This Schedule engages the following rights:

•        right to health

•        right to social security.

Right to health

Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) defines the right to health as “the right to the enjoyment of the highest attainable standard of physical and mental health.”

Whilst the UN Committee on Economic, Social and Cultural Rights (the Committee) has stated that the right to health is not to be understood as a right to be healthy, it does entail a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

However, the Committee has stated that the notion of “the highest attainable standard of health” takes into account both the conditions of the individual and the country’s available resources.  The right may be understood as a right of access to a variety of public health and health care facilities, goods, services, programs and conditions necessary for the realisation of the highest attainable standard of health.

While the CDBS targets benefits to children in low to medium income families, it does not provide benefits for adults. 

The Australian Institute of Health and Welfare (AIHW) report Oral health and dental care in Australia: key facts and figures 2015 found that adults have much worse oral health than children (measured by the number of decayed, missing or filled teeth). 

A 2008 AIHW report Oral Health of Adults in the Public Dental Sector found that public dental patients were far more likely to suffer from decay, tooth loss and gum disease than the general population.  This suggests that financially disadvantaged Australians eligible for public dental services, namely pensioners and concession card holders, have a substantially reduced ability to access affordable and timely oral health care.  

Accordingly, the CDBS is not seen by the Government as the best mechanism for providing Australians with equal opportunity of access to dental care.

The Government intends instead to direct resources for dental services to children and low income patients who traditionally access public dental services through the states and territories. 

The ICESCR recognises that the right to health may be subject to limitations made for the purpose of promoting the general welfare of society as a whole.  The ICESCR also recognises that the ability of a government to promote the right to health is affected by the country’s available resources.  In this context, governments must assess which measures are most suitable to address the health needs of population as a whole.

Accordingly, a limitation on a section of the Australian population’s access to a particular health service will be legitimate where the Government:

(i)                  believes that the service is not well targeted to providing assistance to those Australians most in financial need; and

(ii)                has limited resources and intends to re-direct resources to more appropriate programs that are more equitably targeted to those financially disadvantaged Australians in greatest need.

The amendments made by the « Bill » are for a legitimate objective and are reasonable, necessary and proportionate, and therefore are compatible with Australia’s obligations with regards to the right to health.  

Right to social security

Article 9 of the ICESCR contains the right to social security, including social insurance. The right requires that a country must, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care.  Countries are obliged to demonstrate that every effort has been made to use all resources that are at their disposal in an effort to satisfy, as a matter of priority, this minimum obligation.

Further, the Committee has stated that there is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under ICESCR.  In this context, a retrogressive measure would be one taken without adequate justification that had the effect of reducing existing levels of social security benefits, or of denying benefits to persons or groups who were previously entitled to them.

However, it is legitimate for a Government to re-direct its limited resources to programs which it believes are more effective at meeting the general health needs of society, particularly the needs of the more disadvantaged members of society.  The closure of the CDBS will enable the Government to focus resources for dental services targeting not only children, but also adults with low incomes.

It is also relevant that the CDBS has only operated since the beginning of 2014, that before it began some eighty per cent of children saw a dentist annually, and that only around a third of eligible children have utilised the scheme.  This suggests that the CDBS has not been an important factor in supporting access to dental services to children, and that its removal will not be retrogressive. 

The state public dental services that will receive increased financial assistance under the amendments made by the « Bill » all provide services to children.  

This Schedule does not impact upon alternative means of support for services through Commonwealth funded rebates for private health insurance covering dental treatment.

There is no incompatibility with the right engaged because it is for a legitimate objective and reasonable, necessary and proportionate in the circumstances.

Conclusion

This Schedule is compatible with human rights because it advances the protection of human rights by enabling limited resources to be spent more effectively and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.



Outline of chapter

Schedule 10 to the « Bill » will remove the exemption from the 104 week newly arrived resident’s waiting period for new migrants who are family members of Australian citizens or long-term permanent residents.

These exemptions are currently contained in section 3 of the Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997 (Newly Arrived Resident’s Waiting Period Act) . This change will align the social security waiting period for working age payments for all newly arrived migrants to Australia, except for refugees, former refugees and their family members.

This Schedule will also move the remaining relevant exemptions found in section 3 of the Newly Arrived Resident’s Waiting Period Act into the Social Security Act and the Farm Household Support Act to remove the need to look at multiple Acts to work out whether a newly arrived resident’s waiting period applies.

Finally, this Schedule will also remove the savings provisions that allow a person to serve the newly arrived resident’s waiting period that applied when the person first entered Australia as a resident. This change means that from the commencement of this Schedule, any person who applies for a social security payment, a concession card or farm household allowance and is subject to a newly arrived resident’s waiting period will have to serve the current waiting period. In most cases this requires the person to be an Australian resident and in Australia for 104 weeks. The removal of the savings provisions is expected to affect very few people.

Background

In broad terms, section 3, the application provision, of the Newly Arrived Resident’s Waiting Period Act provides that newly arrived resident’s waiting periods in the Social Security Act do not apply to certain persons including refugees, former refugees, family members of refugees or former refugees, Australian citizens, family members of Australian citizens, a person who has been an Australian resident for a continuous period of two years and the family member of a person who has been an Australian resident for a continuous period of two years. This provision has had an ongoing effect and applies to all newly arrived resident’s waiting periods in the Social Security Act.

This Schedule will remove the exemption from the newly arrived resident’s waiting period for family members of Australian citizens and family members of persons who have been Australian residents for a continuous period of two years. This change will align the Social Security waiting period for working age payments for all newly arrived migrants to Australia, apart from refugees, former refugees and their family members. This change would reinforce the Australian Government’s position that all newly arrived migrants should be self-sufficient or seek support from family members and should not expect to be supported by the Australian taxpayer immediately on arrival in Australia. The newly arrived resident’s waiting period aims to ensure that new migrants to Australia take steps prior to moving to Australia to provide for their own financial support during their initial settlement period in Australia. It is reasonable to expect that migrants, particularly those with family members living in Australia, should be financially secure or at least put arrangements in place to support themselves prior to moving to Australia.

The continuing effect of section 3, the application provision, of the Newly Arrived Resident’s Waiting Period Act has led to ongoing confusion and meant that a person would have to look across multiple Acts in order to establish whether a newly arrived resident’s waiting period applies. In order to prevent this confusion and streamline these provisions, this Schedule will move the remaining relevant exemptions as found in section 3 of the Newly Arrived Resident’s Waiting Period Act into the relevant provisions for the payments in the Social Security Act and the Farm Household Support Act. The streamlining of these provisions will also reduce red tape. The remaining relevant exemptions for Australian citizens, refugees, former refugees and family members of refugees and former refugees will be reproduced in the relevant payment provisions. This means a person would only need to look at the Social Security Act or the Farm Household Support Act to determine whether they are subject to a newly arrived resident’s waiting period.

The length of a newly arrived resident’s waiting period has been increased and extended to a greater range of payments a number of times since its introduction in 1993. Currently, a person who arrives in Australia is subject to the newly arrived resident’s waiting period that was in place when they first entered Australia as a resident. From the commencement date of this Schedule, all historical savings provisions in the Social Security Act and the Farm Household Support Act that allow for a reduced newly arrived resident’s waiting period to be served will be removed. This means any person who applies for a social security payment, a concession card or farm household allowance would be required to serve the current newly arrived resident’s waiting period, which in most cases requires the person to be an Australian resident and in Australia for a period of, or periods totalling, 104 weeks. People will still be able to use periods of past residence towards the current 104 week period but will not be able to use the period of past residence to access a reduced waiting period that may have been in place when they first arrived in Australia. The removal of the historic savings provisions is expected to affect very few people. This change will also simplify how newly arrived resident’s waiting periods are to be applied as, in most cases, new migrants will be required to be an Australian resident and in Australia for a period of 104 weeks in order to serve the current newly arrived resident’s waiting period.

If this Act receives the Royal Assent before 1 January 2017, the amendments made by this Schedule commence on 1 January 2017. If this Act receives Royal Assent on or after 1 January 2017, the amendments made by this Schedule commence on the first 1 January, 1 April, 1 July or 1 October that occurs after the day this Act receives Royal Assent.

Explanation of the changes

Part 1 - Social security amendments

Amendments to the Social Security Act

Item 1 repeals the definition of ‘designated temporary entry permit’ at subsection 7(1). The removal of this definition is a consequential amendment based on the removal of historical saving provisions for previous versions of the newly arrived resident’s waiting period that occurs in later items of this Schedule. As a result of the removal of these provisions, the term ‘designated temporary entry permit’ is no longer referred to in the Social Security Act.

Item 2 repeals the definition of ‘permanent visa, special category visa, temporary visa and visa’ and substitutes a new definition of ‘permanent visa, temporary visa and visa’ at subsection 7(1). In effect, this new definition does not reproduced the definition of ‘temporary visa’. The removal of the definition of ‘temporary visa’ is a consequential amendment based on the removal of historical saving provisions for previous versions of the newly arrived resident’s waiting period that occurs in later items of this Schedule. As a result of the removal of these provisions, the term ‘temporary visa’ is no longer referred to in the Social Security Act.

Item 3 repeals subsection 7(6) and substitutes a new subsection 7(6).

New subsection 7(6) effectively replicates current subsection 7(6) but excludes payments that have a newly arrived resident’s waiting period from this qualifying residence exemption.

Current subsection 7(6) provides that a person has a qualifying residence exemption in relation to the specific payments listed if they reside in Australia and are either a refugee or former refugee. These include payments that have a newly arrived resident’s waiting period. Section 3 of the Newly Arrived Resident’s Waiting Period Act provides that a newly arrived resident’s waiting period does not apply to a person who arrives in Australia under the refugee or humanitarian program. This is substantially similar to current subsection 7(6) but does not contain the additional requirement of having to reside in Australia.

Later items in this Schedule move the remaining relevant exemptions from the newly arrived resident’s waiting period under section 3 of the Newly Arrived Resident’s Waiting Period Act into the specific provisions relating to each payment in the Social Security Act. This includes an exemption for a person who is a refugee, or was a former refugee, at the time they make a claim for payment. This means that an exemption from the newly arrived resident’s waiting period for refugees and former refugees will already exist in relation to each payment. Therefore, in order to prevent significant overlap, the payments which have a newly arrived resident’s waiting period have been excluded from the qualifying residence exemption at new subsection 7(6). This does not alter the effect this subsection has on other payments which are not excluded such as age pension or disability support pension.

Item 4 amends paragraph 7(6AA)(b) to exclude payments that have a newly arrived resident’s waiting period as well as parenting payment from this qualifying residence exemption.

Current paragraph 7(6AA)(b) provides that a person has a qualifying residence exemption in relation to the specified payments if they were a family member of a refugee or former refugee at the time the refugee or former refugee arrived in Australia. These include payments that have a newly arrived resident’s waiting period as well as parenting payment. Section 3 of the Newly Arrived Resident’s Waiting Period Act provides that a newly arrived resident’s waiting period does not apply to a person who is a family member of a refugee or humanitarian migrant or a family member of a former refugee or humanitarian migrant at the time the former refugee or humanitarian migrant arrived in Australia.

Later items in this Schedule will move the remaining exemptions from the newly arrived resident’s waiting period under section 3 of the Newly Arrived Resident’s Waiting Period into the specific provisions relating to each payment in the Social Security Act. This provision when moved will be further clarified to provide that a newly arrived resident’s waiting period does not apply to a person who was family member of another person at the time the other person became a refugee and is still a family member of that other person at the time the person makes a claim for payment or if that other person has died, was a family member of that other person immediately before the other person died. This change will also be applied to parenting payment despite a newly arrived resident’s waiting period not being attached to this payment in order to keep it consistent with other working age payments. Therefore, in order to prevent overlap and making the clarified exemption as moved from the previous application provision redundant, the payments which have a newly arrived resident’s waiting period and parenting payment have been excluded from the qualifying residence exemption at paragraph 7(6AA)(b). This does not alter the effect this paragraph has on other payments which are not excluded.

Item 5 amends paragraph 7(6AA)(f) to clarify that the qualifying residence exemption in this paragraph applies to all specified payments in this subsection. This is the only qualifying residence exemption that applies to payments which have a newly arrived resident’s waiting period. There is no equivalent exemption in the application provision of the Newly Arrived Resident’s Waiting Period Act that reflects this paragraph.

Item 6 repeals the definition of ‘designated temporary entry permit’ at subsection 23(1). The removal of this definition is a consequential amendment based on the removal of historical saving provisions for previous versions of the newly arrived resident’s waiting period that occurs in later items of this Schedule. As a result of the removal of these provisions, the term ‘designated temporary entry permit’ is no longer referred to in the Social Security Act.

Items 7 and 9 repeal the references to widow allowance in the definitions of ‘newly arrived resident’s waiting period’ and ‘waiting period’ to clarify that widow allowance is not to be considered as a payment to which the newly arrived resident’s waiting period applies. Throughout the widow allowance provisions, there is no reference to a newly arrived resident’s waiting period. In all other payments, newly arrived resident’s waiting periods are attached to the payability of the payment. While there is a residence requirement for widow allowance that refers to a similar period of time to a newly arrived resident’s waiting period, this is attached to qualification as opposed to payability. Removing the references to widow allowance from these definitions will clarify that widow allowance is not a payment which is subject to a newly arrived resident’s waiting period.

Item 8 repeals the definition of ‘temporary visa’ at subsection 23(1). The removal of this definition is a consequential amendment based on the removal of historical saving provisions for previous versions of the newly arrived resident’s waiting period that occurs in later items of this Schedule. As a result of the removal of these provisions, the term ‘temporary visa’ is no longer referred to in the Social Security Act.

Item 10 repeals paragraph 201AA(1)(a) and substitutes a new paragraph 201AA(1)(a). Current paragraph 201AA(1)(a) provides that a person is subject to the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling 104 weeks if they entered Australia on or after 4 March 1997. The new paragraph 201AA(1)(a) essentially removes this historical saving provision and provides that a person is subject to the current newly arrived resident’s waiting period from when they enter Australia. This change means any person who applies for carer payment on or after the commencement date will be subject to the current newly arrived resident’s waiting period regardless of when they entered Australia. The person would still be able to use periods of past residence in Australia as an Australian resident towards the 104 week waiting period. This change is expected to affect very few people.

Item 11 inserts a note after subsection 201AA(2) which directs the reader to paragraph 7(6AA)(f) for determining a qualifying residence exemption in relation to carer payment. This is the only qualifying residence exemption for carer payment.

Item 12 repeals subsection 201AA(5) and substitutes new subsections 201AA(5), 201AA(5A) and 201AA(5B).

Current paragraphs 201AA(5)(a)-(c) provide various saving provisions that provide the newly arrived resident’s waiting period at subsection 201AA(1) do not apply to persons already subject to a newly arrived resident’s waiting period, persons who have already served a newly arrived resident’s waiting period and persons who have been Australian residents for a period of, or periods totalling, 104 weeks. Repealing these provisions ensures that any person who applies for carer payment on or after the commencement date will be subject to the current newly arrived resident’s waiting period of being an Australian resident and in Australia for periods of, or periods totalling 104 weeks.

New subsections 201AA(5) and (5B) essentially reflect current paragraph 201AA(5)(d). New subsection 201AA(5) provides that the newly arrived resident’s waiting period at subsection 201AA(1) does not apply if, at the time the person makes a claim for carer payment, the person holds a visa that is in a class of visas as determined in an instrument under new subsection 201AA(5B). New subsection 201AA(5B) provides for the Minister to make a legislative instrument for the purpose of new subsection 201AA(5). A legislative instrument is necessary so the classes of visas that are exempt from the newly arrived resident’s waiting period can be updated as necessary. Subsection 201AA(5B) also clarifies that the class of visa listed in the instrument must not be a class covered in the instrument under paragraph 7(6AA)(f) in order to prevent unnecessary overlap.

New subsection 201AA(5A) reflects the transfer of the remaining relevant exemptions from the newly arrived resident’s waiting period in section 3 of the Newly Arrived Resident’s Waiting Period Act. New paragraph 201AA(5A)(a) provides that the newly arrived resident’s waiting period at subsection 201AA(1) does not apply to a person if they are a refugee or former refugee at the time the person makes a claim for carer payment. New paragraph 201AA(5A)(b) provides that the newly arrived resident’s waiting period does not apply to a person who is a family member of another person at the time the other person became a refugee and is also either still a family member of that other person at the time the person makes a claim for carer payment or if that other person has died, the person was a family member of that other person immediately before that other person died. Finally, new paragraph 201AA(5A)(c) provides the newly arrived resident’s waiting period does not apply to a person who is an Australian citizen at the time the person makes a claim for carer payment. 

Item 13 inserts references to the definitions of ‘family member’, ‘former refugee’ and ‘refugee’ to subsection 201AA(6). These terms are referred to in new subsection 201AA(5A).

Items 14 and 15 amend the widow allowance residence requirement provisions by repealing subparagraphs 408BA(2)(d)(i) and (ia) and omitting the words “if the woman entered Australia on or after the commencement day -” from subparagraph 408BA(2)(d)(ib).

The residence requirements for widow allowance should not be considered a newly arrived resident’s waiting period. The term ‘newly arrived resident’s waiting period’ is not mentioned at all throughout the widow allowance provisions and this residence requirement is attached to qualification whereas all other newly arrived resident’s waiting periods are attached to payability. However, this residence requirement is expressed in a similar manner, with similar historical savings provisions, to newly arrived resident’s waiting periods.

These items amend these residence requirements by removing the historical savings provisions to clarify that in relation to claims made on or after the commencement date of this Schedule, a woman will satisfy the residence requirement if she has been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks before lodging a claim for widow allowance. These changes mean a woman will no longer be able to access the reduced timeframes in these saving provisions and that the current timeframe will apply to all women regardless of when they first entered Australia. The woman would still be able to use periods of past residence in Australia as an Australian resident towards the 104 week waiting period. The removal of these historical savings provisions is not expected to affect many people.

Item 16 repeals subsection 408BA(6) which removes the definition of “commencement day”. This is a consequential amendment to the amendments made in items 11 and 12 above. Following those amendments, the term “commencement day” is no longer used in this section and there is no longer any need for this definition.

Items 17 to 19 add a stricter test for a residence exemption from parenting payment for family members of a refugees or former refugees than is currently contained in the qualifying residence exemption provision at subparagraph 7(6AA)(b).

Parenting payment is not a payment to which the newly arrived resident’s waiting period applies. However, there is a similar residential requirement in relation to the newly arrived resident’s waiting period at subparagraph 500(1)(d)(ii). Parenting payment is a working age payment similar to many other payments that have newly arrived resident’s waiting periods, such as new start allowance. These new amendments will apply the stricter test for family members of refugees and former refugees that is also applied to other payments with newly arrived resident’s waiting periods in order to promote consistency. The other exemptions from the newly arrived resident’s waiting period being moved over from section 3 of the Newly Arrived Resident’s Waiting Period Act for refugees, former refugees and Australian citizens will not be replicated for parenting payment.

These items insert new paragraph 500(1)(d)(iv) that provides that a person can be qualified for parenting payment if they satisfy subsection 500(3). New subsection 500(3) outlines the stricter family member test which requires a person to be a family member of another person at the time the person became a refugee is also either still be a family member of that other person at the time they make a claim for parenting payment or if that other person has died, haven been a family member of that other person immediately before that other person died.

New subsection 500(4) provides references to the definitions of ‘family member’, ‘former refugee’ and ‘refugee’. These terms are referred to in new subsection 500(3).

Note 1 following subsection 500(1) is repealed and substituted with a new note that clarifies the only relevant provisions for qualifying residence exemption for parenting payment are subsection 7(6) and paragraph 7(6AA)(f). This clarifies that the qualifying residence exemption at paragraph 7(6AA)(b) for a person who is a family member of a refugee or former refugee at the time the refugee or former refugee arrived in Australia does not apply.

Item 20 omits the words “on or after 4 March 1997” at paragraph 549D(1)(a). Current paragraph 549D(1)(a) provides that a person is subject to the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks if they entered Australia on or after 4 March 1997. By omitting these words, new paragraph 549D(1)(a) essentially removes this historical saving provision and provides that a person is subject to the current newly arrived resident’s waiting period from when they enter Australia. This change means any person who applies for youth allowance on or after the commencement date will be subject to the current newly arrived resident’s waiting period regardless of when they first entered Australia. The person would still be able to use periods of past residence in Australia as an Australian resident towards the 104 week waiting period. This change is expected to affect very few people.

I tem 21 repeals the note following subsection 549D(2) and substitutes a new note. This new note clarifies that paragraph 7(6AA)(f) is the only relevant qualifying residence exemption for youth allowance.

Item 22 repeals subsections 549D(3), (4) and (5). This removes various savings provisions that provide the newly arrived resident’s waiting period at subsection 549D(1) does not apply. This change ensures that the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks applies to those who have yet to make a claim for youth allowance.

Item 23 inserts new subsections 549D(7) and (8).

New subsection 549D(7) reflects the transfer of the remaining relevant exemptions from the newly arrived resident’s waiting period in section 3 of the Newly Arrived Resident’s Waiting Period Act. New paragraph 549D(7)(a) provides that the newly arrived resident’s waiting period at subsection 549D(1) does not apply to a person if they are a refugee or former refugee at the time the person makes a claim for youth allowance. New paragraph 549D(7)(b) provides that the newly arrived resident’s waiting period does not apply to a person who is a family member of another person at the time the other person became a refugee and is also either still a family member of that other person at the time the person makes a claim for youth allowance or if that other person has died, the person was a family member of that other person immediately before that other person died. Finally, new paragraph 549D(7)(c) provides the newly arrived resident’s waiting period does not apply to a person who is an Australian citizen at the time the person makes a claim for youth allowance.

New subsection 549D(8) provides references to the definitions of ‘family member’, ‘former refugee’ and ‘refugee’. These terms are referred to in new subsection 549D(7).

Item 24 omits the words “on which the person first entered Australia on or after 4 March 1997” and substitutes the words “the person first became an Australian resident” at paragraph 549E(a). This clarifies that a person’s newly arrived resident’s waiting period for youth allowance begins on the day they first become an Australian resident. This also further clarifies the removal of the historical saving provision and means that the current newly arrived resident’s waiting period applies to all people, regardless of when they first entered Australia.

Item 25 omits the words “on or after 4 March 1997” at paragraph 575D(1)(a). Current paragraph 575D(1)(a) provides that a person is subject to the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks if they entered Australia on or after 4 March 1997. By omitting these words, new paragraph 575D(1)(a) essentially removes this historical saving provision and provides that a person is subject to the current newly arrived resident’s waiting period from when they enter Australia. This change means any person who applies for austudy payment on or after the commencement date will be subject to the current newly arrived resident’s waiting period regardless of when they first entered Australia. The person would still be able to use periods of past residence in Australia as an Australian resident towards the 104 week waiting period. This change is expected to affect very few people.

Item 26 repeals the note following subsection 575D(2) and substitutes a new note. This new note clarifies that paragraph 7(6AA)(f) is the only relevant qualifying residence exemption for austudy payment.

Item 27 repeals subsections 575D(3) and (4) and substitutes new subsections 575D(3) and (4).

The repeal of current subsections 575D(3) and (4) will remove various savings provisions that provide the newly arrived resident’s waiting period at subsection 575D(1) does not apply. This change ensures that the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks applies to those who have yet to make a claim for austudy payment.

New subsection 575D(3) reflects the transfer of the remaining relevant exemptions from the newly arrived resident’s waiting period in section 3 of the Newly Arrived Resident’s Waiting Period Act. New paragraph 575D(3)(a) provides that the newly arrived resident’s waiting period at subsection 575D(1) does not apply to a person if they are a refugee or former refugee at the time the person makes a claim for austudy payment. New paragraph 575D(3)(b) provides that the newly arrived resident’s waiting period does not apply to a person who is a family member of another person at the time the other person became a refugee and is also wither still a family member of that other person at the time the person makes a claim for austudy payment or if that other person has died, the person was a family member of that other person immediately before that other person died. Finally, new paragraph 575D(3)(c) provides the newly arrived resident’s waiting period does not apply to a person who is an Australian citizen at the time the person makes a claim for austudy payment.

New subsection 575D(4) provides references to the definitions of ‘family member’, ‘former refugee’ and ‘refugee’. These terms are referred to in new subsection 575D(3).

Item 28 omits the words “on which the person first entered Australia on or after 4 March 1997” and substitutes the words “the person first became an Australian resident” at paragraph 575E(a). This clarifies that a person’s newly arrived resident’s waiting period for austudy payment begins on the day they first become an Australian resident. This also further clarifies the removal of the historical saving provision and means that the current newly arrived resident’s waiting period applies to all people, regardless of when they first entered Australia.

Item 29 omits the words “on or after 1 January 1993” at paragraph 623A(1)(a). Current paragraph 623A(1)(a) provides that a person is only subject to the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks if they entered Australia on or after 1 January 1993. By omitting these words, new paragraph 623A(1)(a) essentially removes this historical saving provision and provides that a person is subject to the current newly arrived resident’s waiting period from when they enter Australia. This change means any person who applies for newstart allowance on or after the commencement date will be subject to the current newly arrived resident’s waiting period regardless of when they first entered Australia. The person would still be able to use periods of past residence in Australia as an Australian resident towards the 104 week waiting period. This change is expected to affect very few people.

Item 30 repeals the note following subsection 623A(2) and substitutes a new note. This new note clarifies that paragraph 7(6AA)(f) is the only relevant qualifying residence exemption for newstart allowance.

Item 31 repeals subsections 623A(3), (5) and (6). This removes various savings provisions that provide the newly arrived resident’s waiting period at subsection 623A(1) does not apply. This change ensures that the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks applies to those who have yet to make a claim for newstart allowance.

Item 32 inserts new subsections 623A(8) and (9)

New subsection 623A(8) reflects the transfer of the remaining relevant exemptions from the newly arrived resident’s waiting period in section 3 of the Newly Arrived Resident’s Waiting Period Act. New paragraph 623A(8)(a) provides that the newly arrived resident’s waiting period at subsection 623A(1) does not apply to a person if they are a refugee or former refugee at the time the person makes a claim for newstart allowance. New paragraph 623A(8)(b) provides that the newly arrived resident’s waiting period does not apply to a person who is a family member of another person at the time the other person became a refugee and is also wither still a family member of that other person at the time the person makes a claim for newstart allowance or if that other person has died, the person was a family member of that other person immediately before that other person died. Finally, new paragraph 623A(8)(c) provides the newly arrived resident’s waiting period does not apply to a person who is an Australian citizen at the time the person makes a claim newstart allowance. 

New subsection 623A(9) provides references to the definitions of ‘family member’, ‘former refugee’ and ‘refugee’. These terms are referred to in new subsection 623A(8).

Item 33 repeals subsection 623B(2). This removes a previous more beneficial version of the newly arrived resident’s waiting period and ensures that the current waiting period of being an Australian resident and in Australia for a period of, or periods totalling, 104 weeks applies to all new claims of newstart allowance.

Item 34 omits the words “If subsection (2) does not apply, the” and substitutes the word “The”. This is consequential amendment pursuant to subsection 623B(2) being repealed in item 33 above.

Item 35 repeals the note that follows subsection 623B(2) that refers to a savings provision at Clause 121 of Schedule 1A to this Act that continues the application of previous rules regarding newly arrived resident’s waiting periods. This provision is repealed in item 67 and is no longer applicable. For all new claims for newstart allowance on or after the commencement date, the current newly arrived resident’s waiting period of being an Australian resident and in Australia for a period of, or periods totalling, 104 weeks will apply. 

Item 36 omits the words “on or after 1 January 1993” at paragraph 696B(1)(a). Current paragraph 696B(1)(a) provides that a person is only subject to the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks if they entered Australia on or after 1 January 1993. By omitting these words, new paragraph 696B(1)(a) essentially removes this historical saving provision and provides that a person is subject to the current newly arrived resident’s waiting period from when they enter Australia. This change means any person who applies for sickness allowance on or after the commencement date will be subject to the current newly arrived resident’s waiting period regardless of when they first enter Australia. The person would still be able to use periods of past residence in Australia as an Australian resident towards the 104 week waiting period. This change is expected to affect very few people.

Item 37 repeals the note following subsection 696B(2) and substitutes a new note. This new note clarifies that paragraph 7(6AA)(f) is the only relevant qualifying residence exemption for sickness allowance.

Item 38 repeals subsections 696B(3), (5) and (6) and substitutes new subsections 696B(3) and (4). The repeal of current subsections 696B(3), (5) and (6) remove various savings provisions that provide the newly arrived resident’s waiting period at subsection 696B(1) does not apply. This change ensures that the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks applies to those who have yet to make a claim for sickness allowance.

New subsection 696B(3) reflects the transfer of the remaining relevant exemptions from the newly arrived resident’s waiting period in section 3 of the Newly Arrived Resident’s Waiting Period Act. New paragraph 696B(3)(a) provides that the newly arrived resident’s waiting period at subsection 696B(1) does not apply to a person if they are a refugee or former refugee at the time the person makes a claim for sickness allowance. New paragraph 696B(3)(b) provides that the newly arrived resident’s waiting period does not apply to a person who is a family member of another person at the time the other person became a refugee and is also either still a family member of that other person at the time the person makes a claim for sickness allowance or if that other person has died, the person was a family member of that other person immediately before that other person died. Finally, new paragraph 696B(3)(c) provides the newly arrived resident’s waiting period does not apply to a person who is an Australian citizen at the time the person makes a claim sickness allowance. 

New subsection 696B(4) provides references to the definitions of ‘family member’, ‘former refugee’ and ‘refugee’. These terms are referred to in new subsection 696B(3).

Item 39 repeals subsection 696C(2). This removes a previous more beneficial version of the newly arrived resident’s waiting period and ensures that the current waiting period of being an Australian resident and in Australia for a period of, or periods totalling, 104 weeks applies to all new claims of sickness allowance.

Item 40 omits the words “If subsection (2) does not apply, the” and substitutes the word “The”. This is consequential amendment pursuant to subsection 696C(2) being repealed in item 39 above.

Item 41 repeals the note that follows subsection 696C(2) that refers to a savings provision at Clause 121 of Schedule 1A to this Act that continues the application of previous rules regarding newly arrived resident’s waiting periods. This provision is repealed in item 67 and is no longer applicable. For all new claims for sickness allowance on or after commencement date, the current newly arrived resident’s waiting period of being an Australian resident and in Australia for a period of, or periods totalling, 104 weeks will apply. 

Item 42 adds the words “after the person first entered Australia” at the end of subsection 739A(7). This clarifies that a person will not be subject to a newly arrived resident’s waiting period under subsections 739A(1) or (2) if they suffer a substantial change of circumstances beyond their control after the person first arrived in Australia. This means that if a person suffers a substantial change of circumstances before they come to Australia, they will not be able to obtain the benefit of subsection 739A(7) and be exempt from a newly arrived resident’s waiting period.

Item 43 repeals subsection 739A(8) and substitutes new subsections 739A(8) and (9).

Current subsection 739A(8) provides that the exemption for family members of Australian citizens and family members of long term permanent residents as found at paragraphs 3(1)(e) and (g) of the Newly Arrived Resident’s Waiting Period Act do not apply in certain circumstances. As this entire section is being repealed at item 82 , and these exemptions are being permanently removed, current subsection 739A(8) is no longer necessary.

New subsection 739A(8) reflects the transfer of the remaining relevant exemptions from the newly arrived resident’s waiting period in section 3 of the Newly Arrived Resident’s Waiting Period Act. New paragraph 739A(8)(a) provides that the newly arrived resident’s waiting period at subsection 739A(1) or (2) does not apply to  a person if they are a refugee or former refugee at the time the person makes a claim for special benefit. New paragraph 739A(8)(b) provides that the newly arrived resident’s waiting period does not apply to a person who is a family member of another person at the time the other person became a refugee and is also either still a family member of that other person at the time the person makes a claim for special benefit or if that other person has died, the person was a family member of that other person immediately before that other person died. Finally, new paragraph 739A(8)(c) provides the newly arrived resident’s waiting period does not apply to a person who is an Australian citizen at the time the person makes a claim special benefit. 

New subsection 739A(9) provides references to the definitions of ‘family member’, ‘former refugee’ and ‘refugee’. These terms are referred to in new subsection 739A(8).

Item 44 omits the words “on or after 1 January 1993” at paragraph 771HNA(1)(a). Current paragraph 771HNA(1)(a) provides that a person is only subject to the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks if they entered Australia on or after 1 January 1993. By omitting these words, new paragraph 771HNA(1)(a) essentially removes this historical saving provision and provides that a person is subject to the current newly arrived resident’s waiting period from when they enter Australia. This change means any person who applies for partner allowance on or after the commencement date will be subject to the current newly arrived resident’s waiting period regardless of when they first entered Australia. The person would still be able to use periods of past residence in Australia as an Australian resident towards the 104 week waiting period. This change is expected to affect very few people.

Item 45 repeals the note following subsection 771HNA(2) and substitutes a new note. This new note clarifies that paragraph 7(6AA)(f) is the only relevant qualifying residence exemption for partner allowance.

Item 46 repeals subsections 771HNA(4) and (5) and substitutes a new subsection 771HNA (3) and (4).

The repeal of current subsections 771HNA(4) and (5) remove various savings provisions that provide the newly arrived resident’s waiting period at subsection 771HNA(1) does not apply. This change ensures that the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks applies to those who have yet to make a claim for partner allowance.

New subsection 771HNA(4) reflects the transfer of the remaining relevant exemptions from the newly arrived resident’s waiting period in section 3 of the Newly Arrived Resident’s Waiting Period Act. New paragraph 771HNA(4)(a) provides that the newly arrived resident’s waiting period at subsection 771HNA (1) does not apply to a person if they are a refugee or former refugee at the time the person makes a claim for partner allowance. New paragraph 771HNA(4)(b) provides that the newly arrived resident’s waiting period does not apply to a person who is a family member of another person at the time the other person became a refugee and is also either still a family member of that other person at the time the person makes a claim for partner allowance or if that other person has died, the person was a family member of that other person immediately before that other person died. Finally, new paragraph 771HNA(4)(c) provides the newly arrived resident’s waiting period does not apply to a person who is an Australian citizen at the time the person makes a claim partner allowance.

New subsection 771HNA(5) provides references to the definitions of ‘family member’, ‘former refugee’ and ‘refugee’. These terms are referred to in new subsection 771HNA(4).

Item 47 repeals the note that follows subsection 771HNA(3) that refers to a savings provision at Clause 121 of Schedule 1A to this Act that continues the application of previous rules regarding newly arrived resident’s waiting periods. This provision is repealed in item 67 and is no longer applicable. For all new claims for partner allowance on or after commencement date, the current newly arrived resident’s waiting period of being an Australian resident and in Australia for a period of, or periods totalling, 104 weeks will apply. 

Item 48 omits the words “subsections (2), (3) and (4), a person who, on or after the commencement of this subsection” and substitutes “this section, a person who” at subsection 1039AA(1). Current subsection 1039AA(1) provides that a person is only subject to the current newly arrived resident’s waiting period of being an Australian resident in the commencement of this subsection. By omitting these words, new subsection 1039AA essentially removes this historical saving provision and provides that a person is subject to the current newly arrived resident’s waiting period from when they enter Australia. This change means any person who applies for mobility allowance on or after the commencement date will be subject to the current newly arrived resident’s waiting period regardless of when they first entered Australia. The person would still be able to use periods of past residence in Australia as an Australian resident towards the 104 week waiting period. This change is expected to affect very few people

Item 49 repeals the note following subsection 1039AA(2) and substitutes a new note. This new note clarifies that paragraph 7(6AA)(f) is the only relevant qualifying residence exemption for mobility allowance.

Item 50 repeals subsection 1039AA(3). This a saving provision that provides the current newly arrived resident’s waiting period at subsection 1039AA(1) does not apply to a person who has already served a newly arrived resident’s waiting period. Repealing this subsection ensures that the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks applies to those who have yet to make a claim for mobility allowance.

Item 51 repeals subsection 1039AA(5) and substitutes new subsections 1039AA(5) and (6).

Current subsection 1039AA(5) provides that the current newly arrived resident’s waiting period at subsection 1039AA(1) does not apply to a person if they are a New Zealand citizen and were an Australian resident on 1 February 2000. Repealing this subsection ensures that the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks applies to those who have yet to make a claim for mobility allowance.

New subsection 1039AA(5) reflects the transfer of the remaining relevant exemptions from the newly arrived resident’s waiting period in section 3 of the Newly Arrived Resident’s Waiting Period Act. New paragraph 1039AA(5)(a) provides that the newly arrived resident’s waiting period at subsection 1039AA(1) does not apply to a person if they are a refugee or former refugee at the time the person makes a claim for mobility allowance. New paragraph 1039AA(5)(b) provides that the newly arrived resident’s waiting period does not apply to a person who is a family member of another person at the time the other person became a refugee and is also either still a family member of that other person at the time the person makes a claim for mobility allowance or if that other person has died, the person was a family member of that other person immediately before that other person died. Finally, new paragraph 1039AA(5)(c) provides the newly arrived resident’s waiting period does not apply to a person who is an Australian citizen at the time the person makes a claim mobility allowance. 

New subsection 1039AA(6) provides references to the definitions of ‘family member’, ‘former refugee’ and ‘refugee’. These terms are referred to in new subsection 1039AA(5).

Item 52 omits the words “on or after 4 March 1997” at paragraph 1061PU(1)(a). Current paragraph 1061PU(1)(a) provides that a person is only subject to the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks if they entered Australia on or after 4 March 1997. By omitting these words, new paragraph 1061PU(1)(a) essentially removes this historical saving provision and provides that a person is subject to the current newly arrived resident’s waiting period from when they enter Australia. This change means any person who applies for pensioner education supplement on or after the commencement date will be subject to the current newly arrived resident’s waiting period regardless of when they first entered Australia. The person would still be able to use periods of past residence in Australia as an Australian resident towards the 104 week waiting period. This change is expected to affect very few people.

Item 53 repeals the note following subsection 1061PU(2) and substitutes a new note. The newly arrived resident’s waiting period in relation to pensioner education supplement at subsection 1061PU(1) does not apply to persons who have a qualifying residence exemption for austudy payment. This new note clarifies that paragraph 7(6AA)(f) is the only relevant qualifying residence exemption for austudy payment.

Item 54 repeals subsections 1061PU(3) and (4) and substitutes new subsections 1061PU(3) and (4).

The repeal of current subsections 1061PU(3) and (4) remove various savings provisions that provide the newly arrived resident’s waiting period at subsection 1061PU(1) does not apply. This change ensures that the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks applies to those who have yet to make a claim for pensioner education supplement.

New subsection 1061PU(3) reflects the transfer of the remaining relevant exemptions from the newly arrived resident’s waiting period in section 3 of the Newly Arrived Resident’s Waiting Period Act. New paragraph 1061PU(3)(a) provides that the newly arrived resident’s waiting period at subsection 1061PU(1) does not apply to a person if they are a refugee or former refugee at the time the person makes a claim for pensioner education supplement. New paragraph 1061PU(3)(b) provides that the newly arrived resident’s waiting period does not apply to a person who is a family member of another person at the time the other person became a refugee and is also either still a family member of that person at the time the person makes a claim for pensioner education supplement or if that other person has died, the person was a family member of that other person immediately before that other person died. Finally, new paragraph 1061PU(3)(c) provides the newly arrived resident’s waiting period does not apply to a person who is an Australian citizen at the time the person makes a claim pensioner education supplement.

New subsection 1061PU(4) provides references to the definitions of ‘family member’, ‘former refugee’ and ‘refugee’. These terms are referred to in new subsection 1061PU(3).

Item 55 omits the words “on which the person first enters Australia” and substitutes the words “the person first became an Australian resident” in paragraph 1061PV(a). This clarifies that a person can only begin serving their newly arrived resident’s waiting period on the day which they are an Australian resident in Australia as opposed to the day on which they first enter Australia.

Item 56 omits the words “subsections (2), (3) and (4)” and substitutes “this section” at subsection 1061ZH(1). This ensures that the newly arrived resident’s waiting period at subsection 1061ZH(1) is subject to the entire section as opposed to specific subsections.

Item 57 omits the words “on or after 1 February 2000” at paragraph 1061ZH(1)(a). Current paragraph 1061ZH(1)(a) provides that a person is only subject to the current newly arrived resident’s waiting period of being an Australian resident or special category visa holder residing in Australia, and in Australia for a period of, or periods totalling 104 weeks if they entered Australia on or after 1 February 2000. By omitting these words, new paragraph 1061ZH(1)(a) essentially removes this historical saving provision and provides that a person is subject to the current newly arrived resident’s waiting period from when they enter Australia. This change means any person who applies for a seniors health card on or after the commencement date will be subject to the current newly arrived resident’s waiting period regardless of when they first entered Australia. The person would still be able to use periods of past residence in Australia as an Australian resident or a special category visa holder residing in Australia towards the 104 week waiting period. This change is expected to affect very few people.

Item 58 adds a note following subsection 1061ZH(2). This note clarifies that paragraph 7(6AA)(f) is the only relevant qualifying residence exemption for seniors health cards.

Item 59 repeals subsections 1061ZH(3), (4) and (5) and substitutes new subsections 1061ZH(3) and (4).

The repeal of current subsections 1061ZH(3), (4) and (5) remove various savings provisions that provide the newly arrived resident’s waiting period at subsection 1061ZH(1) does not apply. This change ensures that the current newly arrived resident’s waiting period of being an Australian resident or a special category visa holder residing in Australia, and in Australia for a period of, or periods totalling, 104 weeks applies to those who have yet to make a claim for seniors health card.

New subsection 1061ZH(3) reflects the transfer of the remaining relevant exemptions from the newly arrived resident’s waiting period in section 3 of the Newly Arrived Resident’s Waiting Period Act. New paragraph 1061ZH(3)(a) provides that the newly arrived resident’s waiting period at subsection 1061ZH (1) does not apply to a person if they are a refugee or former refugee at the time the person makes a claim for a seniors health card. New paragraph 1061ZH(3)(b) provides that the newly arrived resident’s waiting period does not apply to a person who is a family member of another person at the time the other person became a refugee and is also either still a family member of that other person at the time the person makes a claim for a seniors health card or if that other person has died, the person was a family member of that other person immediately before that other person died. Finally, new paragraph 1061ZH(3)(c) provides the newly arrived resident’s waiting period does not apply to a person who is an Australian citizen at the time the person makes a claim for a seniors health card. 

New subsection 1061ZH(4) provides references to the definitions of ‘family member’, ‘former refugee’ and ‘refugee’. These terms are referred to in new subsection 1061ZH(3).

Item 60 omits the words “subsection (2)” and substitutes the words “this section” in subsection 1061ZQ(1). This merely provides that the newly arrived resident’s waiting period at subsection 1061ZQ(1) is subject to the entire section as opposed to only subsection 1061ZQ(2).

Item 61 omits the words “on or after 1 February 2000” at subsection 1061ZQ(1). Current subsection 1061ZQ(1) provides that a person is only subject to the current newly arrived resident’s waiting period of being an Australian resident or a special category visa holder residing in Australia, and in Australia for a period of, or periods totalling 104 weeks if they entered Australia on or after 1 February 2000. By omitting these words, new subsection 1061ZQ(1) essentially removes this historical saving provision and provides that a person is subject to the current newly arrived resident’s waiting period from when they first become an Australian resident or special category visa holder residing in Australia. This change means any person who applies for a health care card on or after the commencement date will be subject to the current newly arrived resident’s waiting period regardless of when they first entered Australia. The person would still be able to use periods of past residence in Australia as an Australian resident or special category visa holder residing in Australia towards the 104 week waiting period. This change is expected to affect very few people.

Item 62 repeals paragraph 1061ZQ(2)(b). This is a saving provision that provides the current newly arrived resident’s waiting period at subsection 1061ZQ(1) does not apply to a person who has already served a newly arrived resident’s waiting period. Repealing this subsection ensures that the current newly arrived resident’s waiting period of being an Australian resident or a special category visa holder residing in Australia and in Australia for a period of, or periods totalling, 104 weeks applies to those who have yet to make a claim for health care cards.

Item 63 adds a note following subsection 1061ZQ(2). This note clarifies that paragraph 7(6AA)(f) the only relevant qualifying residence exemption for seniors health cards.

Item 64 adds subsections 1061ZQ(3) and (4).

New subsection 1061ZQ(3) reflects the transfer of the remaining relevant exemptions from the newly arrived resident’s waiting period in section 3 of the Newly Arrived Resident’s Waiting Period Act. New paragraph 1061ZQ(3)(a) provides that the newly arrived resident’s waiting period at subsection 1061ZQ(1) does not apply to  a person if they are a refugee or former refugee at the time the person makes a claim for a health care card . New paragraph 1061ZQ(3)(b) provides that the newly arrived resident’s waiting period does not apply to a person who is a family member of another person at the time the other person became a refugee and is also either still a family member of that other person at the time the person makes a claim for a health care card or if that other person has died, the person was a family member of that other person immediately before that other person died. Finally, new paragraph 1061ZQ(3)(c) provides the newly arrived resident’s waiting period does not apply to a person who is an Australian citizen at the time the person makes a claim for a health care card.

New subsection 1061ZQ(4) provides references to the definitions of ‘family member’, ‘former refugee’ and ‘refugee’. These terms are referred to in new subsection 1061ZQ(3).

Item 65 omits the word “if” and substitutes the words “(1) Subject to subsection (2), if” at section 1061ZR. This change is a consequential amendment based on item 61 below and effectively makes this provision a new subsection 1061ZR(1).

Item 66 inserts subsection 1061ZR(2) at the end of section 1061ZR. New subsection 1061ZR(2) essentially provides that a person can begin serving their newly arrived waiting period for a health care card on the day they apply for visa if the visa is in a class determined by the Minister for the purposes of paragraph 739A(3)(b). This means a person can start serving their 104 week newly arrived resident’s waiting period before they are an Australian resident or special category visa holder residing in Australia as required by new subsection 1061ZR(1).

Item 67 repeals clause 121 of Schedule 1A. This clause is a savings provision that provides that if a person was subject to newly arrived resident’s waiting period immediately before the commencement of the Further 1998 Budget Measures Legislation Amendment (Social Security) Act 1999, the Social Security Act continues to apply to the person in relation to the waiting period as if the amendments had not been made. Repealing this clause removes a historic savings provision. This change ensures that the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks applies to those who have yet to make a claim.

Application Provisions

Item 68 is an application provision in relation to qualifying residence exemption. This provision provides that the changes made to section 7 of the Social Security Act in this Schedule apply to all claims made on or after commencement.

Item 69 is an application provision in relation to carer payment.

This provides that the changes made to paragraph 201AA(1)(a) apply to all entries to Australia regardless as to whether they occur before, on or after commencement of this Schedule.

New subsections 201AA(5) and (5A) which includes the exemption for people specified in a class of visas by legislative instrument and the relevant exemptions as moved from the Newly Arrived Resident’s Waiting Period Act apply to all carer payment claims made on or after the commencement of this Schedule.

Current subsection 201AA(5) continues to apply to all claims for carer payment made before the commencement of this Schedule.

A determination that is in forced under current paragraph 201AA(5)(d) immediately before the commencement of this Schedule continues to have effect after commencement as if it were a determination under new subsection 201AA(5B).

Item 70 is an application provision in relation to widow allowance. This provides that the amendments to section 408BA made by this Schedule apply in relation to claims for widow allowance made on or after the commencement of this Schedule.

Item 71 is an application provision in relation to parenting payment. This provides that the amendments to section 500 made by this Schedule apply in relation to claims for parenting payment made on or after the commencement of this Schedule.

Item 72 is an application provision in relation to youth allowance.

This provides that the changes made to paragraph 549D(1)(a) apply to all entries to Australia regardless as to whether they occur before, on or after commencement of this Schedule.

Current subsections 549D(3), (4) and (5) continue to apply to all claims for youth allowance made before the commencement of this Schedule.

New subsections 549D (7) and (8) which contain the remaining relevant exemptions as moved from the Newly Arrived Resident’s Waiting Period Act apply to all youth allowance claims made on or after the commencement of this Schedule.

The amendment to paragraph 549E(a) also applies in relation to all claims for youth allowance made on or after commencement of this Schedule.

Item 73 is an application provision in relation to austudy payment.

This provides that the changes made to paragraph 575D(1)(a) apply to all entries to Australia regardless as to whether they occur before, on or after commencement of this Schedule.

Current subsections 575D(3) and (4) continue to apply to all claims for austudy payment made before the commencement of this Schedule

New subsections 575D (3) and (4) which contain the remaining relevant exemptions as moved from the Newly Arrived Resident’s Waiting Period Act apply to all austudy payments claims made on or after the commencement of this Schedule.

The amendment to paragraph 575E(a) also applies in relation to all claims for austudy payment made on or after commencement of this Schedule.

Item 74 is an application provision in relation to newstart allowance.

This provides that the changes made to paragraph 623A(1)(a) apply to all entries to Australia regardless as to whether they occur before, on or after commencement of this Schedule.

Current subsections 623A(3) and (6) and 623B(2) continue to apply to all claims for newstart allowance made before the commencement of this Schedule.

New subsections 623A (8) and (9) which contain the remaining relevant exemptions as moved from the Newly Arrived Resident’s Waiting Period Act apply to all newstart allowance claims made on or after the commencement of this Schedule.

Item 75 is an application provision in relation to sickness allowance.

This provides that the changes made to paragraph 696B(1)(a) apply to all entries to Australia regardless as to whether they occur before, on or after commencement of this Schedule.

New subsections 696B (3) and (4) which contain the remaining relevant exemptions as moved from the Newly Arrived Resident’s Waiting Period Act apply to all sickness allowance claims made on or after the commencement of this Schedule.

Current subsections 696B(3), (5) and (6) and 696C(2) continue to apply to all claims for sickness allowance made before the commencement of this Schedule.

Item 76 is an application provision in relation to special benefit. All the amendments made in relation special benefit at section 739A apply in relation to claims for special benefit made on or after the commencement of this Schedule.

Item 77 is an application provision in relation to partner allowance.

This provides that the changes made to paragraph 771HNA(1)(a) apply to all entries to Australia regardless as to whether they occur before, on or after commencement of this Schedule.

New subsections 771HNA (3) and (4) which contain the remaining relevant exemptions as moved from the Newly Arrived Resident’s Waiting Period Act apply to all partner allowance claims made on or after the commencement of this Schedule.

Current subsections 771HNA(4) and (5) continue to apply to all claims for partner allowance made before the commencement of this Schedule.

Item 78 is an application provision in relation to mobility allowance.

This provides that the changes made to subsection 1039AA(1) apply to all entries to Australia regardless as to whether they occur before, on or after commencement of this Schedule.

Current subsections 1039AA(3) and (5) continue to apply to all claims for mobility allowance made before the commencement of this Schedule.

New subsections 1039AA(5) and (6) which contain the remaining relevant exemptions as moved from the Newly Arrived Resident’s Waiting Period Act apply to all mobility allowance claims made on or after the commencement of this Schedule.

Item 79 is an application provision in relation to pensioner education supplement.

This provides that the changes made to paragraph 1061PU(1)(a) apply to all entries to Australia regardless as to whether they occur before, on or after commencement of this Schedule.

New subsections 1061PU(3) and (4) which contain the remaining relevant exemptions as moved from the Newly Arrived Resident’s Waiting Period Act apply to all pensioner education supplement claims made on or after the commencement of this Schedule.

Current subsections 1061PU (3) and (4) continue to apply to all claims for pensioner education supplement made before the commencement of this Schedule.

The amendment to paragraph 1061PV(a) also applies in relation to all claims for pensioner education supplement made on or after commencement of this Schedule.

Item 80 is an application provision in relation to seniors health cards.

This provides that the changes made to subsection 1061ZH(1) apply to all entries to Australia regardless as to whether they occur before, on or after commencement of this Schedule.

New subsections 1061ZH(3) and (4) which contain the remaining relevant exemptions as moved from the Newly Arrived Resident’s Waiting Period Act apply to all claims for seniors health card made on or after the commencement of this Schedule.

Current subsections 1061ZH(3), (4) and (5) continue to apply to all claims for seniors health cards made before the commencement of this Schedule.

 Item 81 is an application provision in relation to health care cards.

This provides that the changes made to subsection 1061ZQ(1) apply to all entries to Australia regardless as to whether they occur before, on or after commencement of this Schedule.

Current paragraph 1061ZQ(2)(b) continues to apply to all claims for health care cards made before the commencement of this Schedule.

New subsections 1061ZQ(3) and (4) which contain the remaining relevant exemptions as moved from the Newly Arrived Resident’s Waiting Period Act apply to all health care card claims made on or after the commencement of this Schedule.

The changes made to 1061ZR apply to all health care card claims made on or after the commencement of this Schedule.

Amendments to the Newly Arrived Resident’s Waiting Period Act

Item 82 repeals section 3.

This change will repeal all the exemptions from the newly arrived resident’s waiting periods contained in this section with the relevant remaining exemptions to be reproduced in the Social Security Act.

The ongoing effect of this section has led to ongoing confusion and meant that a person would have to look across multiple Acts in order to establish whether a newly arrived resident’s waiting period applies. In order to prevent this confusion, the exemptions that remain from this section for refugees, former refugees, family members of refugees and former refugees and Australian citizens are reproduced in relation to the relevant payments that have newly arrived resident’s waiting periods in the items above. These encompass paragraphs 3(1)(a), (b), (c) and (d) of the Newly Arrived Resident’s Waiting Period Act. The exact requirements to satisfy these exemptions have been clarified in their reproduction to the Social Security Act.

The exemption from the newly arrived resident’s waiting period for family members of Australian citizens and for family members of persons who have been Australian residents for a continuous period of two years will be removed permanently and will not be reproduced in the Social Security Act. These exemptions are currently found at paragraphs 3(1)(e) and (g) of the Newly Arrived Resident’s Waiting Period Act.

This change will align the Social Security waiting period for working age payments for all newly arrived migrants to Australia, apart from refugees, former refugees and their family members. This change would reinforce the Australian Government’s position that all newly arrived migrants should be self-sufficient or seek support from family members and not expect to be supported by the Australian taxpayer immediately on arrival in Australia. The newly arrived resident’s waiting period aims to ensure that new migrants to Australia take steps prior to moving to Australia to provide for their own financial support during their initial settlement period in Australia. It is reasonable to expect that migrants, particularly those with family members living in Australia, should be financially secure or a least put arrangements in place to support themselves prior to moving to Australia. 

The exemption for a person who has been an Australian resident for a continuous period of two years as found at paragraph 3(1)(f) of the Newly Arrived Resident’s Waiting Period Act will not be reproduced in the Social Security Act, as this exemption relates to a previous version of the newly arrived resident’s waiting period. Instead the current newly arrived resident’s waiting period will apply and mean the person must be an Australian resident and in Australia for a period of, or periods totalling, 104 weeks.

Saving Provision

Item 83 is a saving provision for the amendment made to the Newly Arrived Resident’s Waiting Period Act. It provides that the Newly Arrived Resident’s Waiting Period Act, as in effect immediately before the commencement of this Schedule, continues to apply on and after commencement for all claims for social security payments, seniors health care cards and health care cards that were made before that commencement. This means if a person makes a claim for a social security payment, seniors health care card or health care card before the commencement of this Schedule, section 3 of the Newly Arrived Resident’s Waiting Period Act continues to apply and they can obtain the benefit of that section.

Part 2 - Farm household support amendments

Amendments to the Farm Household Support Act

Item 84 inserts the definitions of ‘eligible family member’, ‘former refugee’ and ‘refugee’ in subsection 5(1) of the Farm Household Support Act. These terms are referred to in new paragraphs 42(2)(i) and (j).

Item 85  repeals paragraphs 42(a), (b), (d), (e), (f) and (g). This removes various savings provisions that provide for a person not to be subject to the newly arrived resident’s waiting period at subsection 42(1). This change ensures that the current newly arrived resident’s waiting period of being an Australian resident in Australia for a period of, or periods totalling, 104 weeks applies to those who have yet to make a claim for farm household allowance.

Item 86 inserts new paragraphs 42(2)(i), (j) and (k). These paragraphs reflect the transfer of the remaining relevant exemptions from the newly arrived resident’s waiting period in section 3 of the Newly Arrived Resident’s Waiting Period Act. New paragraph 42(2)(i) provides that the newly arrived resident’s waiting period at subsection 42(1) does not apply to a person if they are a refugee or former refugee at the time the person makes a claim for farm household allowance. New paragraph 42(2)(j) provides that the newly arrived resident’s waiting period does not apply to a person who is a eligible family member of another person at the time the other person became or refugee and is also either, an eligible family member of that other person at the time they make a claim for farm household allowance or if that other person has died, the person was an eligible family member of that other person immediately before that other person died. Finally, new paragraph 42(2)(k) provides that the newly arrived resident’s waiting period does not apply to a person who is an Australian citizen at the time the person makes a claim for farm household allowance.

Item 87 and 88 omit the word “(1)” at current subsection 43(1) and the words “(subject to subsection (2))” at paragraph 43(1)(b). These are consequential amendments based on the repeal of current subsection 43(2) in item 89 below.

Item 89 repeals subsection 43(2). This removes a previous more beneficial version of the newly arrived resident’s waiting period and ensures that the current waiting period of being an Australian resident and in Australia for a period of, or periods totalling, 104 weeks applies to all new claims of farm household allowance.

Item 90 is the application provision for the amendments made to the Farm Household Support Act. This provides that the amendments apply in relation to all claims for farm household assistance made on or after the commencement of this Schedule. This means that current sections 42 and 43 apply to all claims made for farm household allowance before commencement of this Schedule.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Newly arrived resident’s waiting period

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview

This Schedule will align the newly arrived residents waiting period that is applied to working-age social security payments (e.g. Newstart Allowance, Youth Allowance), concession cards and farm household allowance by removing the exemption provided to family members of Australian citizens or permanent resident visa holders.

This measure ensures all newly arrived migrants will be required to serve the same 104-week newly arrived residents waiting period.

Human rights implications

This Schedule has considered the human rights implications particularly with reference to the right to social security contained within Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is concluded that the Schedule does not place limitations on human rights.

This measure aligns the 104-week newly arrived resident’s waiting period for income support payments for all migrants (except for permanent humanitarian entrants) by removing an exemption which allows some people to qualify for income support payments earlier than others.

Permanent Humanitarian entrants will continue to be exempt from all social security payment waiting periods.

Right to Social Security:

The measure engages the right to social security contained in Article 9 of the ICESCR.

The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.

Access to Special Benefit will still be available for a newly arrived resident in financial hardship who has suffered a substantial change in their circumstances, beyond their control, after arrival. There remains no waiting period for family assistance payments for families with children, such as Family Tax Benefit.

Conclusion

These amendments are compatible with human rights. To the extent that they may limit a person’s access to social security, the limitation is reasonable and proportionate.

 



Chapter 11      

Student start-up scholarships

Outline of chapter

Schedule 11 to the « Bill » repeals the student start-up scholarship payment, from 1 July 2017, or the first 1 January or 1 July after Royal Assent after this date. The earliest this Schedule can commence is 1 July 2017.

Background

On 1 January 2016, Schedule 11 to the Labor 2013-14 Budget Savings (Measures No. 2) Act 2015 (Budget Savings Measures No. 2 Act) amended the Social Security Act and Student Assistance Act to provide for the student start-up loan and ABSTUDY student start-up loan. These loans are income contingent and repayable under similar arrangements to the Higher Education Loan Programme. The qualification provisions for the student start-up loan and ABSTUDY student start-up loan are similar to the qualification provisions for the student start-up scholarship currently contained in Division 1 of Part 2.11B of the Social Security Act.

The Budget Savings Measures No. 2 Act also amended the qualification provisions for the student start-up scholarship payment. As a result of those amendments, a person is qualified for a student start-up scholarship payment only if:

•        the person received a student start-up scholarship payment, ABSTUDY student start-up scholarship payment or Commonwealth Education Costs Scholarship before 1 January 2016; and

•        the person has been receiving youth allowance on the basis of undertaking full-time study, austudy payment or payments under the ABSTUDY Scheme known as Living Allowance for a continuous period since receiving the scholarship.

The effect of these amendments is that the student start-up scholarship payment has been closed to new applicants since 1 January 2016 and replaced by the student start-up loan. This Schedule would close the student start-up scholarship for all existing recipients of the scholarship.

The student start-up scholarship was introduced in 2010 to assist students with the upfront costs of study, including text books and course equipment. Due to the nature of the current scholarship qualification provisions, it is expected that many current recipients would no longer be eligible for the scholarship at the commencement of this Schedule as they would have completed their study and no longer be receiving student payments. It is expected that approximately 80,000 existing student start-up scholarship recipients will be affected by this measure as at 1 July 2017. The number of existing recipients affected is expected to decrease significantly over a short period of time, as students complete their courses and no longer require the support of student payments.

Current recipients of the student start-up scholarship payment may be qualified for a student start-up loan or ABSTUDY start-up loan after the commencement of this Schedule. The amount of the loan is the same as the amount of the scholarship and it is paid at the same time as the scholarship.

The measure is intended to be implemented from 1 July 2017.

Explanation of the changes

Amendments to the Social Security Act

Items 1 and 2 repeal the definition of scholarship-entitled person . These items are consequential to the amendments made by items 5 and 6 of this Schedule. Following those amendments, there will no longer be a reference to ‘scholarship-entitled person’.

Item 3 repeals Division 1 of Part 2.11B. This Division sets out the substantive provisions for student start-up scholarship payments and contains sections 592F, 592G and 592H. Current section 592F sets out qualification for student start-up scholarship payment. Among other things, a person is qualified for a student start-up scholarship payment only if:

•        the person received a student start-up scholarship payment, ABSTUDY student start-up scholarship payment or Commonwealth Education Costs Scholarship before 1 January 2016; and

•        the person has been receiving youth allowance on the basis of undertaking full-time study, austudy payment or payments under the ABSTUDY Scheme known as Living Allowance for a continuous period since receiving the scholarship.

The effect of these provisions in section 592F is that the student start-up scholarship payment has been closed to new applicants since 1 January 2016. This item repeals section 592F, the effect of which is that current recipients of the student start-up scholarship payment will no longer be entitled to the scholarship after the commencement of this Schedule. Current recipients of the student start-up scholarship payment may be qualified for a student start-up loan after the commencement of this Schedule if, among other things, the person is receiving youth allowance as a full-time student or austudy payment or ABSTUDY Living Allowance and is undertaking an approved scholarship course.

Current section 592G provides for circumstances in which a person is not qualified for a student start-up scholarship payment. In broad terms, a person is not qualified for a student start-up scholarship payment if the person has qualified for the scholarship or certain other scholarships in the previous six months. That is, a person can receive only two scholarships each year. Similar rules apply to the payment of student start-up loans. This item repeals section 592G.

Current section 592H provides for the amount of a student start-up scholarship payment. The amount is currently $1,025 which is the same as the amount of the student start-up loan. This amount will be indexed on 1 January 2017. This item repeals section 592H.

Item 4 is a technical amendment that is consequential to the amendments made by items 5 and 6.

Items 5 and 6 amend section 1061ZVBC which sets out circumstances in which a person is not qualified for a student start-up loan for a qualification period.

Subparagraph 1061ZVBC(1)(a)(iii) provides that a person is not qualified for a student start-up loan for a qualification period if immediately before the person’s qualification test day, the person is a scholarship-entitled person. Subsection 1061ZVBC(2) provides that a person is a scholarship-entitled person if:

•        the person received a student start-up scholarship payment, ABSTUDY student start-up scholarship payment or Commonwealth Education Costs Scholarship before 1 January 2016; and

•        the person has been receiving youth allowance on the basis of undertaking full-time study, austudy payment or payments under the ABSTUDY Scheme known as Living Allowance for a continuous period since receiving the scholarship.

Current subparagraph 1061ZVBC(1)(a)(iii) and subsection 1061ZVBC(2) were inserted on 1 January 2016 and they ensure that a person is not qualified for a student start-up loan if the person was receiving a student start-up scholarship payment or certain other scholarships before 1 January  2016 where the person continued to receive a particular payment since the person received the scholarship. Such a person may be qualified for a student start-up scholarship payment in accordance with current section 592F.

Section 592F is repealed by item 3 of this Schedule. As a result, a person to whom current subparagraph 1061ZVBC(1)(a)(iii) and subsection 1061ZVBC(2) apply would no longer be qualified for a student start-up scholarship payment. It is therefore appropriate to repeal subparagraph 1061ZVBC(1)(a)(iii) and subsection 1061ZVBC(2) so that such a person can qualify for a student start-up loan (where all the other qualification requirements are also met).

Items 7, 8 and 9 repeal provisions that provide for the indexation of the student start-up scholarship payment. These provisions can be repealed as a result of item 3 of this Schedule closing the student start-up scholarship payment. However, the student start-up scholarship payment will be indexed on 1 January 2017 before the amendments made by this Schedule commence.

Items 10, 11 and 12 are consequential to the amendments to repeal the student start-up scholarship payment. These items remove references to the student start-up scholarship payment in provisions relating to debts. These provisions will now apply only to relocation scholarship payment.

Amendments to the Social Security Administration Act

Items 13 to 19 are consequential to the amendments to repeal the student start-up scholarship payment. These items remove references to the student start-up scholarship payment in various provisions in the Social Security (Administration) Act 1999 .

Amendments to the Student Assistance Act

Item 20 repeals the definition of scholarship-entitled person . This item is consequential to the amendments made by items 22 and 23 of this Schedule. Following those amendments, there will no longer be a reference to ‘scholarship-entitled person’.

Item 21 is a technical amendment that is consequential to the amendments made by items 22 and 23.

Items 22 and 23 amend section 7D which sets out circumstances in which a person is not qualified for an ABSTUDY student start-up loan for a qualification period. The amendments made by these items mirror the amendments made by items 5 and 6 of this Schedule but with respect of the ABSTUDY student start-up loan.

Application and savings provisions

Item 24 contains a number of application and savings provisions dealing with the repeal of student start-up scholarship provisions. Notably, in spite of the repeal of the qualification provisions for that payment, those provisions continue to apply in relation to qualification prior to repeal (which may be important to clarify during reviews about qualification occurring after repeal in relation to qualification prior to repeal). There are also rules to clarify that debts can still be raised and that claim rules and payment rules for the discontinued student start-up scholarship payment remain effective in relation to payments a person was qualified for before commencement.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Student start-up scholarships

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview

This Schedule amends the Social Security Act 1991 , Social Security (Administration) Act 1999 and the Student Assistance Act 1973 to close the student start-up scholarship from 1 July 2017 at the earliest, for recipients of student payments (youth allowance, austudy and ABSTUDY Living Allowance) who are undertaking higher education.

The student start-up scholarship was introduced in 2010 to assist student payment recipients with the upfront costs of study, such as text books and course equipment. The scholarship is currently paid twice a year to eligible recipients ($1,025 each), generally at the beginning of each semester.

As of 1 January 2016, the student start-up scholarship has only been available to student payment recipients who had received a scholarship or Commonwealth Education Costs Scholarship prior to this date and had remained continuously in receipt of a student payment since that time. The scholarship is no longer available to new student payment recipients and as such, the number of scholarship recipients has been steadily decreasing since this time.

Human rights implications

Right to education

This Schedule engages the right to education contained in article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

In particular, article 13(2)(b) states that secondary education, in all its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means and, in particular, by the progressive introduction of free education.

This Schedule does not limit the right to education. While the student start-up scholarship will no longer be available to student payment recipients undertaking higher education from 1 July 2017 at the earliest, people who would otherwise be entitled to the scholarship will be eligible for the student start-up loan.

The voluntary student start-up loan was introduced on 1 January 2016 and replaced the scholarship for new student payment recipients. It is an income contingent loan, repayable under similar arrangements to the Higher Education Loan Programme (HELP). The purpose of the scholarship and the loan is identical as both payments are designed to help students with the upfront costs of text books and equipment. Under the loans, students are eligible for the same payment amount as the scholarship ($1,025 twice per calendar year, to be indexed from 1 January 2017). In this way, students will still have access to funds to assist them with the upfront costs of study.

Income-contingent loans do not place an onerous burden on debtors, as repayments are proportional to a person’s income, meaning that those on lower incomes do not have to repay large amounts, unlike other types of loans (such as bank loans). The fact that the loans are repayable once the person reaches a particular income threshold will not limit a person’s right to education.

Furthermore, students who never reach the minimum threshold, because they do not obtain the financial benefits of their studies in higher education, will not be required to repay the loan.

Various studies have concluded that income-contingent loans are not a deterrent to study. These studies have identified no significant effects on university enrolments, including from low socio-economic students, from either the introduction of, or changes to, HELP.

Additionally, this Schedule does not affect a person’s eligibility for their primary student payment.

Right to social security

This Schedule engages the right to social security contained in article 9 of the ICESCR.

The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security system must provide a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.

The United Nations Committee on Economic, Cultural and Social Rights (the Committee) has stated that a social security scheme should be sustainable and that the conditions for benefits must be reasonable, proportionate and transparent (see General Comment No.19).

Article 4 of ICESCR provides that countries may limit the rights such as to social security in a way determined by law only in so far as this may be compatible with the nature of the rights contained within the ICESCR and solely for the purpose of promoting the general welfare in a democratic society. Such a limitation must be proportionate to the objective to be achieved.

To the extent that there is an impact on a person’s right to social security by virtue of this Schedule, the impact is limited. In practice, a person will still be entitled to the same amount of financial assistance under the loans as they would have received from a student start-up scholarship, and will only be required to repay the loans once they reach the relevant threshold level of income. This threshold is set at a level of income at which a person would no longer require financial assistance to acquire essential health care, housing, water and sanitation, foodstuffs, and education.

Additionally, the Government is committed to providing continuing support to students. The relocation scholarship, for dependent students who are required to move from or to a regional area to study and some independent students, will continue to be provided as a grant each year to all eligible students. Other student payments will also remain unaffected by the closure of the student start-up scholarship.

Taking into account the continued access to assistance with the costs of study, the amendments to the student start-up scholarship are consistent with a person’s rights to social security and to an adequate standard of living.

Conclusion

This Schedule is compatible with human rights. To the extent that it may have limited adverse impact on a person’s access to education or social security, the limitation is reasonable, proportionate to the policy objective and for legitimate reasons.



Chapter 12      

Interest charge

Outline of chapter

Schedule 12 to the « Bill » introduces a new interest charge scheme, to former recipients of social welfare payments who have outstanding debts and have failed to enter into, or have not complied with, an acceptable repayment arrangement.

The interest charge will apply to social security, family assistance (including child care), paid parental leave and student assistance debts.

The rate of the proposed interest charge (approximately nine per cent) will be based on the 90-day Bank Accepted « Bill » rate (approximately two per cent) plus an additional seven per cent, as is already applied by the Australian Taxation Office under the Taxation Administration Act.

Background

The A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act) , Paid Parental Leave Act 2010 and Social Security Act 1991 each currently provides for an interest charge scheme in relation to debts that arise under those Acts. A person may be liable to pay interest on a debt at the penalty interest rate if the person does not either pay the debt in full within a certain period specified in notices, or enter into a repayment arrangement.

The current interest charge scheme in the Family Assistance Administration Act does not apply to a person who is receiving instalments of family tax benefit. Similarly, the interest charge scheme in the Social Security Act does not apply to a person who is receiving a social security payment, a pension or allowance under the Veterans’ Entitlements Act 1986 , or compensation under the Military Rehabilitation and Compensation Act 2004 .

The interest rate is determined by the Minister in a legislative instrument. The most recent determination by the Minister set the interest rate at three per cent per year. The initial rate of 20 per cent was considered too high and resulted in a rapidly increasing debt base and financial hardship for debtors. The subsequent rate of three per cent was too low and did not provide an incentive for debtors to enter into payment arrangements, and administrative costs outweighed recovery of debts. The interest charge scheme has not been applied since 2005.

This Schedule inserts a new, consistently applied, interest charge scheme for debts that arise under the Family Assistance Administration Act, Paid Parental Leave Act, Social Security Act and Student Assistance Act. An interest charge will be applied to a debt if, by the 28 th day after receiving a relevant notice, the debt has not been paid in full or the person has not entered into a repayment arrangement. There will be exemptions for debtors who are currently in receipt of relevant payments, including, among other payments, social security payments and payments of family tax benefit by instalment.

The key purpose of the interest charge is to incentivise responsible self-management of debts and encourage debtors to repay their debts in a timely manner, where they have the financial capacity to do so.

The rate of the proposed interest charge (approximately nine per cent) will be based on the 90-day Bank Accepted « Bill » rate (approximately two per cent) plus an additional seven per cent, as is already applied by the Australian Taxation Office under the Taxation Administration Act.

The measure is intended to be implemented from 1 January 2017.

Explanation of the changes

Part 1 - Amendments

Amendments to the Family Assistance Administration Act

Item 1 inserts a new paragraph 77(1)(ea).

Subsection 77(1) currently provides that, if a debt by a person to the Commonwealth has not been wholly paid, the Secretary must give the person a notice specifying certain matters. New paragraph 77(1)(ea) provides that the notice must specify the effect of sections 78 and 78A. New sections 78 and 78A are inserted by this Schedule and they provide for an interest charge on a debt if:

•        the person who owes the debt does not have a repayment arrangement in effect; or

•        the person fails to comply with a repayment arrangement; or

•        a repayment arrangement is terminated.

Item 2 repeals subsections 77(3) and (4) and substitutes a new subsection 77(3).

Current subsection 77(3) provides that the Secretary may give a person a further notice specifying certain matters if, following a notice given under subsection 77(1), the debt has not been wholly paid and:

•        the person has failed to enter into an arrangement to pay the debt; or

•        the person has entered into an arrangement but has failed to make a payment in accordance with the arrangement.

The matters that the Secretary must specify in a further notice include the effect of the current interest charge provisions and how the interest is to be calculated. Current subsection 77(4) provides that an initial notice given under subsection 77(1) is taken to be a further notice given under subsection 77(3) if it specifies the effect of the current interest charge provisions and how the interest is to be calculated.

Repealing subsection 77(3) means that a person who owes a debt to the Commonwealth may be liable to pay an interest charge in respect of a debt if, before the end of 28 days after a notice is given, the person has not paid the debt in full and has not entered into a repayment arrangement to pay the debt. That is, a further notice does not need to be given before the person becomes liable to pay the interest charge. The notification of the effect of the interest charge provisions must be included in the first notice under the amendments made by item 1 of this Schedule, removing the need for a further notice under current subsection 77(3).

New subsection 77(3) makes it clear that the Secretary may give more than one notice under subsection 77(1) in relation to a person and a debt of the person.

Item 3 repeals sections 78 to 79A and substitutes new provisions.

Current sections 78 to 79A set out provisions in respect of interest charges. These sections are substituted to provide for a new interest charge scheme.

Section 78 - Interest charge - no repayment arrangement in effect

The purpose of new section 78 is to set out when an interest charge is payable by people who do not have a repayment arrangement in effect.

New subsection 78(1) provides that, if a person has been given a notice under subsection 77(1) and has an unpaid amount on a relevant debt and, by the end of the due day, has not entered into an arrangement for the repayment of the debt (under section 91), then the person is liable to pay, by way of penalty, an interest charge on the debt for each day in a period.

New subsection 78(2) provides that the period for which the interest charge will be applied to the debt starts at the beginning of the day after the due day for the debt. It further provides that the period will end on the earlier of either the last day on which the unpaid amount (and any interest charge on the unpaid amount) remains unpaid, or the day before the first day on which the person makes a payment under an arrangement for repayment of the debt.

Subsection 78(2) is intended to ensure that a person will be able to end the application of the interest charge by entering into, and making a payment under, an arrangement for repayment of the debt. This, in addition to entering into an arrangement before the due date, will mean that the person can entirely avoid the interest charge applying to their debt.

New subsection 78(3) provides that the interest charge on any unpaid amount is worked out by multiplying the interest charge rate for that day by the sum of the remaining unpaid amount and the interest charge from previous days. This provision ensures that the interest is compounded on a daily basis. New section 78C prescribes the calculation of the ‘interest charge rate’ for that day, and is explained below.

Section 78A - Interest charge - failure to comply with or termination of repayment arrangement

The purpose of new section 78A is to set out when an interest charge is payable by people who have failed to comply with a repayment arrangement or where a repayment arrangement has been terminated.

New subsection 78A(1) provides that, if a person has entered into a repayment arrangement under section 91 in relation to a debt and the person fails to make a payment under the arrangement, then the person is liable to pay, by way of penalty, an interest charge for each day in a period.

New subsection 78A(2) provides that the period for which the interest charge will be applied to the debt starts at the beginning of the day after the due day. It further provides that the period will end on the earliest of:

•        the last day on which the outstanding amount (and any interest charge on any of the outstanding amount) remains unpaid;

•        the day before the first day on which the person has paid all the payments that have so far become due and payable under the arrangement;

•        the day before the day the arrangement is terminated.

Subsection 78A(2) is intended to ensure that a person may end the application of the interest charge to their debt at the point where they catch up on any missed payments under the arrangement. To avoid doubt, while the interest charge will apply to the debt during the period, a person is only required to pay an amount equal to the missed payments (rather than an amount equal to the missed payments and the interest charge) to end the period of application of the interest charge. The interest charge will otherwise be payable as a debt due to the Commonwealth, as explained below.

New subsection 78A(3) prescribes the calculation of an interest charge for a day. The interest charge is calculated in the same way as in new subsection 78(3), which is explained above.

Repayment arrangement is terminated

New subsection 78A(4) provides that, if the person has entered into a repayment arrangement under section 91 in relation to a debt, and the arrangement is terminated, then the outstanding debt, and any interest charge on the outstanding debt, is due and payable on the 14 th day after the termination. If, at the end of the 14 th day, any amount remains unpaid, the person is liable to pay, by way of penalty, an interest charge for each day in a period.

New subsection 78A(5) provides that the period for which the interest charge will be applied to the debt starts at the beginning of the day after the 14 th day. It further provides that the period will end on the earlier of the last day on which the outstanding amount (and any interest charge on the outstanding amount) remains unpaid or the day before the first day after the 14 th day on which the person makes a payment under another arrangement for the repayment of the debt.

Subsection 78A(5) is intended to ensure that a person may end the application of the interest charge at the point where they enter into another arrangement for repayment of the debt.

New subsection 78A(6) prescribes the calculation of an interest charge for a day. The interest charge is calculated in the same way as in new subsection 78(3), which is explained above.

Section 78B - Other rules for interest charge

New subsection 78B(1) provides that the interest charge under new section 78 or 78A for a day is due and payable to the Commonwealth at the end of that day.

New subsection 78B(2) provides that an interest charge under new section 78 or 78A for a day is a debt due to the Commonwealth by the person.

New subsection 78B(3) clarifies that new subsection 77(1) does not apply to a debt which is also an interest charge (as provided for under new sections 78 and 78A). This means that a notice in respect of the interest charge debt is not required to be issued under new subsection 77(1). This avoids a situation where an interest charge is subject to further interest charges.

Section 78C - What is the interest charge rate?

New section 78C provides for the calculation of the interest charge rate.

New subsections 78C(1) and 78C(2) provide that the rate is based upon the 90-day Bank Accepted « Bill » rate, plus an additional seven per cent, as is currently applied by the Australian Taxation Office for tax debts under the Taxation Administration Act. This is an appropriate method for calculating the rate of the interest charge to apply to family assistance debts because the rate is high enough to encourage repayment without being punitive, it provides a return to the Commonwealth (commensurate with the time value of the monies overpaid), and it will help align tax and income support debt recovery policy.

New subsection 78C(2) specifies what the base interest rate is, with reference to the monthly average yield of 90-day Bank Accepted Bills. The rate is currently published by the Reserve Bank of Australia in the ‘Interest Rates and Yields - Money Market - Monthly’ table on the Bank’s website. This subsection also provides a table identifying the appropriate monthly average to be used for each quarter.

Where the Reserve Bank of Australia has not published the specified rate by the start of a quarter, new subsection 78C(3) substitutes the last published monthly average.

New subsection 78C(4) provides for the rounding of the base interest rate to the second decimal place.

This new interest charge rate replaces the interest charge rate that currently applies under section 79. The current interest charge rate is three per cent per year, as specified in the Minister’s Social Security (Penalty Interest) Determination 2001 as at 31 July 2001. A  rate of three per cent per year has been determined in the A New Tax System (Family Assistance) (Administration) (Penalty Interest) Determination 2001 (FA Penalty Interest Determination). The initial rate of 20 per cent was too high and resulted in a rapidly increasing debt base and financial hardship for debtors. The subsequent rate of three per cent was too low and did not provide an incentive for debtors to enter into payment arrangements, and administrative costs outweighed recovery of debts. The interest charge scheme has not been applied since 2005.

Section 78D - Exemption from interest charge - general

New section 78D provides for general exemptions from an interest charge. A person is not liable to pay an interest charge under new section 78 or 78A if, on the day before the person would otherwise have been liable to pay that charge, the person is receiving:

•        instalments of family tax benefit; or

•        a social security payment; or

•        a payment of pension or allowance under the Veterans’ Entitlements Act; or

•        instalments under the ABSTUDY scheme that include an amount identified as living allowance; or

•        instalments under the Assistance for Isolated Children Scheme.

These exemptions mean that a person who is already subject to deductions from their payments in order to pay off their debts is not liable to pay an interest charge, and only people who have the financial capacity to pay an interest charge will be liable to pay that charge. A person who is receiving any one of a number of government payments who is paying off their debt through deductions, and who may have less financial capacity to pay the interest charge, will be exempt from that interest charge.

A person who is receiving child care assistance and/or payments under the Paid Parental Leave Act (and no other payment listed above) or a person who is receiving a payment of compensation under the Military Rehabilitation and Compensation Act 2004 , and who has the financial capacity to repay their debts, will not be exempt under this provision as they are not subject to deductions from these payments to pay back existing debts.

A person will also not be liable to pay an interest charge if the circumstances determined by the Minister in a legislative instrument apply in relation to the person. Providing for exemptions in circumstances determined by the Minister in a legislative instrument will provide the Minister with the flexibility to consider other circumstances which may be identified in the future where it would be appropriate for a person to have an exemption from the interest charge. Using an instrument will enable this to occur in a timely manner without having to amend the primary legislation. This power can only be used beneficially and any instrument made by the Minister would be subject to Parliamentary scrutiny and disallowance.

As an example, the Minister may determine in a legislative instrument, that a person is not liable to pay the interest charge where the person is on a social security payment nil rate period or entitled to be paid family tax benefit by instalment but where the rate of family tax benefit is nil. The exemption from the interest charge in new paragraphs 78D(1)(a) and 78D(1)(b) may not apply to such a person, even when considered a current recipient, because the person is not in fact receiving a benefit amount.

Section 78E - Exemption from interest charge - Secretary’s determination

New section 78E provides for when a person has an exemption from the interest charge on the basis of a determination made by the Secretary. New section 78E is in similar terms to current section 78A, which applies to the current interest charge scheme.

New subsection 78E(1) provides for the Secretary to determine that interest charge is not payable, in respect of a particular period, by a person on the outstanding amount of a debt. Providing the Secretary with the discretion to determine that an interest charge is not payable will ensure there is capacity to exempt a particular person from the charge where exceptional circumstances apply to the person. Such exceptional circumstances may not have been foreseen before any legislative instrument is made for the purposes of new section 78D, as described above.

New subsection 78E(2) provides guidance on when the Secretary may make a determination under new section 78E. The Secretary may make such a determination in circumstances that include, but are not limited to, the Secretary being satisfied that the person had a reasonable excuse for:

•        failing to enter into a repayment arrangement under section 91 to pay the outstanding debt; or

•        having entered into such an arrangement, failing to make a payment in accordance with the arrangement.

New subsection 78E(3) clarifies that a determination made by the Secretary may relate to a period before, or to a period that includes a period before, the making of the determination.

New subsection 78E(4) provides that a determination may be expressed to be subject to the person complying with one or more specified conditions. If the determination is expressed in this way and the person contravenes a condition or conditions without reasonable excuse, then new subsection 78E(6) provides that the determination ceases to have effect from the day on which the contravention occurs. As such, the person may be liable to pay an interest charge from that day.

New subsection 78E(5) provides that the Secretary must give the person written notice of the determination if the determination to exempt them from the application of an interest charge is expressed to be subject to the person complying with one or more specified conditions. New section 78E is a beneficial provision. As such, there is no statutory requirement to provide a person with written notice of a determination that is not subject to such conditions. A determination will be made under new section 78E only after the Department of Human Services has had discussions with the person about the person’s debt, including giving advice that an interest charge will not be payable on the person’s debt.

New subsection 78E(7) provides that the Secretary may cancel or vary the determination by written notice given to the person. Providing the Secretary with the flexibility to cancel a determination will ensure there is the capacity to end a person’s exemption to the interest charge where their circumstances no longer warrant the exemption being applied.

Section 78F - Guidelines on interest charge provisions

New section 78F provides that the Minister may determine guidelines in a legislative instrument relating to the operation of the provisions dealing with the interest charge.

Current section 79A requires the Secretary to determine guidelines, by legislative instrument, for the operation of the current provisions dealing with penalty interest. The FA Penalty Interest Determination has been made for the purposes of current section 79A.

As explained above in relation to new section 78C, one of the matters determined in the FA Penalty Interest Determination is the penalty interest rate. Given that new section 78C outlines what the interest rate is under the new scheme (90-day Bank Accepted « Bill » rate plus seven per cent) and there is no capacity for the Minister to change it by legislative instrument, guidelines to be determined by a legislative instrument may not be needed. Therefore new section 78F provides the Minister with the discretion to determine guidelines but does not require the Minister to determine guidelines. The operation of the penalty interest charge scheme will be monitored and consideration will be given to whether guidelines are necessary. The Minister may choose to determine guidelines on, for example, the circumstances in which the Secretary may make a determination under new section 78E that a person is not liable to pay an interest charge.

Item 4 amends the definition of debt in paragraph 82(3)(a) to include the interest charge. Section 82 provides for methods of recovery in relation to a debt, and this amendment will ensure that those methods of recovery are available to debts that are interest charges.

Item 5 is to clarify that, if a person has entered into an arrangement for the payment of a debt, it is a statutory requirement for the person to make a payment under the arrangement before the end of the day that the arrangement requires such a payment.

Amendments to the Paid Parental Leave Act

Items 6, 8 and 9 repeal definitions in section 6, which are no longer necessary following the amendments made by this Schedule.

Item 7 inserts a definition of interest charge rate into section 6, referring to the interest charge rate as set out in new section 177, which is inserted by this Schedule.

Item 10 amends section 164, which provides a guide to Part 4-3 (Debt Recovery). The amendment removes the reference to an administrative charge of $50 being payable if interest is charged, because the new interest charge scheme inserted by this Schedule will not have an administrative charge.

Item 11 amends a note after section 165 to refer to the correct provision that deals with interest. Following the amendments made by this Schedule, interest will be dealt with in new section 176, not section 177.

Items 12 to 16 and item 18 remove references to an ‘initial debt notice’ and a ‘further debt notice’ in section 173. These amendments are consequential to the amendments made by this Schedule to create a new interest charge scheme, which, among other things, have the effect that there will no longer be a requirement for the Secretary to give a further notice in relation to a debt before an interest charge applies, because the first debt notice will specify the effect of the interest charge provisions, as discussed below.

Item 17 inserts a new paragraph 173(1)(fa).

Subsection 173(1) currently provides that, if a debt by a person to the Commonwealth has not been wholly paid, the Secretary must give the person a notice specifying certain matters. New paragraph 173(1)(fa) provides that the notice must specify the effect of sections 174 and 175. New sections 174 and 175, as amended by this Schedule, provide for an interest charge on a debt if:

•        the person who owes the debt does not have a repayment arrangement in effect; or

•        the person fails to comply with a repayment arrangement; or

•        a repayment arrangement is terminated.

Item 19 repeals subsection 173(3) and substitutes a new subsection. 

Current subsection 173(3) provides that, if a notice given under section 173 states the effect of paragraphs 174(2)(e) and (f), then the notice is taken to be a further debt notice under section 174. Currently, a person is liable to pay an interest charge only if the person is given a further debt notice under section 174. 

Following the amendments made by this Schedule, a person who owes a debt to the Commonwealth may be liable to pay an interest charge in respect of a debt if, before the end of 28 days after the initial notice is given, the person has not paid the debt in full and has not entered into a repayment arrangement to pay the debt. That is, a further notice does not need to be given before the person becomes liable to pay the interest charge. A person will be notified of the effect of the interest charge provisions following the amendments made by item 17 of this Schedule, removing the need for a further notice referred to in current section 174. It follows that subsection 173(3) does not need to refer to the circumstances in which an initial debt notice can be a further debt notice.

New subsection 173(3) makes it clear that the Secretary may give more than one notice under subsection 173(1) in relation to a person and a debt of the person.

Item 20 repeals sections 174 to 180 and substitutes new sections. The new provisions introduce a new interest charge scheme and they mirror, with modifications to make the scheme relevant to the Paid Parental Leave Act, the operation of the interest charge scheme inserted into the Family Assistance Administration Act by item 3 of this Schedule and described above.

Items 21, 23 and 24 amend notes in section 181, subsection 191(1) and subsection 194(1). The notes provide that debts recoverable by the Commonwealth under the Paid Parental Leave Act are provided for by particular provisions, including provisions dealing with interest charges. The notes are amended to refer to the new interest charge provisions, as inserted by this Schedule.

Item 22 is to clarify that, if a person has entered into an arrangement for the payment of a debt, it is a statutory requirement for the person to make a payment under an arrangement before the end of the day that the arrangement requires such a payment.

Amendments to the Social Security Act

Item 25 amends item 16 of the table in subsection 1222(2). This table provides for the methods of recovery of debts. Current table item 16 provides for the methods of recovery for an interest charge, and this amendment refers to the new provision (section 1229C) under which the interest charge is calculated.

Item 26 repeals item 17 of the table in subsection 1222(2). Table item 17 refers to the methods of recovery for an administrative charge that applies when a person first becomes liable to pay an interest charge. Following the amendments made by this Schedule, a person will not be liable to pay an administrative charge when the person becomes liable to pay the interest charge.

Items 27 to 30 repeal a number of notes, which are no longer necessary as a result of the new interest charge scheme as inserted by this Schedule.

Item 31 inserts new subsection 1228B(2A) to clarify that a 10 per cent penalty added to a debt for the understatement of income is part of the debt. For the purposes of imposing an interest charge, this will mean that a reference to ‘debt’ will include the amount of the payment that a person has obtained to which they were not entitled, as well as any 10 per cent penalty added to the debt under section 1228B.

Item 32 amends subsection 1228B(5) so that an additional 10 per cent penalty imposed for the understatement of income does not apply to a debt due to the Commonwealth under new section 1229C (as inserted by item 35 of this Schedule).

The purpose of this amendment is to clarify that an additional 10 per cent penalty cannot apply to an interest charge under new section 1229C. This is because section 1228B only imposes an additional 10 per cent penalty where a person has refused or failed to provide information in relation to the person’s income or has knowingly or recklessly provided false or misleading information in relation to the person’s income. The interest charge debt due to the Commonwealth under new section 1229C is not dependent on an individual providing information on their income, so an additional 10 per cent penalty cannot apply to an interest charge debt under new section 1229C.

Item 33 inserts a new paragraph 1229(1)(ea).

Subsection 1229(1) currently provides that, if a debt by a person to the Commonwealth has not been wholly paid, the Secretary must give the person a notice specifying certain matters. New paragraph 1229(1)(ea) provides that the notice must specify the effect of new sections 1229A and 1229B. New sections 1229A and 1229B are inserted by this Schedule, and they provide for an interest charge on a debt if:

•        the person who owes the debt does not have a repayment arrangement in effect; or

•        the person fails to comply with a repayment arrangement; or

•        a repayment arrangement is terminated.

Item 34 repeals subsections 1229(3) and (4) and inserts a new subsection 1229(3).

Current subsection 1229(3) provides that the Secretary may give a person a further notice specifying certain matters if, following a notice given under subsection 1229(1), the debt has not been wholly paid and:

•        the person has failed to enter into an arrangement to pay the debt; or

•        the person has entered into an arrangement but has failed to make a payment in accordance with the arrangement.

The matters the Secretary must specify in a further notice include the effect of the current interest charge provisions and how the interest is to be calculated. Current subsection 1229(4) provides that an initial notice given under subsection 1229(1) is taken to be a further notice given under subsection 1229(3) if it specifies the effect of the current interest charge provisions and how the interest is to be calculated.

Repealing subsection 1229(3) means that a person who owes a debt to the Commonwealth may be liable to pay an interest charge if, before the end of 28 days after the initial notice is given, the person has not paid the debt in full and has not entered into a repayment arrangement to pay the debt. That is, a further notice does not need to be given before the person becomes liable to pay the interest charge. A person will be notified of the effect of the interest charge provisions following the amendments made by item 33 of this Schedule, removing the need for a further notice under current subsection 1229(3).

New subsection 1229(3) makes it clear that the Secretary may give more than one notice under subsection 1229(1) in relation to a person and a debt of the person.

Item 35 repeals sections 1229A to 1229C and substitutes new sections. The new provisions introduce a new interest charge scheme and they mirror, with modifications to make the scheme relevant to the Social Security Act, the operation of the interest charge scheme inserted into the Family Assistance Administration Act by item 3 of this Schedule and described above.

Items 36 and 37 repeal notes, which are no longer necessary as a result of the new interest charge scheme inserted by this Schedule.

Item 38 is to clarify that, if a person has entered into an arrangement for the payment of a debt, it is a statutory requirement for the person to make a payment under an arrangement before the end of the day that the arrangement requires such a payment.

Amendments to the Student Assistance Act

Item 39 repeals the definition of late payment charge in subsection 3(1). The amendments made by item 43 mean that this term will no longer be used in the Student Assistance Act.

Item 40 is consequential to the amendments made by item 42.

Item 41 amends paragraph (c) of the definition of debt in section 38 to ensure that an interest charge, imposed under new section 41B (inserted by this Schedule), is an amount payable to the Commonwealth and is therefore a debt.

Item 42 inserts a new definition of relevant debt into section 38. Section 38 provides definitions for the purposes of Part 6 of the Student Assistance Act 1973 . Part 6 provides for overpayments arising under the Student Assistance Act and certain administrative schemes.

The new definition of relevant debt is relevant to the new interest charge scheme inserted by item 43 of this Schedule. A person may be liable to pay an interest charge in relation to relevant debts. A relevant debt means:

•        an amount paid under the ABSTUDY Scheme (also known as the Aboriginal Study Assistance Scheme) that should not have been paid; or

•        an amount paid under the Assistance for Isolated Children Scheme that should not have been paid; or

•        an ABSTUDY student start-up loan overpayment.

Item 43 repeals sections 39A, 40 and 41 and substitutes new sections to introduce an interest charge scheme.

The Student Assistance Act does not currently have an interest charge scheme that is analogous to the schemes currently in effect in the Family Assistance Administration Act, Paid Parental Leave Act and Social Security Act. Rather, current section 39A provides that the Secretary may allow a person to pay an amount of debt by one or more instalments. Current section 40 applies if a person has been paid an amount that is a special assistance scheme overpayment or a student assistance overpayment. If this amount is due to the Commonwealth, the Secretary may give the person a notice specifying that, among other things, if the amount is still due to the Commonwealth at the end of three months after the notice is given, the person is liable to pay interest at the rate ascertained by the regulations. The  Student Assistance Regulations 2003 do not currently ascertain an interest rate. Current section 41 allows the Secretary to determine that interest that is otherwise payable under section 40 is not payable.

The current provisions are replaced with new provisions to introduce an interest charge scheme. The new provisions mirror, with modifications to make the scheme relevant to the Student Assistance Act, the operation of the interest charge scheme inserted into the Family Assistance Administration Act by item 3 of this Schedule and described above.

Item 44 amends paragraph 51(1)(b) to ensure that a certificate by the Secretary (stating that, on a specified day, a notice, to a specified effect, in respect of a relevant debt, was given to a specified person by the Secretary) is clear evidence of the matters stated in the certificate.

Amendments to the Veterans’ Entitlements Act

Item 45 repeals section 205AAE and substitutes a new section.

Section 205AAE currently provides the penalty interest rate for the purposes of the debt recovery provisions contained in the Veterans’ Entitlements Act. The rate applicable is that which applies under section 1229B of the Social Security Act.

Section 1229B provides that the rate is either the maximum rate of 20 per cent or the lower rate in force from time to time as determined by a legislative instrument under that section. The Social Security (Penalty Interest) Determination 2001 that was made under section 1229B provides that the penalty interest rate is three per cent per year.

The amendments made by item 35 of this Schedule mean that new section 1229B of the Social Security Act will no longer contain the penalty interest rate for the purposes of the interest charge scheme. Rather, the interest rate will be contained in new section 1229D of the Social Security Act. The new penalty interest rate in section 1229D will be based on the 90-day Bank Accepted « Bill » rate plus an additional seven per cent.

The new interest charge scheme inserted into the Social Security Act by this Schedule is not intended to apply to the Veterans’ Entitlements Act. As such, section 205AAE of the Veterans’ Entitlements Act is amended so that the current penalty interest rate of three per cent per year for the purposes of the debt recovery provisions in that Act will be retained.

New section 205AAE states that the interest rate is three per cent per year or the rate that the Minister may, by legislative instrument, determine as the penalty interest rate. As penalty interest is infrequently applied under the debt recovery provisions of the Veterans’ Entitlements Act, a maximum rate of penalty interest that may be determined in a legislative instrument has not been specified.

Part 2 - Application, saving and transitional provisions

Item 46 provides application and transitional provisions for the amendments to the Family Assistance Administration Act.

Subitem 46(1) provides that paragraph 78(1)(a) of the Family Assistance Administration Act, as amended by this Schedule, applies in relation to a notice given on or after the commencement of item 46, whether the debt arose before, on or after that commencement. This means that the new interest charge scheme can apply to debts that arose before the commencement of the scheme, provided that a relevant notice is given on or after commencement.

Subitem 46(2) provides that, if, before the commencement of item 46, the Secretary gave a person a notice under subsection 77(1) of the Family Assistance Administration Act, the Secretary must give the person another notice under section 77(1) of that Act, as amended by this Schedule. This means that the person will be informed in the new notice of the effect of the application of the interest charge.

Subitem 46(3) provides that paragraph 78A(1)(b) of the Family Assistance Administration Act, as amended by this Schedule, applies only in relation to a failure that occurs on or after the commencement of item 46, regardless of whether the arrangement was entered into before, on or after that commencement. This means that a person is not liable to pay an interest charge under section 78A if a failure to make a payment under a repayment arrangement occurs before the commencement of item 46. It also means that an arrangement that was entered into prior to the commencement of this Schedule will continue in effect after commencement.

Subitem 46(4) provides that paragraph 78A(4)(b) of the Family Assistance Administration Act, as amended by this Schedule, applies only to a termination that occurs on or after the commencement of item 46, regardless of whether the arrangement was entered into before, on or after that commencement. This means that a person is not liable to pay an interest charge under section 78A if a repayment arrangement is terminated before the commencement of item 46. It also means that an arrangement that was entered into prior to the commencement of this Schedule will continue in effect after commencement.

Subitem 46(5) clarifies that new subsection 91(1B) of the Family Assistance Administration Act (about making a payment before the end of a particular day under a repayment arrangement) applies in relation to existing arrangements, as at the commencement date.

Items 47 and 48 provide application and transitional provisions for the amendments to the Paid Parental Leave Act and the amendments to the Social Security Act. These provisions mirror the application and transitional provisions for the amendments to the Family Assistance Administration Act in item 46, described above.

Item 49 provides the application, saving and transitional provisions for the amendments to the Student Assistance Act.

Subitem 49(1) provides that the new interest charge scheme in sections 40 to 41G of the Student Assistance Act apply to a relevant debt that arises on or after the commencement of item 49, and to debts that arose before the commencement of that item, to the extent that the debt is outstanding immediately before that commencement.

Subitem 49(2) makes it clear that the repeal of section 39A of the Student Assistance Act by this Schedule does not affect the validity of the decisions made under that section before the commencement of item 49.

Subitem 49(3) makes it clear that the new interest charge scheme inserted into the Student Assistance Act by this Schedule can apply to a person and a debt even if a decision was made by the Secretary before the commencement of item 49 to allow a person to pay an amount of debt by one or more instalments.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Interest charge

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview

The Schedule amends the penalty interest provisions in the Social Security Act 1991, A New Tax System (Family Assistance) (Administration) Act 1999 and Paid Parental Leave Act 2010 and inserts new penalty interest provisions in the Student Assistance Act 1973 . The new annual interest charge scheme is proposed to apply from 1 January 2017 to former recipients of social welfare payments who have outstanding debts and have failed to enter into, or have not complied with, an acceptable repayment arrangement.

The interest charge will apply to social security, family assistance (including child care), paid parental leave and student assistance debts.

The rate of the proposed interest charge (approximately nine per cent) will be based on the 90-day Bank Accepted « Bill » rate (approximately two per cent) plus an additional seven per cent, as is already applied by the Australian Taxation Office (ATO) under the Taxation Administration Act 1953 . This is considered an appropriate method for calculating the rate of the interest charge to apply to social welfare debt because the rate is high enough to encourage repayment without being punitive, and it provides a return to the Commonwealth, commensurate with the time value of the monies overpaid.

The purpose of the interest charge is to incentivise responsible self-management of debts and encourage debtors to repay their debts in a timely manner, where they have the financial capacity to do so.

It is important to note that a debt only arises where a person receives a payment to which they were not entitled. In most circumstances, current recipients of social welfare payments with outstanding debts have their payments reduced until their debts are repaid. By comparison, former recipients who are no longer dependent on the social security system, have no incentive to repay their debts and may actively avoid repayment.

Debtors who are no longer eligible to receive financial support through social welfare payments are more likely to have the financial capacity to make repayments than those in receipt of social welfare payments.

To ensure all debtors are treated consistently and fairly, the interest charge will also apply to those in receipt of only child care assistance and/or payments under the Paid Parental Leave Act 2010 (and no other social welfare payment) with outstanding debts. These debtors are not subject to deductions from their payment, and should be required to enter into an acceptable repayment arrangement to repay the debt as with other debtors.

The interest charge can only be applied to the debt where the person has not entered into a repayment arrangement, has failed to comply with a repayment arrangement, or where a repayment arrangement has been terminated (without entering into an alternative repayment arrangement with the Department of Human Services (DHS)).

The debtor will be issued a notice in respect of a debt, which will outline the reason why the debt was incurred, the outstanding amount of the debt, and the effect of the interest charge applying if they do not enter into an acceptable payment arrangement within 28 days.

In the event that a repayment arrangement is terminated, the debtor will be provided with sufficient time (14 days) to pay the debt in full or enter into a new repayment arrangement and avoid the application of the interest charge.

In cases of severe financial hardship, a debtor can apply to DHS for a review of their capacity to pay and the debt may be waived or temporarily written off until the debtor’s financial circumstances improve. No interest charge would be applied for that period of time. A reduced rate of recovery may also be applied under the repayment arrangement.

Human rights implications

This Schedule engages the following human rights:

Rights of parents and children

This Schedule engages the right of parents and children contained in article 3 of the Convention of the Rights of the Child (CRC) and article 24(1) of the International Covenant on Civil and Political Rights (ICCPR).

Under the CRC, countries are required to apply the principle of best interests of the child. The principle applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and wellbeing, as well as measures to support and assist parents and others who have day - to - day responsibility for ensuring recognition of children's rights.

Countries are also required under the CRC to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child and to provide appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities, in particular to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible. Countries should ensure that parents and legal guardians are aware of their rights to access information on payments and services to which they are entitled to for the benefit of children.

The Schedule does not limit the rights of parents and children. The interest charge will apply to former recipients of social welfare with outstanding debts, who are unwilling to enter into acceptable repayment arrangements. To ensure all debtors are treated consistently and fairly, the interest charge will also apply to those in receipt of only child care assistance and/or payment under the Paid Parental Leave Act 2010 (and no other social welfare payment) with outstanding debts. These debtors are not subject to deductions from their payment and should be required to enter into an acceptable repayment arrangement to repay the debt as with other debtors.

A debt only arises where a person receives a payment to which they were not entitled. Given the interest charge is intended as an incentive for debtors to repay debts in a timely fashion and is only applied where the debtor has not entered into a repayment arrangement where they have the financial capacity to do so, the interest charge will not limit the rights of parents and children.

Right to maternity leave

This Schedule engages the right to maternity leave contained in article 10(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

The right to maternity leave includes an entitlement for working mothers to paid leave or social security benefits during a reasonable period before and after childbirth. It also requires countries, as a measure of prevention of discrimination against women, to provide maternity leave with pay or with comparable social benefits without loss of former employment or seniority.

This Schedule does not limit the right to maternity leave. The interest charge will apply to former recipients of social welfare with outstanding debts, who are unwilling to enter into acceptable repayment arrangements. To ensure all debtors are treated consistently and fairly, the interest charge will also apply to those in receipt of only child care assistance and/or payments under the Paid Parental Leave Act 2010 (and no other social welfare payment) with outstanding debts. These debtors are not subject to deductions from their payment and should be required to enter into an acceptable repayment arrangement to repay the debt as with other debtors.

A debt only arises where a person receives a payment to which they were not entitled. Given the interest charge is intended as an incentive for debtors to repay debts in a timely fashion and is only applied where the debtor has not entered into a repayment arrangement where they have the financial capacity to do so, the interest charge will not limit the right to maternity leave.

Rights of people with disability

This Schedule engages the rights of people with disability contained in the Convention on the Rights of Persons with Disabilities .

In particular, to ensure that people with disability have the same right as others to live, take part and be included in the community, article 19 states that countries must take appropriate steps to ensure that people with disability have the opportunity to choose where they live and who they live with, have access to in-home, residential and other community support services to help them be included in the community and prevent them from being isolated, and to ensure that they have equal access to community services and facilities that are available to the public.

Article 26 (1) states that parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.

This Schedule does not limit the rights of people with disability. The interest charge will apply to former recipients of social welfare with outstanding debts, who are unwilling to enter into acceptable repayment arrangements (this includes carer payments and the Disability Support Pension). A debt only arises where a person receives a payment to which they were not entitled. Given the interest charge is intended as an incentive for debtors to repay debts in a timely fashion and is only applied where the debtor has not entered into a repayment arrangement where they have the financial capacity to do so, the interest charge will not limit the rights of people with disability.

Right to work and rights in work

This Schedule engages the right to work and rights in work contained in articles 6(1), 7 and 8(1)(a) of the ICESCR.

In particular, article 6(1) recognises the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts and states that countries must have specialised services to assist and support individuals in order to enable them to identify and access available employment.

This Schedule does not limit the right to work and rights in work. The interest charge will apply to former recipients of social welfare with outstanding debts, who are unwilling to enter into acceptable repayment arrangements (this includes working age payments). A debt only arises where a person receives a payment to which they were not entitled. Given the interest charge is intended as an incentive for debtors to repay debts in a timely fashion and is only applied where the debtor has not entered into a repayment arrangement where they have the financial capacity to do so, the interest charge will not limit the debtor’s right to work and rights in work.

Right to education

This Schedule engages the right to education contained in Article 13 of the ICESCR.

In particular, article 13(2)(b) states that secondary education, in all its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means and, in particular, by the progressive introduction of free education.

This Schedule does not limit the right to education.  The interest charge will apply to former recipients of social welfare with outstanding debts, who are unwilling to enter into acceptable repayment arrangements (this includes student payments). A debt only arises where a person receives a payment to which they were not entitled. Given the interest charge is intended as an incentive for debtors to repay debts in a timely fashion and is only applied where the debtor has not entered into a repayment arrangement where they have the financial capacity to do so, the interest charge will not limit the debtor’s ability to access education.

Right to social security

This Schedule engages the right to social security contained in article 9 of the ICESCR.

The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.

The United Nations Committee on Economic, Cultural and Social Rights (the Committee) has stated that a social security scheme should be sustainable and that the conditions for benefits must be reasonable, proportionate and transparent (see General Comment No.19).

Article 4 of ICESCR provides that countries may limit the rights such as to social security in a way determined by law only in so far as this may be compatible with the nature of the rights contained within the ICESCR and solely for the purpose of promoting the general welfare in a democratic society. Such a limitation must be proportionate to the objective to be achieved.

The interest charge does not limit the right of a person to receive social security. It will apply to former recipients of social security and family assistance payments with outstanding debts, who are unwilling to enter into an acceptable payment arrangement. A debt only arises where a person receives a payment to which they were not entitled.

Former recipients who are no longer eligible to receive financial support through social welfare payments are more likely to have the financial capacity to make repayments on any outstanding debt than those in receipt of social welfare.

To ensure all debtors are treated consistently and fairly, the interest charge will also apply to those in receipt of only child care assistance and/or payments under the Paid Parental Leave Act 2010 (and no other social welfare payment) with outstanding debts. These debtors are not subject to deductions from their payment and should be required to enter into an acceptable repayment arrangement to repay the debt as with other debtors.

A debtor’s financial capacity will be taken into account before a repayment arrangement is agreed to. Given this, the impact of the interest charge will be limited and will have a very marginal effect on the ability of a person to cover essential living costs, thereby engaging a person’s right to social security. The provisions in this Schedule are therefore unlikely to limit this right, given the appropriate safeguards put in place to protect it.

It is intended that the provisions in this Schedule will allow the efficient recovery of social security payments, supporting effective and efficient administration of the social security system. This measure is proportionate in achieving this policy objective as all persons can avoid the interest charge by entering into a repayment arrangement, and these rights are safeguarded by the requirements of notice and periods of time in which a person will be able to pay back the debt or enter into an arrangement. Furthermore, the Secretary will have the discretion in appropriate circumstances, for example in cases of severe financial hardship, to waive a debt including any interest charge on the debt.

By allowing the efficient recovery of social security payments, this Schedule ensures the financial sustainability of the social security system. The interest charge, as it applies to persons who received payments to which they were not entitled, is a reasonable condition on the benefits of the system as it encourages former recipients to repay those amounts and ensures that the Commonwealth is able to recover the real value of these amounts. The interest charge, as a condition, is also transparent as it is provided for in legislation, will be accurately communicated through the Department of Human Services’ website, and can only be applied after sufficient written notice is given.

Therefore this Schedule is compatible with the right to social security as any potential limitation on this right is proportionate to the policy objective and intended to improve the administration of social security system.

Right to an adequate standard of living, including food, water and housing

This Schedule engages the right to an adequate standard of living, including food, water and housing, contained in article 11 of the ICESCR. The right to an adequate standard of living, including food, water and housing provides that everyone is entitled to adequate food, clothing and housing and to the continuous improvement of living conditions.

To the extent that there is an impact on a person’s right to an adequate standard of living, including food, water and housing, by virtue of this Schedule, the impact is limited.

It is intended that the provisions will allow the efficient recovery of social security payments, which will ultimately improve the efficacy of the social security system. This measure is proportionate in achieving this policy objective as the interest charge will only apply to former recipients who are no longer eligible to receive financial support through social security or family assistance payments and debtors can avoid the interest charge by entering into a repayment arrangement.

To ensure all debtors are treated consistently and fairly, the interest charge will also apply to those in receipt of only child care assistance and/or payments under the Paid Parental Leave Act 2010 (and no other social welfare payment) with outstanding debts. These debtors are not subject to deductions from their payment and should be required to enter into an acceptable repayment arrangement to repay the debt as with other debtors.

A debtor’s rights are safeguarded by the requirements of notice and periods of time in which a person will be able to repay the debt or enter into an arrangement. In addition a debtor’s financial capacity will be taken into account before a repayment arrangement is agreed to. The Secretary will also have the discretion to waive a debt in appropriate circumstances, including any interest charged on the debt.

Furthermore, by allowing the efficient recovery of social security payments, this Schedule ensures the financial sustainability of the social security system. The interest charge, as it applies to people who receive payments to which they are not entitled, is a reasonable condition on the benefits of the system as it encourages former recipients to repay those payments and ensures that the Commonwealth is able to recover the real value of these amounts. The interest charge is also transparent as it is provided for in legislation, will be accurately communicated through the Department’s website, and can only be applied after the recipient is given sufficient written notice.

Therefore, this Schedule is compatible with the right to an adequate standard of living as the potential limitations on this right are proportionate to the policy objective and are intended to improve the administration of the social security system.

Right to equality and non-discrimination

To avoid doubt, this Schedule does not engage the right to equality and non-discrimination contained in articles 2 and 26 of the ICCPR either on the basis of race or ‘other’ status.

Article 2(1) of the ICCPR obligates each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognised in the Covenant without distinction of any kind, such as race , colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status [4] .

Article 26 not only entitles all persons to equality before the law as well as equal protection of the law, but also prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status [5] .

It is important to note, however, that not all differential treatment will be considered discriminatory. The Committee on Economic, Social and Cultural Rights has provided the following commentary on when differential treatment will be considered discriminatory:

•        Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the Covenant rights and solely for the purpose of promoting the general welfare in a democratic society. In `addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realised and the measures or omissions and their effects. A failure to remove differential treatment on the basis of a lack of available resources is not an objective and reasonable justification unless every effort has been made to use all resources that are at the State party’s disposition in an effort to address and eliminate the discrimination, as a matter of priority [6] .

Discrimination on the basis of race

This Schedule will apply an interest charge to all social security debts including ABSTUDY payments, which supports Indigenous Australians. However, there is no differential treatment on the basis of race as the interest charge will apply equally to all debtors.

For these reasons, this Schedule will not engage the right of equality and non-discrimination.

Discrimination on the basis of ‘other status’

This Schedule applies an interest charge to former recipients of social welfare payments with outstanding debts, rather than all customers with outstanding debts.

This will not limit the right to equality and non-discrimination as the differential treatment is for a reasonable and objective purpose.

In most circumstances, current recipients of social welfare payments with debts have their payments reduced until their debts are repaid. By comparison, former recipients who are no longer dependent on the social security system, have no incentive to repay their debts and may actively avoid repayment.

Debtors who are no longer eligible to receive financial support through social welfare payments are more likely to have the financial capacity to make repayments than those in receipt of income support or family assistance.

The introduction of the interest charge will ensure that people who once received social welfare payments do not receive an unfair advantage by having received what is, in effect, an interest-free loan from the Government.

To ensure all debtors are treated consistently and fairly, the interest charge will also apply to those in receipt of only child care assistance and/or payments under the Paid Parental Leave Act 2010 (and no other social welfare payment) with outstanding debts. These debtors are not subject to deductions from their payment and should be required to enter into an acceptable repayment arrangement to repay the debt as with other debtors.

It is therefore reasonable and objective to apply an interest charge to debts with respect to former recipients of social welfare payments to ensure that people with a debt repay the outstanding amount in a timely fashion. Recipients of these payments will be able to avoid the interest charge altogether by either repaying their debt within 28 days of being notified of the debt or by entering into an acceptable repayment arrangement.

For these reasons, this Schedule does not engage the right of equality and non-discrimination .

Conclusion

This Schedule is compatible with human rights. To the extent that it may have limited adverse impact on a person’s access to education, social security, an adequate standard of living or the right to equality and non-discrimination, the limitation is reasonable, proportionate to the policy objective and for legitimate reasons.

 



Chapter 13      

Debt recovery

Outline of chapter

Schedule 13 of the « Bill » introduces departure prohibition orders so that, in certain cases where a person does not have a satisfactory arrangement in place to repay their social security, family assistance, paid parental leave or student assistance debt(s), they may be prevented from leaving Australia without either having wholly paid their debt(s) or making satisfactory arrangements to pay. This system will closely mirror the existing departure prohibition order system in place under the Child Support (Registration and Collection) Act 1988 (Child Support Registration and Collection Act). Targeted debtors will largely comprise ex-recipients of social welfare payments but may also apply to other social welfare payment recipients in limited circumstances.

Background

This Part amends the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act), Paid Parental Leave Act 2010 , Social Security Act 1991 and Student Assistance Act 1973 to introduce departure prohibition orders to prevent debtors under these Acts from leaving the country. Departure prohibition orders will not be made without consideration of all the circumstances and only where the Secretary believes on reasonable grounds that it is appropriate to do so. Where a departure prohibition order is in force, the Secretary can vary or revoke the order, or can issue a departure authorisation certificate allowing the person to depart the country for a specified period of time.

Departure prohibition orders were introduced into the Child Support Registration and Collection Act in 2000. Currently, there are approximately 120,000 child support customers with child support debts. However, there are only some 2,000 departure prohibition orders in place - that is, departure prohibition orders apply to less than two per cent of all debtors. Departure prohibition orders are only invoked when all reasonable administrative actions have been undertaken to recover the child support debt from the paying parent.

While the number of social welfare payment debtors is significantly higher than the number of child support debtors, it is anticipated that the departure prohibition orders will only be issued in the most extreme social welfare payment debt cases.

Explanation of the changes

Amendments to Family Assistance Administration Act

Item 1 consequentially adds a note to the definition of Australia in subsection 3(1), alerting the reader that in new Division 5 of Part 4 of the Family Assistance Administration Act (about departure prohibition orders, inserted by item 3), Australia has an extended meaning.

Similar notes are inserted regarding the definition of Australia into section 6 of the Paid Parental Leave Act at item 5 , Subsection 23(1) of the Social Security Act at item 10 (and item 11 renumbers the existing note to this definition ‘note 2’), and subsection 3(1) of the Student Assistance Act at item 14 .

Item 2 inserts two new definitions into subsection 3(1) of the Act - departure authorisation certificate and departure prohibition order .

Similar definitions are also inserted into section 6 of the Paid Parental Leave Act at item 6 , subsection 23(1) of the Social Security Act at item 12 , and subsection 3(1) of the Student Assistance Act at item 15 .

Item 2 adds new Division 5 - Departure prohibition orders to Part 4 of the Act.

Similarly, item 8 adds to Part 4-3 to the Paid Parental Leave Act new Division 7A - Departure prohibition orders. Item 7 amends the relevant Guide within the Paid Parental Leave Act to mention departure prohibition orders. Item 13 adds to Chapter 5 of the Social Security Act new Part 5.5 - Departure prohibition orders. Item 16 adds to Part 6 of the Student Assistance Act new Division 4 - Departure prohibition orders.

Subdivision A - Secretary may make departure prohibition orders

Section 102A - Secretary may make departure prohibition orders

New section 102A outlines when the Secretary can make a departure prohibition order prohibiting a person from departing from Australia for a foreign country. An order may only be made, in a form approved by the Secretary, in respect of a person if the following conditions are met:

•        the person has one or more debts to the Commonwealth under Part 4 of the Act; and

•        there are not arrangements satisfactory to the Secretary in place for the one or more debts to be wholly paid; and

•        the Secretary believes on reasonable grounds it is desirable to make the order to ensure the person does not leave Australia for a foreign country without having wholly paid the debt(s) or there being arrangements in place satisfactory to the Secretary for the debt(s) to be wholly paid.

Before making an order, the Secretary must have regard to certain matters, including:

•        the person’s capacity to pay the debt(s);

•        whether any debt recovery action has been taken and the outcome of the recovery action;

•        the length of time the debt(s) have remained unpaid; and

•        any other matters the Secretary considers appropriate.

The provision will apply to debts arising from time to time.

These provisions are mirrored in the Paid Parental Leave Act, Social Security Act and Student Assistance Act, albeit recognising the differences in the debts covered by each Act. In particular:

•        New section 200A of the Paid Parental Leave Act provides that a departure prohibition order can be issued where the person has one or more debts to the Commonwealth under that Act. Debts under section 168 of that Act are to be disregarded for the purposes of making departure prohibition orders.

•        New section 1240 of the Social Security Act provides that a departure prohibition order can be issued where the person has one or more debts to the Commonwealth under the social security law.

•        New section 43G of the Student Assistance Act states that a departure prohibition order can be made if the person has one or more debts to the Commonwealth under Part 6 of that Act.

Subdivision B - Departure from Australia of debtors prohibited

Section 102B - Departure from Australia of debtors prohibited

New section 102B is a criminal offence provision stating that a person must not depart from Australia for a foreign country if:

•        a departure prohibition order in respect of the person is in force, and the person knows that the order is in force (or is reckless as to whether the order is in force); and

•        the person’s departure is not authorised by a departure authorisation certificate, and the person knows that the departure is not authorised by such a certificate (or is reckless as to whether the departure is authorised by such a certificate).

The penalty for breaching this provision is 12 months’ imprisonment.

This offence provision is mirrored in new section 200B of the Paid Parental Leave Act, new section 1241 of the Social Security Act and new section 43H of the Student Assistance Act.

Subdivision C - Other rules for departure prohibition orders

Section 102C - Notification requirements for departure prohibition orders

New section 102C outlines the notification requirements where the Secretary makes a departure prohibition order in respect of a person. 

Firstly, the Secretary must notify the person in respect of whom a departure prohibition order is made that the departure prohibition order has been made, and must do so in an approved form. In light of the consequences to a person of a departure prohibition order, the Secretary must notify the person that an order has been made as soon as practicable.

Secondly, the Secretary must give the Secretary of the Department administering the Migration Act 1958 (‘the Migration Secretary’) a copy of the order and information likely to assist in identifying the person, as soon as practicable. However, this does not apply if the person is an Australian citizen. This provision enables the Migration Secretary to establish whether a person in respect of whom the departure prohibition order has been made is the subject of a deportation order under the Migration Act 1958 . A departure prohibition order and a deportation order cannot operate concurrently as the deportation order would prevail (under new subsection 102D(2)). The Migration Secretary needs to know about a departure prohibition order to ensure that there is no confusion among enforcement officers as to which order prevails. However, as an Australian citizen cannot be deported, the Migration Secretary does not need to know if a departure prohibition order is made in respect of a citizen.

The Secretary must also give a copy of the order, and information likely to assist in identifying the person, to such other persons as the Secretary considers appropriate in the circumstances, as soon as practicable. A legislative instrument will specify the persons to whom the Secretary must provide a copy of the order. Orders will be provided to the Comptroller-General of Customs, the Commissioner of the Australian Federal Police and the Secretary of the Department of Foreign Affairs and Trade.

This provision is mirrored in new section 200C of the Paid Parental Leave Act, new section 1242 of the Social Security Act and new section 43J of the Student Assistance Act.

Section 102D - Operation of departure prohibition order

Under new section 102D, a departure prohibition order is in force from the time it is made until it is revoked or set aside by a court. However, as mentioned above, a departure prohibition order is not in force during any period when a deportation order in respect of the person is in force.

This operation of departure prohibition orders is also reflected in new section 200D of the Paid Parental Leave Act, new section 1243 of the Social Security Act and new section 43K of the Student Assistance Act.

Section 102E - Revocation and variation of departure prohibition orders

New section 102E addresses the situations in which a departure prohibition order can be revoked or varied. An order must be revoked if:

•        the person no longer has any debts to the Commonwealth under Part 4 of the Act; or

•        there are arrangements, satisfactory to the Secretary, for the debt(s) to be wholly paid; or

•        the Secretary is satisfied that the debt(s) are completely irrecoverable. 

A departure prohibition order may also be revoked or varied if the Secretary considers it desirable to do so. Revocation or variation may be on application by the person or on the Secretary’s own initiative. A departure prohibition order may be varied if there was an error, such as a typographical mistake, in the original departure prohibition order.

These provisions are reflected in new section 200E of the Paid Parental Leave Act, new section 1244 of the Social Security Act and new section 43L of the Student Assistance Act, noting the differences in the debts the Acts cover, detailed above. In particular:

•        For the purposes of the Paid Parental Leave Act, debts under section 168 of that Act are to be disregarded for the purposes of revoking or varying departure prohibition orders.

Section 102F - Notification requirements for revocations and variations

New section 102F requires the Secretary to notify the person concerned as soon as practicable if the Secretary revokes or varies the departure prohibition order (whether on application or on the Secretary’s initiative). If the person has applied for a revocation or variation, the Secretary must also notify the person if the Secretary refuses to revoke or vary the order. Each person originally given a copy of the departure prohibition order (as described above) must be notified if the order is revoked or varied.

This provision is mirrored in new section 200F of the Paid Parental Leave Act, new section 1245 of the Social Security Act and new section 43M of the Student Assistance Act.

Subdivision D - Departure authorisation certificates

Departure authorisation certificates allow a person to depart Australia for a foreign country for a specified period, despite a departure prohibition order being in force.

Section 102G - Application for departure authorisation certificate

Under new section 102G, a person in respect of whom a departure prohibition order is in force may apply in the approved form for a departure authorisation certificate authorising them to depart Australia for a foreign country.

This provision is mirrored in new section 200G of the Paid Parental Leave Act, new section 1246 of the Social Security Act and new section 43N of the Student Assistance Act.

Section 102H - When Secretary must issue departure authorisation certificate

New section 102H addresses when the Secretary must issue a departure authorisation certificate on application by a person. A certificate must be issued if the Secretary is satisfied that:

•        it is likely that the person will depart and return to Australia within an appropriate period; and

•        revocation of the departure prohibition order is likely within an appropriate period; and

•        security for the person’s return to Australia is not necessary.

If the Secretary is not satisfied of these circumstances, a departure authorisation certificate must instead be issued if:

•        the person has given security for their return to Australia under new section 102J; or

•        if the person is unable to give security, the Secretary is satisfied either that the certificate should be issued on humanitarian grounds, or that refusing to issue the certificate would be detrimental to Australia’s interests.

The circumstances in which the Secretary must issue departure authorisation certificates are reflected in new section 200H of the Paid Parental Leave Act, new section 1247 of the Social Security Act, new section 43P of the Student Assistance Act. 

Section 102J - Security for person’s return to Australia

New section 102J provides that a person may give such security as the Secretary considers appropriate for their return to Australia by an agreed date specified in the departure authorisation certificate. Security can be in the form of a bond, a deposit or by other means and will be forfeited to the Commonwealth if the person does not return to Australia by the agreed date. However, the Secretary may substitute a later day for the person’s return to Australia on application by the person or on the Secretary’s own initiative. In the case where a person has applied for the substitution of a later day, the Secretary may refuse to substitute a later day if the person refuses to increase the value of the security appropriately, or to give such further security as the Secretary considers appropriate, or the Secretary considers it would not be appropriate to substitute the later day.

The provision is mirrored in new section 200J of the Paid Parental Leave Act, new section 1248 of the Social Security Act and new section 43Q of the Student Assistance Act. 

Section 102K - What departure authorisation certificate must authorise

New section 102K provides that a departure authorisation certificate is to authorise the person to leave Australia on or before the seventh day after a day specified in the departure authorisation certificate. That day must be after, but no more than seven days after the departure authorisation certificate is issued.

This is reflected in new section 200K of the Paid Parental Leave Act, new section 1249 of the Social Security Act and new section 43R of the Student Assistance Act. 

Section 102L - Notification requirements for departure authorisation certificates

Under new Section 102L, if the Secretary issues a departure authorisation certificate, a copy of the certificate must be given, as soon as practicable to the person and to each person to whom a copy of the departure prohibition order was given under subsection 102C(4) and (5).

The Secretary is also required to notify a person, as soon as practicable, after refusing to issue a certificate.

These notification requirements are reflected in new section 200L of the Paid Parental Leave Act, new section 1250 of the Social Security Act and new section 43S of the Student Assistance Act.

Section 102M - Notification requirements for substituted days

Under new section 102M, if the Secretary substitutes a later day for the person’s return to Australia, the person and each person to whom a copy of the departure prohibition order was given under subsection 102C(4) or (5) must be notified, as soon as practicable.

Where a person applies to substitute a later day for the person’s return to Australia which is refused by the Secretary, the Secretary must give notice of the refusal to the person, as soon as practicable.

Notification requirements for substituted days are contained in new section 200M of the Paid Parental Leave Act, new section 1251 of the Social Security Act and new section 43T of the Student Assistance Act.

Subdivision E - Appeals and review in relation to departure prohibition orders and departure authorisation certificates

Section 102N - Appeals to courts against making of departure prohibition orders

Under new section 102N, a person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Federal Circuit Court of Australia against the making of the order. This has effect subject to Chapter III of the Constitution.

The Secretary’s power to make a departure prohibition order is onerous and discretionary. The conditions required for the Secretary to be satisfied that a departure prohibition order should be made are prescribed in new section 102A. New section 102A provides a list of prescriptive matters that the Secretary must take into consideration.

The Secretary’s power to make a departure prohibition order is a ‘last resort’ position following lengthy, unsuccessful efforts to engage with the debtor to enter into satisfactory arrangements for repayment of the debt. This policy intent will be set out in the Guide to Social Security Law to guide the Secretary’s decision making process.

The Federal Court of Australia or the Federal Circuit Court of Australia has greater capacity to conduct judicial reviews of the Secretary’s discretionary legislative power to ensure that the decision was properly made at that point in time and met the required legislative threshold. This position is based on jurisprudence developed by the Federal Court in the context of taxation departure prohibition orders which indicates that a court has greater capacity, under similar review provisions, to inquire into the reasonableness of the grounds for the order and thus into factual matters, than a court undertaking a purely judicial review.

Under new section 102R a person against whom a departure prohibition order has been made can seek merits review of a refusal by the Secretary to: revoke or vary a departure prohibition order; or issue a departure authorisation certificate to allow a temporary absence from Australia.

This provision is reflected in new section 200N of the Paid Parental Leave Act, new section 1252 of the Social Security Act and new section 43U of the Student Assistance Act.

Section 102P - Jurisdiction of courts

New section 102P clarifies that the jurisdiction of a court under section 102N must be exercised by a single Judge.

This is mirrored in new section 200P of the Paid Parental Leave Act, new section 1253 of the Social Security Act and new section 43V of the Student Assistance Act. 

Section 102Q - Orders of court on appeal

Under new section 102Q, a court hearing an appeal under section 102N against the making of a departure prohibition order may, in its discretion, either make an order setting aside the order or dismiss the appeal.

This rule also appears in new section 200Q of the Paid Parental Leave Act, new section 1254 of the Social Security Act and new section 43W of the Student Assistance Act.

Section 102R - Review of decisions

New subsection 102R(1) allows applications to be made to the Administrative Appeals Tribunal (AAT) for review of a decision of the Secretary under section 102E (Revocation and variation of departure prohibition orders), 102H (Where Secretary must issue departure authorisation certificate) or 102J (Security for a person’s return to Australia).

New subsection 102R(2) clarifies that, despite any provision in Part 5 (Review of decisions) of the Family Assistance Administration Act, that Part does not apply in relation to any decision of the Secretary under this Division. In other words, any decision of the Secretary regarding departure prohibition orders is not subject to the review provisions outlined in Part 5 of the Family Assistance Administration Act. 

These provisions are reflected in the Paid Parental Leave Act, Social Security Act and Student Assistance Act. In particular:

•        New subsection 200R(2) of the Paid Parental Leave Act states that Chapter 5 (Review of decisions) does not apply in relation to any decision of the Secretary about departure prohibition orders.

•        Similarly, new subsection 1255(2) of the Social Security Act states that Part 4 (Internal review of decisions) and Part 4A (Review by the AAT) of the Social Security (Administration) Act 1999 do not apply to any decision of the Secretary about departure prohibition orders.

•        New subsection 43X(2) of the Student Assistance Act states that Part 9 (Review of decisions) does not apply in relation to any decision by the Secretary about departure prohibition orders. 

It is anticipated that due to the minimal number of departure prohibition orders expected to be issued, appeals to the AAT will be low in number.

Subdivision F - Enforcement

Section 102S - Powers of officers of Customs and members of the Australian Federal Police

New section 102S allows Australian Border Force officers or members of the Australian Federal Police to do specified things if they believe on reasonable grounds that a person is about to depart Australia where a departure prohibition order is in force but their departure is not authorised by a departure authorisation certificate.

The officer or member may take steps as are reasonably necessary to prevent the person’s departure, including, but not limited to, steps to prevent the person going on board, or to remove the person from, a vessel or aircraft in which the officer or member believes on reasonable grounds the departure will take place. In addition, the officer or member may also require the person to answer questions or produce documents to the officer or member for the purposes of working out whether a departure prohibition order in respect of the person is in force and, if an order in respect of a person is in force, whether the person’s departure is authorised by a departure authorisation certificate.

Refusal or failure to comply with a requirement to answer question or produce documents is an offence, attracting a penalty of 30 penalty units. However, no offence exists where the person answers the questions or produces documents to the extent they are capable of doing so.

Subsection 102S(4) provides for an exception, preventing a person committing an offence of refusing or failing to comply with a requirement to answer questions or produce documents for the purposes of an officer working out whether a person is prohibited from leaving the country under a DPO. There is no offence committed if a person answers the question or produces the document to the extent that the person is capable (the exception). Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. This is explicitly noted at subsection 102S(4).

The powers of Australian Border Force officers and the Australian Federal Police are mirrored in new section 200S of the Paid Parental Leave Act, new section 1256 of the Social Security Act and new section 43Y of the Student Assistance Act.

Section 102T - Privilege against self-incrimination

New section 102T provides that an individual is not excused from the requirement to answer questions or produce documents on the basis that to do so might tend to incriminate them or expose them to a penalty, as this information is essential for ensuring the effectiveness of the scheme. It is crucial that an officer can obtain information from an individual, through answers to questions and production of documents such as a departure authorisation certificate, to determine whether a person should be prevented from leaving the country under a departure prohibition order. 

However, the answers given and documents produced and any information, document or thing obtained as an indirect consequence of answering the questions or producing the documents are not admissible in evidence against the individual in any criminal proceedings, aside from proceedings under section 137.1 (False or misleading information) or section 137.2 (False or misleading documents) of the Criminal Code Act 1995 .

These provisions are mirrored in new section 200T of the Paid Parental Leave Act, new section 1257 of the Social Security Act and new section 43Z of the Student Assistance Act.

Section 102U - Production of authority to depart

Under new section 102U, an Australian Board Force officer or a member of the Australian Federal Police may request a person to provide a copy of a departure authorisation certificate if the person is about to leave Australia for a foreign country.

If the person refuses or fails to comply with this request, an offence of strict liability is committed, attracting a penalty of five penalty units. Strict liability under the Criminal Code Act 1995 applies to this provision, rather than fault elements applying to all physical elements of the offence. This is because of:

•        the difficulty the prosecution would have in proving fault (especially knowledge or intention) in this case;

•        the fact that the offence is minor (only five penalty units); and

•        the fact that the offence does not involve dishonesty or other serious imputation affecting the person’s reputation.

This provision also appears in new section 200U of the Paid Parental Leave Act, new section 1258 of the Social Security Act and new section 43ZA of the Student Assistance Act.

Subdivision G - Interpretation

Section 102V - Interpretation - departure from Australia for foreign country

New section 102V provides the interpretative rule for when a person departs from Australia for a foreign country. This is to be interpreted as the person’s departure from Australia for a foreign country, whether or not the person intends to return to Australia.

This interpretative provision is mirrored in new section 200V of the Paid Parental Leave Act, new section 1259 of the Social Security Act and new section 43ZB of the Student Assistance Act.

Section 102W - Meaning of Australia

New section 102W states that, for the purposes of Division 5, Australia, when used in a geographical sense, includes the external Territories. In relation to the other Acts:

•        This provision is replicated in new section 200W of the Paid Parental Leave Act.

•        The provision is also replicated in new section 43ZC of the Student Assistance Act.

•        New section 1260 of the Social Security Act also replicates section 102W, but clarifies that the definition of external Territory in subsection 23(1) of the Social Security Act does not apply. Instead, the term external territory has the meaning given by section 2B of the Acts Interpretation Act 1901, which has a wider meaning.

Item 4 inserts a note after the heading to Part 5 - Review of decisions, clarifying that Part 5 does not apply in relation to any decision of the Secretary under Division 5 of Part 4 of the Family Assistance Administration Act about departure prohibition orders.

Further amendments to the Paid Parental Leave Act

Item 9 inserts a note after the heading to Chapter 5 - Review of decisions, to the effect that this Chapter does not apply in relation to any decision of the Secretary about departure prohibition orders under Division 7A of Part 4-3.

Part 3 - Application provisions

Item 17 ensures that amendments made by Part 1 apply to debts that arise on or after the commencement of this item and debts that arose before commencement, but were outstanding immediately prior to commencement.

Part 2 - Removal of 6-year limit on debt recovery

Summary

This Part removes the six-year limit on debt recovery currently in place for social security, family assistance and paid parental leave debts. Removing this limitation will prevent debts from ‘ageing’ out of recovery, and will improve the ability to recover old debts. Debt recovery will be able to commence at any time.

Background

This Part amends the Social Security Act, Family Assistance Administration Act and Paid Parental Leave Act to remove the current six-year limit on the commencement of debt recovery. The amendments will mean that relevant methods of debt recovery, including deductions from payment, legal proceedings and garnishee arrangements, can commence at any time.

Explanation of the changes

Amendments to the Family Assistance Administration Act

Item 18 repeals section 86 to remove the time limits for debt recovery action through deductions from a debtor’s family tax benefit, setting off family assistance against a debt owed, and setting off debts of an approved child care service against child care service payments. 

Item 19 repeals subsections 87(3) and (4) to remove the time limit for debt recovery action to commence through the application of an income tax refund payable to the person.

Items 20 and 21 amend section 88 by repealing subsections 88(2) to (6), thus removing the six-year time limit on commencing legal proceedings to recover outstanding debts and making technical amendments. 

Item 22 repeals section 90 to remove the time limits on debt recovery action through garnishee notice.

Item 23 inserts new section 93B, which clarifies that, for the purposes of Part 4 of the Family Assistance Administration Act, legal proceedings, or any debt recovery action under the Part may be commenced or taken at any time.

Item 24 repeals paragraph 95(3)(a) so that a debt will no longer be considered irrecoverable at law if the debt cannot be recovered by means of the outlined actions because the relevant time limit for recover action has elapsed, to reflect the removal of these time limits.

Amendments to the Paid Parental Leave Act

Items 25, 26 and 27 repeal notes to sections 183 and 184, which refer to time limits on debt recovery, consequential to item 11.

Item 28 repeals section 189 to remove the time limits for debt recovery by legal proceedings and garnishee notices. 

Item 29 inserts new section 192A, which provides that, for the purposes of Part 4-3 of the Paid Parental Leave Act, legal proceedings, or any debt recovery action under the Part may be commenced or taken at any time.

Item 30 amends paragraph 193(3)(a) by omitting reference to a debt becoming irrecoverable at law as a result of the time limit for debt recovery action lapsing.

Amendments to the Social Security Act

Items 31 and 32  amend section 1231 by repealing subsections (2A) to (2E). This removes the six-year limitation on the recovery of debts by deductions from any social security payments or any payment of arrears of social security payments or both, and makes consequential technical amendments. 

Items 33 and 34 amend section 1232 by repealing subsections (2) to (6) and making technical amendments. These amendments remove the six-year limitation on debt recovery by legal proceedings. 

Item 35 amends section 1233 by repealing subsections (7A) to (7E). This removes the six-year limitation on debt recovery by garnishee notice.

Item 36 inserts new section 1234B, which clarifies that, for the purposes of Chapter 5, legal proceedings, or any debt recovery action under a provision of the Chapter, may be commenced or taken at any time.

Item 37 amends section 1236 by repealing paragraphs (1B)(a) and (aa). This amends the circumstances in which a debt is taken to be irrecoverable at law, by removing reference to debts that cannot be recovered by means of deductions, legal proceedings or garnishee notice because the relevant six-year period has elapsed or the debt cannot be recovered by means of deductions or setting off because the six-year period has elapsed under section 86 of the Family Assistance Administration Act. 

Amendments to the Student Assistance Act

Item 38 inserts new section 42B, which clarifies that any debt recovery action under a provision in Part 6 of the Student Assistance Act may be taken at any time.

Part 2 - Application provisions

Items 40 to 42 clarify that the amendments made to the Family Assistance Administration Act, the Paid Parental Leave Act, the Social Security Act and the Student Assistance Act apply in relation to debts that arise on or after commencement of the items, and to debts that arose before commencement, to the extent that the debt was outstanding immediately before that commencement.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Debt recovery

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview

The Schedule introduces provisions in the Social Security Act 1991 , A New Tax System (Family Assistance) (Administration) Act 1999 , Paid Parental Leave Act 2010 and the Student Assistance Act 1973 , which give the Secretary power to issue departure prohibition orders (DPOs), from the later of 1 July 2016 or the day after Royal Assent, to targeted social welfare payment debtors who have outstanding debts and have failed to enter into a satisfactory repayment arrangement.  

DPOs will be used to prevent targeted social welfare debtors from leaving the country to encourage payment their debt. DPOs will apply to social security, family assistance (including child care), paid parental leave and student assistance debts in the same way that DPOs have been applied against for people with child support debt.

While a DPO may be in place, the Schedule includes procedures to allow for people subject to a departure prohibition to travel overseas in specified circumstances. Departure Authorisation Certificates (DACs) may also be granted on humanitarian grounds or where the person’s travel may be in Australia’s best interests.

It is important to note that a debt only arises where a person receives a payment to which they were not entitled. In most circumstances, current recipients of social welfare payments with outstanding debts have their payments reduced until their debts are repaid. By comparison, ex-recipients who are no longer dependent on the social security system, have no incentive to repay their debts and may actively avoid repayment.

Debtors who are no longer eligible to receive financial support through social welfare payments are more likely to have the financial capacity to make repayments than those in receipt of social welfare payments.

The Schedule also amends the Social Security Act 1991 , A New Tax System (Family Assistance) (Administration) Act 1999 and Paid Parental Leave Act 2010 to remove the current limitation on the recovery of debt where recovery action has not been undertaken in the preceding six years. This measure will commence from the later of 1 July 2016 or the day after Royal Assent. This will align social welfare debt recovery with other government agencies involved in the recovery of Commonwealth debt, where there is no such limitation. Debt recovery will be able to commence at any time.

Human rights implications

The Schedule engages the following human rights:

Rights to freedom of movement

The Schedule engages the right to freedom of movement in article 13 of the Universal Declaration of Human Rights (UDHR) and article 12(2) of the International Covenant on Civil and Political Rights (ICCPR). The UDHR provides a common standard of achievements for all peoples and all nations. It sets out fundamental human rights to be universally protected. 

Article 13(2) of the UDHR states that ‘e veryone has the right to leave any country, including his own, and to return to his country’.

Article 12(2) of the International Covenant on Civil and Political Rights (ICCPR) provides that ‘E veryone shall be free to leave any country, including his own. Article 13(3) goes on to state that ‘The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

Where a person has received support in the way of social welfare payment, and that person receives an excess payment to which they were not entitled, the person has a legal and moral obligation to repay those monies to the issuing body, the Commonwealth of Australia. Currently, there are virtually no consequences if the person fails to enter into an arrangement to repay those excess funds (the debt). 

Where the person has the means to repay their debt, they should do so. It is considered that where a person with a debt, not in an acceptable repayment arrangement, has the means to travel overseas, their travel movements should be restricted to enable them to enter into suitable arrangements to repay of their debt. It is unreasonable that people with debts to the Commonwealth can travel feely to and from Australia without regard to repayment of the excess social welfare payments previously received, while the community is denied access to the funds being withheld by the debtor.

This Schedule seeks to correct that imbalance, and will continue to allow debtors to travel overseas where they have wholly repaid the debt, or made a satisfactory arrangement to repay the debt.

The Schedule contains provisions to allow for travel on humanitarian grounds or where the person’s travel may be in Australia’s best interests, through the issuance of a DAC, in spite of a DPO being in place.

Debtors will also be able to travel through the issuance of DACs where it is likely the person will depart and return to Australia within an appropriate period or where the person has given an appropriate level of security.

Therefore, the human right permitting a person to leave his country under the UDHR, and the ICCPR, is preserved and protected provided the person complies with the law (as provided under this Schedule) and makes the arrangements necessary to repay his social welfare payment debt to the country that provided him with the social support. Further, those rights are enshrined in the capacity for person to travel under a DAC on humanitarian grounds.

The removal of the limitations on the recovery of debt where recovery action has not been undertaken in the preceding six years will allow recovery of debt older that would have otherwise aged out of scope of the Commonwealth’s capacity to recover the debt by involuntary means. This provision will align social welfare debt recovery with other government agencies involved in the recovery of Commonwealth debt where there is no such limitation. This provision does not impinge on the right to depart and enter Australia.

Right to liberty and security of the person and freedom from arbitrary detention

The Schedule does not impinge upon the article 9 of the International Covenant on Civil and Political Rights (ICCPR).

DPOs do not provide for the power of arbitrary arrest or detention, and there is no suggestion of any criminality leading to a DPO being issued. However, attempting to depart Australia while a DPO is in force, in the absence of a DAC, is a criminal offence.

A person subject to a DPO is typically taken aside by officers of the Australian Federal Police at an international port of departure, but not detained, and advised of the reasons for the DPO, and asked whether they have obtained a DAC to authorise departure notwithstanding the existence of the DPO. Further access to the point of departure will be denied if no DAC is presented, however the person is able to return to their home within Australia and undertake the necessary negotiations to revoke the DPO (by making a satisfactory repayment arrangement), offer up sufficient security or seek to satisfy conditions under which a DAC can be issued - for example, on humanitarian grounds.

The Schedule does not invoke a limit on the rights of persons to liberty within Australia, nor does it subject persons to arbitrary arrest or detention.

The removal of the limitations on the recovery of debt where recovery action has not been undertaken in the preceding six years will allow recovery of debt older that would have otherwise aged out of scope of the Commonwealth’s capacity to recover the debt by involuntary means. This provision will align social welfare debt recovery with other government agencies involved in the recovery of Commonwealth debt where there is no such limitation. This provision does not impinge on a person’s right to liberty or security of a person.

Rights of parents and children

The Schedule engages the right of parents and children contained in article 3 of the Convention of the Rights of the Child (CRC) and article 24(1) of the International Covenant on Civil and Political Rights (ICCPR).

Under the CRC, countries are required to apply the principle of best interests of the child. The principle applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and wellbeing, as well as measures to support and assist parents and others who have day - to - day responsibility for ensuring recognition of children's rights.

Countries are also required under the CRC to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child and to provide appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities, in particular to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible. Countries should ensure that parents and legal guardians are aware of their rights to access information on payments and services to which they are entitled to for the benefit of children.

The Schedule does not limit the rights of parents and children. DPOs will apply to targeted debtors of social welfare payments with outstanding debts, where there are not arrangements satisfactory to the Secretary in place to repay the debt. To ensure all debtors are treated consistently and fairly, DPOs will also apply to those in receipt of only child care assistance and/or payment under the Paid Parental Leave Act 2010 with outstanding debts. These debtors are not subject to deductions from their payment and should be required to enter into an acceptable repayment arrangement to repay the debt as with other debtors.

A debt only arises where a person receives a payment to which they were not entitled. DPOs are intended as an incentive for debtors to repay debts in a timely fashion and is only applied where the debtor does not have an arrangement satisfactory to the Secretary in place to repay the debt. DPOs will not limit the rights of parents and children.

The removal of the limitations on the recovery of debt where recovery action has not been undertaken in the preceding six years will allow recovery of debt older that would have otherwise aged out of scope of the Commonwealth’s capacity to recover the debt by involuntary means. This provision will align social welfare debt recovery with other government agencies involved in the recovery of Commonwealth debt where there is no such limitation. This provision does not impinge on the rights of parents or children.

Right to maternity leave

The Schedule engages the right to maternity leave contained in contained in article 10(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). 

The right to maternity leave includes an entitlement for working mothers to paid leave or social security benefits during a reasonable period before and after childbirth. It also requires countries, as a measure of prevention of discrimination against women, to provide maternity leave with pay or with comparable social benefits without loss of former employment or seniority.

The Schedule does not limit the right to maternity leave. DPOs will apply to targeted debtors of social welfare payments with outstanding debts, where there is not an arrangement satisfactory to the Secretary in place to repay the debt. To ensure all debtors are treated consistently and fairly, DPOs will also apply to those in receipt of only child care assistance and/or payments under the Paid Parental Leave Act 2010 with outstanding debts. These debtors are not subject to deductions from their payment and should be required to enter into an acceptable repayment arrangement to repay the debt as with other debtors.

A debt only arises where a person receives a payment to which they were not entitled. DPOs are intended as an incentive for debtors to repay debts in a timely fashion and is only applied where the debtor does not have an arrangement satisfactory to the Secretary in place to repay the debt. DPOs will not limit the right to maternity leave.

The removal of the limitations on the recovery of debt where recovery action has not been undertaken in the preceding six years will allow recovery of debt older that would have otherwise aged out of scope of the Commonwealth’s capacity to recover the debt by involuntary means. This provision will align social welfare debt recovery with other government agencies involved in the recovery of Commonwealth debt where there is no such limitation. This provision does not impinge on the right to maternity leave.

Rights of people with disability

The Schedule engages the rights of people with disability contained in the Convention on the Rights of Persons with Disabilities .

In particular, to ensure that people with disability have the same right as others to live, take part and be included in the community, article 19 states that countries take appropriate steps to ensure that people with disability have the opportunity to choose where they live and who they live with, have access to in-home, residential and other community support services to help them be included in the community and prevent them from being isolated, and to ensure that they have equal access to community services and facilities that are available to the public.

Article 26 (1) states that parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.

The Schedule does not limit the rights of people with disability. DPOs will apply to targeted debtors of social welfare payments with outstanding debts, where there is no arrangement satisfactory to the Secretary in place to repay the debt (this includes carer payments and the Disability Support Pension). A debt only arises where a person receives a payment to which they were not entitled. DPOs are intended as an incentive for debtors to repay debts in a timely fashion and is only applied where the debtor does not have a satisfactory arrangement in place to repay the debt. DPOs will not limit the rights of people with disability.

The removal of the limitations on the recovery of debt where recovery action has not been undertaken in the preceding six years will allow recovery of debt older that would have otherwise aged out of scope of the Commonwealth’s capacity to recover the debt by involuntary means. This provision will align social welfare debt recovery with other government agencies involved in the recovery of Commonwealth debt where there is no such limitation. This provision does not impinge on the rights of people with disability including the same rights as others to live, take part and be included in the community.

Right to work and rights in work

The Schedule engages the right to work and rights in work contained in articles 6(1), 7 and 8(1)(a) of the ICESCR.

In particular, article 6(1) recognises the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts and states that countries must have specialised services to assist and support individuals in order to enable them to identify and access available employment. 

The Schedule does not limit the right to seek or undertake work and work rights within Australia. DPOs will apply to targeted debtors of social welfare payments with outstanding debts, where there is no arrangement satisfactory to the Secretary in place to repay the debt (this includes working age payments). A debt only arises where a person receives a payment to which they were not entitled. DPOs are intended as an incentive for debtors to repay debts in a timely fashion and is only applied where the debtor has no arrangement satisfactory to the Secretary in place to repay the debt. DPOs will not limit the debtor’s right to work and rights in work in Australia. 

DPOs may limit the debtor’s right to depart the country to undertake work. In these cases, the debtor can enter into acceptable repayment arrangements where they have the financial capacity to do so on the basis of part of the income to be earned from that overseas employment can be sent to Australia to repay their debt, and departure can be facilitated through a DAC or revocation of the DPO to enable the person to depart Australia and undertake employment overseas.

The removal of the limitations on the recovery of debt where recovery action has not been undertaken in the preceding six years will allow recovery of debt older that would have otherwise aged out of scope of the Commonwealth’s capacity to recover the debt by involuntary means. This provision will align social welfare debt recovery with other government agencies involved in the recovery of Commonwealth debt where there is no such limitation. This provision does not impinge on the right of persons to seek or undertake work, or work rights, within Australia.

Right to education

The Schedule engages the right to education contained in Article 13 of the ICESCR.

In particular, article 13(2)(b) states that secondary education, in all its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means and, in particular, by the progressive introduction of free education.

The Schedule does not limit the right to education. DPOs will apply to targeted debtors of social welfare payments with outstanding debts, who are unwilling to enter into acceptable repayment arrangements (this includes student payments). A debt only arises where a person receives a payment to which they were not entitled. DPOs are intended as an incentive for debtors to repay debts in a timely fashion and are only applied where the debtor does not have arrangements satisfactory to the Secretary in place to repay the debt. DPOs will not limit the debtor’s ability to access education. 

A DPO may prevent a person departing Australia to undertake education where they have an outstanding social welfare payment debt and they have not entered into acceptable repayment arrangements where they have the financial capacity to do so. Careful examination of whether the person has capacity to enter into an arrangement for repayment, or where it is determined they have no capacity to repay the debt while a student but they will be returning to Australia within a set or known period, travel may be permitted and the debt pursued once the person returns to Australia. 

A DPO will not be issued by the Secretary for people with a Higher Education Loan Programme debt (that is, HECS-HELP, FEE-HELP, VET FEE-HELP) or Student Financial Supplement Scheme debt.

Therefore, the Schedule will not impinge on the right of a person to an education within Australia, and may not necessarily prevent a person seeking an education outside of Australia.

The removal of the limitations on the recovery of debt where recovery action has not been undertaken in the preceding six years will allow recovery of debt older that would have otherwise aged out of scope of the Commonwealth’s capacity to recover the debt by involuntary means. This provision will align social welfare debt recovery with other government agencies involved in the recovery of Commonwealth debt where there is no such limitation.  This provision does not impinge on the right of a person to an education within Australia.

Right to social security

The Schedule engages the right to social security contained in article 9 of the ICESCR.

The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.

The United Nations Committee on Economic, Cultural and Social Rights (the Committee) has stated that a social security scheme should be sustainable and that the conditions for benefits must be reasonable, proportionate and transparent (see General Comment No.19).

Article 4 of ICESCR provides that countries may limit the rights such as to social security in a way determined by law only in so far as this may be compatible with the nature of the rights contained within the ICESCR and solely for the purpose of promoting the general welfare in a democratic society. Such a limitation must be proportionate to the objective to be achieved.

DPOs will apply to targeted debtors of social welfare payments with outstanding debts, where there is no arrangement satisfactory to the Secretary in place to repay the debt. A debt only arises where a person receives a payment to which they were not entitled. 

Targeted debtors who are no longer eligible to receive financial support through social security or family assistance are more likely to have the financial capacity to make repayments on any outstanding debt than those in receipt of social welfare payments. In addition a debtor’s financial capacity will be taken into account before a repayment arrangement is agreed to. Given this, the impact of DPOs will be limited and will have a very marginal effect on the ability of a person to cover essential living costs, thereby engaging a person’s right to social security. The provisions in the Schedule are therefore unlikely to limit this right, given the appropriate safeguards put in place to protect it. 

It is intended that the provisions in the Schedule will allow the efficient recovery of social welfare payments, supporting effective and efficient administration of the social security system. This measure is proportionate in achieving this policy objective as all people can avoid a DPO being issued by entering into a satisfactory repayment arrangement, and these rights are safeguarded by the requirements of notice and periods of time in which a person will be able to pay back the debt or enter into an arrangement. Furthermore, the Secretary will have the discretion in appropriate circumstances, for example in humanitarian cases, to issue a DAC to enable a person to travel in spite of having a DPO in force.

By allowing the efficient recovery of social security payments, the Schedule ensures the financial sustainability of the social security system. DPOs, as they apply to people who receive social welfare payments to which they are not entitled, are a reasonable condition on the benefits of the system as it encourages recipients to repay those amounts and ensures that the Commonwealth is able to recover the value of these amounts. DPOs, as a condition, are also transparent as they are provided for in legislation, will be communicated through the Department of Human Service’s website, and can only be applied after the recipient is given notice. This ensures that all stakeholders will be informed of how DPOs will operate before they are applied to debtors. 

Therefore, the Schedule will be compatible with the right to social security as the potential limitation on this right is proportionate to the policy objective and intended to improve the administration of the social security system.

The removal of the limitations on the recovery of debt where recovery action has not been undertaken in the preceding six years will allow recovery of debt older that would have otherwise aged out of scope of the Commonwealth’s capacity to recover the debt by involuntary means. This provision will align social welfare debt recovery with other government agencies involved in the recovery of Commonwealth debt where there is no such limitation. This provision does not impinge on the right of persons to access social security to provide a minimum standard of living.

Right to an adequate standard of living, including food, water and housing

The Schedule engages the right to an adequate standard of living, including food, water and housing, contained in article 11 of the ICESCR. The right to an adequate standard of living, including food, water and housing provides that everyone is entitled to adequate food, clothing and housing and to the continuous improvement of living conditions.

To the extent that there is an impact on a person’s right to an adequate standard of living, including food, water and housing, by virtue of the Schedule, the impact is limited.

It is intended that the provisions will allow the efficient recovery of social welfare payment debts, which will ultimately improve the efficacy of the social security system. This measure is proportionate in achieving this policy objective as DPOs will only targeted debtors who are no longer eligible to receive financial support through social security or family assistance payments and debtors can avoid DPOs being issued by entering into a satisfactory repayment arrangement. 

To ensure all debtors are treated consistently and fairly, DPOs will also apply to those in receipt of only child care assistance and/or payments under the Paid Parental Leave Act 2010 with outstanding debts. These debtors are not subject to deductions from their payment and should be required to enter into an acceptable repayment arrangement to repay the debt as with other debtors.

A debtor’s rights are safeguarded by the requirements of notice and periods of time in which a person will be able to repay the debt or enter into an arrangement. In addition, a debtor’s financial capacity will be taken into account before a repayment arrangement is agreed to. The Secretary may also revoke a DPO if the person no longer has any debts to the Commonwealth, or there are arrangements satisfactory to the Secretary for the one or more debts the person has to the Commonwealth to be wholly paid, or the Secretary is satisfied that the one or more debts the person has to the Commonwealth are completely irrecoverable.

Furthermore, by allowing the efficient recovery of social security payments, the Schedule ensures the financial sustainability of the social security system. DPOs, as they apply to people who received social welfare payments to which they are not entitled, are a reasonable condition on the benefits of the system as they encourage recipients to repay those payments and ensure that the Commonwealth is able to recover the value of these amounts. DPOs are also transparent as they are provided for in legislation, will be communicated through the Department of Human Service’s website, and can only be applied after the recipient is given written notice. This ensures that all stakeholders will be informed of how DPOs will operate before they are applied.

Therefore, the Schedule will be compatible with the right an adequate standard of living as the potential limitations on this right are proportionate to the policy objective and are intended to improve the administration of the social security system.

The removal of the limitations on the recovery of debt where recovery action has not been undertaken in the preceding six years will allow recovery of debt older that would have otherwise aged out of scope of the Commonwealth’s capacity to recover the debt by involuntary means. This provision will align social welfare debt recovery with other government agencies involved in the recovery of Commonwealth debt where there is no such limitation. This provision does not impinge on the right of persons to an adequate standard of living, including food, water and housing.

Right to equality and non-discrimination

To avoid doubt, the Schedule does not engage the right to equality and non-discrimination contained in articles 2 and 26 of the ICCPR either on the basis of race or ‘other’ status.

Article 2(1) of the ICCPR obligates each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognised in the Covenant without distinction of any kind, such as race , colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status [7] .

Article 26 not only entitles all persons to equality before the law as well as equal protection of the law, but also prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status [8] .

It is important to note, however, that not all differential treatment will be considered discriminatory. The Committee on Economic, Social and Cultural Rights has provided the following commentary on when differential treatment will be considered discriminatory:

•        Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the Covenant rights and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realised and the measures or omissions and their effects. A failure to remove differential treatment on the basis of a lack of available resources is not an objective and reasonable justification unless every effort has been made to use all resources that are at the State party’s disposition in an effort to address and eliminate the discrimination, as a matter of priority [9] .

Discrimination on the basis of race

The Schedule will apply DPOs to all social security debts including ABSTUDY payments, which supports Indigenous Australians. However, there is no differential treatment on the basis of race as DPOs will apply equally to all debtors.

For these reasons, the Schedule will not engage the right of equality and non-discrimination.

Discrimination on the basis of ‘other status’

The Schedule applies DPOs to targeted debtors of social welfare payment recipients with outstanding debts, rather than all customers with outstanding debts.

This will not limit the right to equality and non-discrimination as the differential treatment is for a reasonable and objective purpose.

In most circumstances, current recipients of social welfare payments with debts have their payments reduced until their debts are repaid. By comparison, targeted debtors who are no longer dependent on the social security system, have little incentive to repay their debts and may actively avoid repayment.

Debtors who are no longer eligible to receive financial support through social welfare payments are more likely to have the financial capacity to make repayments than those in receipt of income support or family assistance.

The introduction of DPOs will ensure that people who are targeted debtors of social welfare payments do not receive an unfair advantage over those current recipients of social welfare payments who are subject to compulsory withholdings from their ongoing payments.

To ensure all debtors are treated consistently and fairly, DPOs will also apply to those in receipt of only child care assistance and/or payments under the Paid Parental Leave Act 2010 with outstanding debts. These debtors are not subject to deductions from their social welfare payment and should be required to enter into an acceptable repayment arrangement to repay the debt as with other debtors.

It is therefore reasonable and objective to apply a DPO to debts with respect to targeted debtors of social welfare payments to ensure that people with a debt repay the outstanding amount in a timely fashion. 

The removal of the limitations on the recovery of debt where recovery action has not been undertaken in the preceding six years will allow recovery of debt older that would have otherwise aged out of scope of the Commonwealth’s capacity to recover the debt by involuntary means. This provision will align social welfare debt recovery with other government agencies involved in the recovery of Commonwealth debt where there is no such limitation. This provision does not impinge on the right of persons to equality and non-discrimination.

For these reasons, the Schedule will not engage the right of equality and non-discrimination .

Conclusion

This Schedule is compatible with human rights. To the extent that it may have limited adverse impact on a person’s access to education, social security, an adequate standard of living or the right to equality and non-discrimination, the limitation is reasonable, proportionate to the policy objective and for legitimate reasons.

 



Chapter 14      

Parental leave payments

Outline of chapter

Schedule 14 to the « Bill » introduces the 2015-16 Mid-Year Economic and Fiscal Outlook measure, Commonwealth Parental Leave Payments - consistent treatment for income support assessment.

This measure will amend the social security and veterans’ entitlements legislation to ensure Commonwealth parental leave payments and dad and partner pay payments under the Paid Parental Leave Act 2010 are included in the income test for Commonwealth income support payments.

Background

The measure is consistent with the treatment of employer-provided parental leave payments as income for income support payments, and parental leave pay and dad and partner pay as income for family tax benefit and taxation purposes.

This Schedule implements this announced change. It also makes consequential amendments to the Paid Parental Leave Act to allow the Secretary to make deductions from a person’s instalments of parental leave pay where the payment of one or more instalments of parental leave pay would result in an overpayment of an income support payment. It also makes consequential amendments to the Paid Parental Leave Act to allow the Secretary to make deductions from a person’s dad and partner pay where the payment of an amount of dad and partner pay could result in an overpayment of an income support payment.

The amendments made by this Schedule commence on the first 1 January, 1 April, 1 July or 1 October that occurs after the day the Act receives Royal Assent.

Explanation of the changes

Part 1 - Parental leave pay and dad and partner pay to count as income

Item 1 adds paragraphs 8(1A)(h) and (i) to the end of subsection 8(1A) of the Social Security Act 1991 , consequential to the main amendment at item 2. The effect of this is to clarify that instalments of parental leave pay and dad and partner pay are not be treated as employment income for the purposes of the Social Security Act.

Subsection 8(1A) currently excludes a range of income sources from the definition of employment income. As a result of the changes made by item 1 to subsection 8(8), which include instalments of parental leave pay and dad and partner pay in the definition of income, it is necessary to amend subsection 8(1A) to ensure that this change to subsection 8(8) won’t result in these payments being treated as employment income for social security purposes.

This amendment will ensure greater alignment between the definitions of employment income in the Social Security Act and Veterans’ Entitlements Act 1986 .

Item 2 repeals paragraphs 8(8)(d) and (da) of the Social Security Act. 

Section 8 of the Social Security Act provides a broad definition of income for social security means testing purposes. Subsection 8(8) excludes specified amounts from the definition of income.

The effect of this repeal is that instalments of parental leave pay and dad and partner pay will be assessed as income for the purposes of section 8 of the Social Security Act and hence for the purposes of the income means testing arrangements under the Social Security Act.

It should be noted that Part 5 of the Farm Household Support Act applies the means testing arrangements in section 8 of the Social Security Act to farm household allowance recipients and applicants.

Item 3 repeals paragraphs 5H(8)(d) and (da) of the Veterans’ Entitlements Act. The effect of this repeal is to treat instalments of parental leave pay and dad and partner pay as income for the purposes of section 5H of the Veterans’ Entitlements Act and hence for the purposes of income means testing arrangements under the Veterans’ Entitlements Act.

Item 4 is an application provision for the amendments in Part 1 of this Schedule. Item 4 provides that the amendments made by Part 1 apply in relation to an instalment of parental leave pay, or to dad and partner pay, that is paid on or after the commencement of this item in respect of a claim for a child:

a)  who is born on or after that commencement; or

b)  who becomes entrusted to the care of a person (as mentioned in subsection 275(2) of the Paid Parental Leave Act) on or after that commencement;

whether the claim was made before, on or after that commencement.

Part 2 -Parental leave pay and dad and partner pay deductions to avoid overpayments

Item 5 inserts a definition of income support payment into section 6 of the Paid Parental Leave Act.

Income support payment is given the same meaning as in the Social Security Act, where the term is defined in section 23. It includes a social security benefit or pension, and a service pension under the Veterans’ Entitlements Act.

Subsection 91(3) of the Farm Household Support Act applies to modify the reference to income support payment in section 23 of the Social Security Act to include a reference to farm household allowance. The amendments made by this Schedule would therefore apply in circumstances where a person has received farm household allowance and an instalment of parental leave pay for the same period.

Item 6 makes a consequential amendment to subsection 66(2) of the Paid Parental Leave Act, which provides for the protection of instalments of parental leave pay, to include a reference to the new deduction provision in new section 69A of the Paid Parental Leave Act, inserted by item 7. Item 11 makes an identical amendment to section 115EG(2) for dad and partner pay.

Item 7 inserts new section 69A into the Paid Parental Leave Act. Section 69A authorises the Secretary to deduct an amount or amounts from a person’s instalments of parental leave pay where the Secretary is satisfied that the payment of the person’s instalments, if taken into account for the relevant periods, would have resulted in a lesser rate of payment to the person of their income support payment.

Section 69A applies if:

a)  a payability determination that parental leave pay is payable to a person is made; and

b)  an instalment for an instalment period becomes payable to the person on a particular day by the Secretary; and

c)  before that day, the person was paid an amount of income support payment in for a period that falls within, or overlap with, the instalment period; and

d)  the Secretary is satisfied that the amount of income support payment so paid exceeds the amount of the income support payment that would have been payable to the person for the income support period under that law or Act had the instalment been taken into account when working out the amount of income support payment payable to the person for that period under that law or Act;

If the Secretary is satisfied that these preconditions have all been met, the Secretary may deduct from the instalment of parental leave pay an amount equal to the excess.

A note to the provision alerts the reader that a person’s income is taken into account when working out the amount of income support payment that is payable to the person under the social security law or the Veterans’ Entitlements Act. An instalment is income so payment of an instalment may reduce the amount of income support payment that is payable to the person.

Having been taken into account under the Paid Parental Leave Act, the instalment of parental leave pay would not then be taken into account again under the social security law or Veterans’ Entitlements Act for the relevant period.

However, ongoing instalments of parental leave pay (or potentially payment of dad and partner pay) may result in the Secretary suspending payment of the person’s (and/or their partner’s) income support payment until the end of the PPL or DAPP period where the person’s (and/or their partner’s) rate of income support payment is reduced to nil.

Item 12 inserts new section 115EI in the same terms for dad and partner pay.

Item 8 makes a consequential amendment to subsection 70(1) of the Paid Parental Leave Act which limits deductions that may be made from instalments of parental leave pay, to include a reference to the deduction provision in new section 69A of the Paid Parental Leave Act, inserted by item 7. Item 13 makes a similar amendment to section 115EJ for dad and partner pay.

Item 9 amends section 101 of the Paid Parental Leave Act to insert new subsection 101(3A). The effect of this new subsection is that the Secretary must not make an employer determination for a person and the person’s employer if the person is receiving an income support payment.

New subsection 101(3A) has been inserted to ensure that the Secretary can, where appropriate, apply section 69A of the Paid Parental Leave Act to make a deduction from one or more of a person’s instalments of parental leave pay. Section 69A only applies in relation to payments of parental leave pay made by the Secretary and does not apply to payments made under an employer determination.

Item 10 amends subsection 108(1) of the Paid Parental Leave Act to insert new item 2A into the table contained in this subsection. The effect of new item 2A is that the Secretary must revoke an employer determination made for a person and the person’s employer if the person is receiving an income support payment. The employer determination may have been made at a time the person was not receiving an income support payment.

The amendments to subsection 108(1) are intended to ensure that the Secretary can, where appropriate, apply section 69A of the Paid Parental Leave Act to make a deduction from a person’s instalment of parental leave pay. Section 69A only applies in relation to payments of parental leave pay made by the Secretary and does not apply to payments made under an employer determination.

Item 14 sets out application provisions for new section 69A, new subsection 101(3A), the amendments to subsection 108(1) and new section 115EI of the Paid Parental Leave Act.

The application provision for new section 69A provides that:

1)            Paragraph 69A(a) of the Paid Parental Leave Act applies in relation to a payability determination that is made on or after the commencement of this item.

2)            Paragraph 69A(b) of the Paid Parental Leave Act applies in relation to an instalment of parental leave pay that is payable on or after the commencement of this item in respect of a claim for a child:

a)  who is born on or after that commencement; or

b)  who becomes entrusted to the care of a person (as mentioned in subsection 275(2) of the Paid Parental Leave Act) on or after that commencement;

whether the claim was made before, on or after that commencement.

The application provision for new subsection 101(3A) of the Paid Parental Leave Act provides that the new subsection applies in relation to claims made on or after the commencement of this item.

The application provision for the amendment of subsection 108(1) provides that the amendment applies in relation to an employer determination made before, on or after the commencement of this item, where the claim was for a child:

a)  who was born on or after that commencement; or

b)  who became entrusted to the care of a person (as mentioned in subsection 275(2) of the Paid Parental Leave Act) on or after that commencement;

whether the claim was made before, on or after that commencement.

The application provision for new section 115EI provides that:

1)            Paragraph 115EI(a) of the Paid Parental Leave Act applies in relation to a payability determination that is made on or after the commencement of this item.

2)            Paragraph 115EI(b) of the Paid Parental Leave Act applies in relation to an amount of dad and partner pay that is to be paid on or after the commencement of this item in respect of a claim for a child:

a)  who is born on or after that commencement; or

b)  who becomes entrusted to the care of a person (as mentioned in subsection 275(2) of the Paid Parental Leave Act) on or after that commencement;

whether the claim was made before, on or after that commencement.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Parental leave payments

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview

The Social Services Legislation Amendment (Consistent Treatment of Parental Leave Payments) « Bill » 2016 makes changes to income support legislation to include income from Parental Leave Pay (PLP) and Dad and Partner Pay (DAPP) in the assessments for income support payments.

Currently, PLP and DAPP recipients can receive the full rate of an income support payment at the same time as PLP or DAPP. Under this measure, changes will be made to the social security and veterans’ entitlements legislation to ensure PLP and DAPP payments are included in the income test for income support payments, thereby treating income from PLP or DAPP consistently with the treatment of income from other sources.

The Schedule also introduces a minor provision in the Paid Parental Leave (PPL) legislation to allow the Secretary to reduce a PLP instalment or an amount of DAPP to offset a potential overpayment of an income support payment. This provision would be used where an income support overpayment could arise as a result of a recipient receiving the full arrears payment of PLP or DAPP for a period when they received an income support payment.

Another minor amendment removes the employer role where a PLP recipient is receiving an income support payment at the time their PLP is granted. The Department of Human Services will be the paymaster for a PLP recipient who is receiving income support payments. This change will ensure that PLP payments to income support recipients are paid promptly and not delayed because of the timing of the employer’s payroll.

Human rights implications

The Schedule engages the following human rights:

 

Right to social security

Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right of everyone to social security. This right requires a social security system to be established and that States Parties must, within their maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education. 

These changes to income support legislation will limit the right to social security for 11,000 income support recipients who receive PLP or DAPP.  Of these customers, 5,000 will experience a partial loss of the income support payments, and 6,000 will experience a total loss of their income support payment, creating a saving to government of $105.1 million over the forward estimates.

The changes will make it fairer for all working mothers to have access to a consistent level of government support. This measure levels the playing field amongst income support recipients by treating all types of income similarly, irrespective of the source of that income.

The income test for pensions and allowances includes free areas which allow people to receive an amount of income before their payments are reduced. Where a person’s income exceeds the free area, payments are reduced proportionally. This means pension and allowance recipients are always better off when receiving additional income such as PLP and DAPP. Income support payment recipients will continue to be able to access parenting payments such as Family Assistance and Child Care assistance if they meet the eligibility criteria.

These changes will ensure that income support payments are fairer and better targeted, and will help ensure the income support system is sustainable into the future. Improving the long-term sustainability of the income support system is important to ensure the income support system will continue to provide an adequate level of support to those in need over the long term.

The minor amendment to remove the employer role for PLP recipients receiving income support payments is intended to help customers receive PLP promptly without any delays, avoiding an income support customer being left without an income for the usual processing period of employer payments.

Right to equality and non-discrimination

Article 3 of the ICESCR seeks to ensure the right of both men and women to the enjoyment of all economic, social, and cultural rights set forth within the convention. 

As mentioned above, the changes to income support legislation will make it fairer for all working mothers to have access to a consistent level of government support. This measure levels the playing field amongst income support recipients by treating all types of income similarly, irrespective of the source of that income. The measure engages the right to equality and non-discrimination, but does not limit the right.

Right to work and maternity leave

Article 7 of the ICESCR recognises the right of everyone to the enjoyment of just and favourable conditions of work. This Article seeks to ensure fair and equal wages and « remuneration » , safe and healthy working conditions, equal opportunity for promotion in the workplace, and adequate access to rest, leisure, and periodic paid leave.

Article 10(2) of the ICESCR states that, ‘Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such a period working mothers should be accorded paid leave or leave with adequate social security benefit.’

In addition, Article 11 (2)(b) of the Convention to Eliminate All Forms of Discrimination Against Women requires States Parties ‘to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances’.

The changes detailed in this Schedule preserve the right to PLP for eligible primary carers, only changing how this payment is treated for assessing income support payments. The changes do not interfere with the existing rights under the Fair Work Act 2009 to access 12 months of unpaid parental leave without loss of employment or seniority within the workplace, leaving the key protection against discrimination in place.

Conclusion

This Schedule is compatible with human rights and, to the extent that it may limit certain human rights, those limitations are reasonable, necessary and proportionate.

 



Chapter 15      

Fringe benefits

Outline of chapter

Schedule 15 to the « Bill » changes the way in which fringe benefits are treated under the income tests for family assistance and youth income support payments and for other related purposes.   The changes are also relevant for a number of income tax provisions.  The meaning of ‘adjusted fringe benefits total’ is modified so that the gross rather than adjusted net value of reportable fringe benefits is used, except in relation to fringe benefits received by individuals working for public benevolent institutions, health promotion charities and some hospitals and public ambulance services.

These changes commence on the first 1 January or 1 July 2017 after the day on which this Act receives the Royal Assent.

Background

Family Assistance

Schedule 17 to the Family Assistance Act defines adjusted taxable income (ATI). ATI has relevance for family tax benefit, stillborn baby payment and child care benefit.

Clause 2 of Schedule 17 lists the components of ATI, one of which is an individual’s adjusted fringe benefits total. Clause 4 defines adjusted fringe benefits total by reference to a formula that draws on concepts in the Fringe Benefits Tax Act 1986 and the FBT Assessment Act. Under the formula:

•        adjusted fringe benefits total = reportable fringe benefits total x (1-FBT rate).

A reportable fringe benefit total is the grossed up value of the fringe benefit (as worked in accordance with Part X1B of the FBT Assessment Act).

Under the current definition, the net value of fringe benefits used is 51% for 2016-17 (the FBT rate being 49% for the fringe benefit year ending 31 March 2017).

This Schedule modifies the calculation of adjusted fringe benefits total. There will be two methods for calculating the fringe benefits component of an individual’s ATI, depending on the nature of the fringe benefit. The treatment of fringe benefits that are provided by an employer described in section 57A of the FBT Assessment Act (i.e., public benevolent institutions, health promotion charities and some hospitals and public ambulance services) will not change (although the language of the provision is changing to more closely align with relevant tax law). It is estimated that 65 per cent of individuals with reportable fringe benefits will have their benefits worked out under this method. Otherwise, the gross value of reportable fringe benefits would be used.

The family assistance definition of ATI is adopted in the income test provisions for parental leave pay and dad and partner pay under the Paid Parental Leave Act 2010 (see sections 37, 38 and 115CG of that Act).  It follows that any change to the family assistance calculation of ATI would flow through to the Paid Parental Leave Act 2010 .

Taxation

The calculation of ATI in the Family Assistance Act is also relevant in working out whether an individual is entitled to a low income superannuation contribution payment, a net medical expenses offset, and the dependant (invalid and carer) tax offset. It may also affect the amount of offset for residents of isolated areas (Zone tax offset), members of defence forces serving overseas and certain persons serving with an armed force under the control of the United Nations serving overseas, with certain dependants.

Subsection 6(1) of the Income Tax Assessment Act 1936 defines the term adjusted fringe benefits total which is consistent with the family assistance definition. This term is used in the definition of rebate income for the purposes of the rebate provided for low income aged persons and pensioners.

This Schedule amends the definition of adjusted fringe benefits total in subsection 6(1) so that it remains consistent with the new family assistance definition.

Social Security

Point 1067G-F10 defines combined parental income for the purposes of the parental income test for youth allowance. This definition includes the parent’s adjusted fringe benefit total for the relevant year. Subpoint 1067G-F11(2) then defines adjusted fringe benefits total , consistent with the family assistance definition.

The « Bill » amends this definition of adjusted fringe benefits total so that it remains consistent with the new family assistance definition.

ABSTUDY is an administrative scheme that adopts similar rules and concepts to those that apply in relation to youth allowance, including the parental income test.  Any changes to the components of income which are relevant under the youth allowance parental income test will therefore also affect ABSTUDY. The intention is to change the ABSTUDY guidelines to maintain this consistency.

The Assistance for Isolated children Scheme is also an administrative scheme that provides payments in respect of children who cannot go to a state school because of geographical location, disability or special health needs. The additional boarding allowance component of this payment is subject to a similar parental income test to youth allowance (and ABSTUDY). The proposed change to the treatment of fringe benefits will also be reflected in the guidelines for this scheme.

Explanation of the changes

A New Tax System (Family Assistance) Act 1999

Clause 4 of Schedule 3 to the Family Assistance Act defines adjusted fringe benefit total. Item 1 repeals this definition and replaces it with a new definition.

New clause 4 provides that an individual’s adjusted fringe benefits total is the sum of their section 57A employer fringe benefits total and other employer fringe benefits total.

The meaning of other employer fringe benefits total and section 57A employer fringe benefits total are then defined. Other employer fringe benefits total is the sum of each of the individual’s reportable fringe benefits amounts for the income year under section 135P and section 135Q (to the extent that section relates to the individual’s employment by an employer described by section 58) of the FBT Assessment Act Section 57A employer fringe benefits total is the sum of each of the individual’s quasi-fringe benefits amounts received by an employer under section 135Q of the Fringe Benefits Tax Assessment Act 1986 to the extent that section relates to an employer described under section 57A of that Act. 

Income Tax Assessment Act 1936

Item 2 repeals the definition of adjusted fringe benefits total in subsection 6(1) of the Income Tax Assessment Act 1936 and substitutes a new definition. The existing definition is aligned with the definition in the Family Assistance Act. To ensure ongoing consistency, the new definition of adjusted fringe benefits total in subsection 6(1) has the meaning given by clause 4 of Schedule 3 to the Family Assistance Act.

Item 3 makes a consequential change to repeal the definition of reportable fringe benefits total (which is not required for the new definition inserted by item 2).

Social Security Act 1991

Subpoint 1067G-F11(2) of the Social Security Act defines adjusted fringe benefits total , consistent with the family assistance definition.

Item 4 repeals this subpoint and substitutes a new definition, consistent with the new family assistance definition described above.

Application provisions

Item 5 provides for the application of the amendments made by Schedule 1 which redefined adjusted fringe benefit total. 

Subitem 5(1) provides that the amendments apply in working out an individual’s rate of family tax benefit for days on or after commencement.

Subitem 5(2) provides that the amendments apply in working out an individual’s rate of child care benefit for days on or after the first Monday on or after commencement, to align with the child care benefit concept of ‘week’ which commences on a Monday. 

Subitem 5(3) provides that the amendments apply in working out an individual’s eligibility for stillborn baby payment for a child delivered on or after commencement.

Subitem 5(4) provides that the amendments apply in relation to a claim for parental leave pay or dad and partner pay for a child who is born or entrusted to care on or after commencement irrespective of when the claim is made.

Subitem 5(5) provides that the amendments apply in working out the rate of youth allowance for days on or after commencement.

Subitem 5(6) provides that the amendments do not apply in working out a person’s qualification for a low income supplement. The low income supplement is an annual payment that is repealed from 1 July 2017.

Subitem 5(7) provides that the amendments do not apply in working out whether a low income superannuation contribution is payable for 2016-17 or earlier income years. The low income superannuation contribution is to be repealed from 1 July 2017.

Subitem 5(8) provides that the amendments apply in working out whether a taxpayer is entitled to a rebate for medical expenses, and the amount of the rebate, in respect of the income year beginning on or after commencement. 

Subitem 5(9) provides that the amendments apply in working out whether a taxpayer is entitled to a rebate for low income aged persons and pensioners in respect of the income year beginning on or after commencement.

Subitem 5(10) provides that the amendments apply in working out whether a trustee is entitled to a rebate for low income aged persons and pensioners in respect of the income year beginning on or after commencement.

Subitem 5(11) provides that the amendments apply in working out whether an individual is entitled to a dependant (invalid and carer) tax offset, and the amount of the offset, for an income year beginning on or after commencement.

Subitem 5(12) provides that the amendment apply in working out the amount of an  individual’s dependant (non-student child under 21 or student) notional tax offset for an income year beginning on or after commencement.  This may have an impact on the amount of a taxpayer’s entitlement to a zone tax offset and overseas forces tax offset where they have certain dependants.

S TATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Fringe benefits

Overview                     

This Schedule amends the A New Tax System (Family Assistance) Act 1999 , Social Security Act 1999 and Income Tax Assessment Act 1936 . This Schedule will change how reportable fringe benefits are treated when calculating adjusted taxable income (ATI) for the purposes of income testing family assistance, youth income support payments and certain tax offsets.

Under current rules, the net value of reportable fringe benefits (or 51 per cent) is used to calculate an individual’s ATI. From the first 1 January or 1 July after the « bill » receives the Royal Assent, the gross rather than adjusted net value of reportable fringe benefits will be used to calculate an individual’s ATI, except in relation to fringe benefits which are received by individual’s working for certain not-for-profit organisations.

Fringe benefits received by an individual who is employed by a not for profit institution defined under section 57A of the Fringe Benefits Tax Assessment Act 1986 (public benevolent institutions, health promotion charities and some hospitals and public ambulance services) will continue to be assessed under current arrangements.

Affected payments include Family Tax Benefit (FTB) Part A and Part B, Child Care Benefit (CCB), Parental Leave Pay, Dad and Partner Pay, Stillborn Baby Payment, Youth Allowance, and payments under the ABSTUDY scheme and Assistance for Isolated Children scheme.

The new treatment of reportable fringe benefits will apply to certain tax offsets. These offsets include the Net Rebate for Medical Expenses, Rebate for Low Income Aged Persons and Pensioners, Dependant (Invalid and Carer) Tax Offset and Dependant (non-student child under 21 or student) Notional Tax Offset.

The Low Income Supplement and Low Income Superannuation Contribution Supplement both use ATI to calculate entitlement; however, both will cease from 1 July 2017 and are not affected by these amendments.

Human rights implications - family assistance and youth income support

Overview of family assistance and youth income support payments

The Australian Government supports families with the direct and indirect costs of raising dependent children through a number of payments which are subject to parental income testing to determine entitlement. These payments include FTB Part A, FTB Part B, CCB, Youth Allowance, ABSTUDY and Assistance for Isolated Children Additional Boarding Allowance, Parental Leave Pay, Dad and Partner Pay and Stillborn Baby Payment. These payments have the primary objective to ensure all children have access to an acceptable standard of living and/or have a workforce participation focus for eligible families. Stillborn Baby Payment provides some financial assistance to families who have delivered a stillborn baby.

The United Nations Committee on Economic, Cultural and Social Rights has stated that a social security scheme should be sustainable and that the conditions for benefits must be reasonable, proportionate and transparent. This measure will provide for more equitable treatment across the welfare / payment system of income from fringe benefits and achieve the objective of creating savings to ensure the ongoing sustainability of the significant package of assistance provided by the Australian Government to families with dependent children. 

The right to social security and the right to an adequate standard of living:

Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), recognises the right of everyone to benefit from social security.  Article 26 of the Convention on the Rights of the Child (CRC) requires countries to recognise the right of the child to benefit from social security. Benefits should take into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child.

Article 11 of ICESCR recognises the right of everyone to an adequate standard of living for an individual and their family, including adequate food, clothing and housing, and the continuous improvement of living conditions. Article 27 of the CRC recognises that children have the right to a standard of living that is good enough to meet their physical and mental needs.

A family’s ATI is calculated when income testing family payments and youth income support payments to ensure that individuals who receive a tax benefit or concession which lowers their taxable income do not receive a higher rate of payment than a family who has the same overall family income but who makes different investment decisions or receives a different type of income.

This measure will improve the consistency in how income testing rules treat fringe benefits. A fringe benefit is an extra benefit (such as a car, car parking or entertainment) which supplements an employee’s salary. An employer is responsible for paying the tax liability associated with fringe benefits, not the employee.

Under current rules, where a family receives fringe benefits from an employer, the net value of the fringe benefit (51 per cent) is used to calculate their ATI. In practice this means that two families may have the same collective income but the family who receives more of their income in fringe benefits is treated beneficially and may receive a higher rate of government assistance than a family with the same level of income, but whose income is received more in salary. 

For example, on 1 July 2016 a single income family with two children aged under 13 with taxable income of $55,000 and reportable fringe benefits of $5,000 would, under current rules, be eligible for $490 more of FTB Part A than a family with taxable income of $60,000. In addition to the higher rate of FTB Part A, the family with fringe benefits would pay $1,600 less in tax because they do not have a tax liability on their fringe benefits.

The gross value of reportable fringe benefits is currently used in a number of income tests including: child support obligations, Medicare Levy Surcharge, Superannuation Co-Contributions and Higher Education Loan Program and Financial Supplement repayments.

Individuals who work for not-for-profit institutions defined under section 57A of the Fringe Benefits Tax Assessment Act 1986 certain public benevolent institutions, health promotion charities and some hospital and ambulance services) will continue to have net fringe benefit amounts assessed. This will ensure the « Bill » does not impact on the ability of these organisations to attract and retain staff through fringe benefit concessions in lieu of higher salaries. It is estimated that around 65 per cent of affected individuals will continue to have net fringe benefits assessed.

For those individuals who are not eligible to have net fringe benefits assessed, the grossing up of fringe benefits may not impact their entitlement to a payment. Individuals who are eligible for income support are not income tested for the purposes of determining entitlement to FTB Part A, CCB or youth income support payments.  Where a low income individual is subject to income testing but their grossed up income continues to be below the respective payment’s income free area (the lower income free area for FTB Part A is $51,903, youth payments is $51,027 and $44,457 for CCB), they will continue to be eligible for the maximum rate of payment.

This measure will affect families where the gross fringe benefit amount increases their ATI and results in either a reduction in their entitlement (more income is subject to a taper), or they cease to be eligible for payment because their income exceeds the payment’s income cut-out. 

Table 1 provides examples of the income cut outs for different payments and shows that where a recipient ceased to be eligible for a payment under the new income testing rules, they have, in general, a high income and sufficient personal means to maintain an adequate standard of living for their family.

Table 1 - payment income cut-outs as at 1 July 2016

Payment

Income test

Example of family

Income cut-out

FTB Part A

Reduced by 20 cents for every dollar earned above $51,903

One child aged under 13. Nil impact between $68,365 and $94,316 when eligible for the base rate

$101,957

Two children aged under 13. Nil impact between $84,826 and $94,316 when eligible for base rate

$109,598

FTB Part B

 Income limit

Primary earner income test (single and couple families

$100,000

Reduced by 20 cents for every dollar of secondary income above $5,475

Youngest child aged under five

$27,886

Youngest child aged five and over

$21,663

Youth Allowance / ABSTUDY /

Assistance for Isolated Children (AIC) Additional Boarding Allowance (ABA)

Reduced by 20 cents for every dollar earned above $51,027.

FTB children and young people eligible for Youth Allowance, ABSTUDY or AIC Additional Boarding Allowance) are counted in the family income testing pool and reduce the reductions applied to Youth Allowees, ABSTUDY, AIC ABA recipients

Young person aged under 18 (no siblings) living at home

$82,357

Young person aged 18 and over (no siblings) living at home

$88,701

Young person living away from home

$108,253

Two young persons aged under 18 living at home

$113,687

Young person eligible for AIC ABA

$58,692

Child Care Benefit

Taper structure depends on family size and family income.  Lower income free area is $44,457

One child under school age

$154,697

Child Care Rebate

No income test.  Pays 50% out of pocket approved child care costs up to $7,500 per child per year.

 

Not applicable

Parental Leave Pay

Income limit

An individual must have adjusted taxable income in the previous entitlement year less than the income cut-out

$150,000

Dad and Partner Pay

Income limit

An individual must have adjusted taxable income in the previous entitlement year less than the income cut-out

$150,000

Stillborn Baby Payment

Income limit

An individual must have estimated adjusted taxable income of $60,000 or less for the six month period after they deliver a stillborn baby.

$60,000 (estimated)

Right to maternity leave

The right to maternity leave is contained within Article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Article 10(2) of the ICESCR. Article 11(2)(b) of the CEDAW requires States Parties “to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances”. Article 10(2) of the ICESCR states that, “Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such a period working mothers should be accorded paid leave or leave with adequate social security benefits.”

This measure will not affect the ability for parents to claim a minimum entitlement to paid maternity leave, equivalent to 18 weeks of payment at the rate of the national minimum wage, to support them to take time off work after the birth or adoption of their child. Eligible fathers or partners will continue to be eligible to receive two weeks of Dad and Partner Pay at the rate of the national minimum wage in addition to any employer-provided paid paternity leave. However these amendments will ensure that where individuals receiving fringe benefits who currently receive concessional treatment in the calculation of their ATI, have their eligibility for Paid Parental Leave is assessed equitably compared with other individuals whose ATI is derived from other sources.

Rights of parents and children

Article 18 of the CRC mandates that State Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child, and to provide appropriate assistance, in particular to ensure that children of working parents have the right to benefit from child care services and facilities for which they are eligible.

Child Care Benefit and Child Care Rebate (CCR) are child care fee assistance payments provided by the Government to individuals with children enrolled in approved child care, to help meet the costs of child care and assist with maintaining an adequate standard of living for working families. This measure will not directly impact upon, nor limit the right of parents to child care fee assistance to help meet the costs of child care.

As an individual’s ATI is taken into account in determining the amount of entitlement to CCB, to that extent, this measure may affect the amount of CCB calculated for individuals who receive gross fringe benefits. This measure will not affect an individual’s entitlement to CCR as this payment is not income tested. The payment of CCR may offset the impact of any reduction to an individual’s rate of CCB as CCR pays 50 per cent of an individual’s out of pocket costs for child care up to $7,500 per child per year).

This measure will not affect individuals who are on income support as they are exempt from the CCB income test. Where an individual with low income is subject to income testing but their new ATI continues to be below the lower income threshold of $44,457, they will continue to be eligible for the maximum rate of CCB. 

The impact of this measure will be limited to individuals where the inclusion of gross fringe benefits increases their ATI and results in either a reduction in their CCB entitlement, or they cease to be eligible for payment because their income exceeds the CCB income cut-out.  As indicated in Table 1 above, the income threshold at which a recipient with one child under school age ceases to be eligible for CCB is currently $154,697. Individuals who may be affected by this measure due to a higher ATI would generally be higher income earners with sufficient personal means to meet the out of pocket costs of child care for their children, of which 50 per cent is offset through automatic entitlement to CCR (up to $7,500 per child per year).

Any reduction in assistance for individuals are reasonable and proportionate in that they are a consequence of the Government treating income from all sources consistently, and not treating fringe benefits beneficially (unless the fringe benefits is received by certain employers). The impacted population will continue to benefit from concessional tax treatment of their fringe benefits but will no longer be eligible for payment concessions related to this income. In addition, income testing does not apply to CCR so families will continue to be eligible for CCB and / or CCR to meet the costs of child care. This measure will encourage the long-term financial sustainability of the child care payments system.

Conclusion

To the extent that changing the treatment of fringe benefits received by a family limits the right to social security, the right to an adequate standard of living, the right to maternity care and access to child care services and facilities, these limitations are reasonable and proportionate. 

Human rights implications - tax offsets and Low Income Supplement

Overview of relevant tax offsets and Low Income Supplement

The Low Income Supplement and Low Income Superannuation Contribution Supplement will both cease on 1 July 2017. The application provisions within this Schedule ensure this measure does not apply in working out an individual’s qualification for the Low Income Supplement payment or Low Income Superannuation Contribution between 1 January 2017 and 30 June 2017.

The Dependent (Invalid and Carer) Tax Offset (DICTO) is a tax offset for an individual if they do not receive FTB Part B and contribute to the maintenance of their spouse, relative or spouse’s relative, who is genuinely unable to work due to invalidity or carer obligations. The spouse or relative must receive a carer payment or carer allowance, or be wholly engaged in providing care to a relative who is eligible for a Disability Support Pension, Special Needs Disability Pension or an Invalidity Service Pension. 

This measure may affect an individual’s entitlement for DICTO if the new treatment of fringe benefits increases their ATI above $100,000, or increases the dependent’s ATI to above $286.  The rate of DICTO is subject to an income test which reduces the offset of $2,471 by 25 cents for every dollar the dependent earns above $286.  The income cut-out is $10,634.

The Net Medical Expenses Tax Offset is available for individuals with out-of-pocket medical expenses relating to disability aids, attendant care or aged care expenses until 1 July 2019. This measure will affect individuals if the new treatment of fringe benefits increases their ATI to above $90,000 for singles or $180,000 for couples. Where ATI exceeds this income threshold, the individual will still be able to claim a reimbursement of ten per cent for eligible out of pocket expenses incurred in excess of $5,343. If their income stays below these thresholds, they will continue to be able to claim a reimbursement of 20 per cent for net medical expenses over $2,265. 

The Low Income Aged Persons and Pensioners (Senior Australian and Pensioner Tax Offset (SAPTO)) is a tax offset that is available for age and service age pensioners, and self-funded retirees of Age Pension age.  This measure may impact an individual depending on if the new treatment of fringe benefits increases their income above a relevant threshold.  For 2015-16, single persons can receive the maximum rate offset of $2,230 if they have income less than $32,279 and will cease to be eligible if their income increases to above $50,119. For a partnered individual, the partner and their spouse may be eligible for the maximum rate of SAPTO ($1,602) if they each have income less than $28,974 and will cease to be eligible if they have income above $83,580 (or $41,790 each).  The income thresholds and SAPTO rate for a couple increases slightly if they need to live apart due to illness or because a member of the couple lived in a nursing home. 

A Dependent (non-student child under 21 or student) Notional Tax Offset provides a notional tax offset for an income year if an individual contributes to the maintenance of a non-student child or a student dependent.  A Dependent (non-student child under 21 or student) Notional Tax Offset of $376 for the oldest non-student child under 21 dependant or student dependant, and $286 for any other younger dependants can only be taken into account in calculating an individual’s eligibility for a Zone tax offset under section 79A of the Income Tax Assessment Act 1936, for certain persons serving with an armed force under the control of the United Nations under section 23AB of the Income Tax Assessment Act 1936 and members of the Defence Force serving overseas under section 79B of the Income Tax Assessment Act 1936 . The notional tax offset is reduced by 25 cents for every dollar the dependent earns above $286. The dependent income cut-out is $1,770 for the oldest dependent and $1,410 for a younger dependent.

The right to social security and the right to an adequate standard of living:

Tax offsets or rebates directly reduce the amount of tax payable on an individual’s taxable income. The offsets can reduce an individual’s tax payable to zero but on their own do not give a refund.

This measure may affect individuals who will be eligible for a lower amount of offset or cease to be entitled to that offset.  Tax offsets are not provided to secure an individual’s right to social security or to support an adequate standard of living but are available after a financial year to lower the amount of tax an individual is liable to pay in recognition that the individual may have incurred specific costs related to their circumstances.

This measure does not affect an individual’s eligibility for (or rate of) the social security « safety » net of the Age Pension or Service Age Pension which are the primary payments made by the Government to ensure older people unable to fully support themselves can have an adequate standard of living.

This measure does not affect an individual’s eligibility for (or rate of) the social security « safety » net of Carer Payment, Carer Allowance or Disability Support Pension or Invalidity Service Pension which are the primary payments made by the Government to ensure people unable to fully support themselves can have an adequate standard of living.

Conclusion

To the extent that these changes limit an individual’s entitlement to certain tax offsets these limitations are reasonable and proportionate.



Chapter 16      

Carer allowance

Outline of chapter

Schedule 16 to the « Bill » makes amendments to the Social Security Administration Act to align carer allowance and carer payment start day provisions, by removing provisions that apply to backdate a person’s start day in relation to payment of carer allowance in certain circumstances. The general start day rules under Part 2 of Schedule 18 to the Social Security Administration Act will apply to determine the date of effect of a decision to grant carer allowance.

Background

Schedule 18 of the Social Security Administration Act deals with working out the start day for various social security payments and concessions. Part 3 of Schedule 18 deals with working out a backdated start day in relation to certain social security payments, including carer allowance. The backdated start day under Part 3 may be a day that is earlier than the day worked out under the general start day rules in Part 2 of Schedule 18.

Under items 16 and 17 of Part 3 of Schedule 18 to the Social Security Administration Act, the start day for carer allowance for a disabled child, or for an adult where the disability affecting the adult is due to an acute onset, may be up to 12 weeks before the day on which the person made a claim. The start day cannot be earlier than the date of the disability for a child, or the date of acute onset of the disability for an adult, even if that date is less than 12 weeks before the date of claim. By contrast, the start day for carer payment cannot be earlier than the day worked out under Part 2 of Schedule 18.

The amendments made by this Schedule will not affect whether a person is qualified for carer allowance, but mean a person’s start day for carer allowance will be the day worked out under the general start day rules in Part 2 of Schedule 18.

The amendments made by this Schedule commence on the later of 1 January 2017 and the day after this Act receives the Royal Assent.

Explanation of the changes

Amendments to the Social Security Administration Act

Item 1 repeals clauses 16 and 17 of Schedule 18 to the Social Security Administration Act, meaning a person’s start day for carer allowance will not be backdated to a day before the start day worked out under the general start day rules in Part 2 of Schedule 18 to the Social Security Administration Act.

Item 2 is an application provision which states that the amendment made by item 1 of this Schedule applies to claims for carer allowance made on or after the commencement of that item.

S TATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Carer allowance

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview

This Schedule amends the Social Security Administration Act 1999 to change the earliest date of effect for a grant of carer allowance to the date the claim is lodged or the date of first contact with the Department of Human Services. New claims for carer allowance received after 1 January 2017 will no longer be able to be backdated up to 12 weeks before the person contacted the Department of Human Services about carer allowance.

The start day for carer allowance for a person caring for a child under the age of 16 years can currently be backdated up to 12 weeks before the date of claim for a person caring for a child with disability.

The start day for carer allowance (adult) can currently be backdated up to 12 weeks before the date of claim for a person caring for an adult with a disability, provided the disability is due to an acute onset.

Human Rights implications

Right to Social Security

This Schedule engages the right to social security as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). 

The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system.  The social security scheme must provide a minimum level of benefits to all individuals and families that will enable them to cover essential living costs.  Carer allowance itself is not an income support payment and may be paid in addition to an income support payment, such as carer payment.  Carer allowance recipients, therefore, have access to additional personal income or social security income support to cover essential living costs.  Other social security payments are not affected by this measure.

The United Nations Committee on Economic, Cultural and Social Rights (the committee) has stated that a social security scheme should be sustainable and that the conditions for benefits must be reasonable, proportionate and transparent (see General Comment No. 19). This measure will ensure that the social security system remains sustainable and targeted to those recipients with the greatest need.

The amendments will also align the date of effect for the grant of carer allowance with other social security payments made under the Social Security Act.

Conclusion

The amendments made by this Schedule are compatible with human rights because:

•        they do not affect a person’s entitlement to income support payments, such as carer payment;

•        to the extent that the changes reduce the period from which carer allowance is payable, the reduction is reasonable, necessary and proportionate to achieving a legitimate aim; and

•        they do not limit or preclude eligible persons from gaining or maintaining access to carer allowance under the Social Security Act, 1991.



Outline of chapter

Schedule 18 to the « Bill » makes amendments to the family assistance indexation provisions to maintain the higher income free area for family tax benefit (FTB) Part A and the primary earner income limit for FTB Part B for a further three years. Under the current law, indexation of these amounts is paused until and including 1 July 2016. These amendments ensure that indexation does not occur on 1 July of 2017, 2018 and 2019.

Similarly, amendments are made to ensure that the paid parental leave income limit is not indexed for a further three years, until 1 July 2020.

These measures commence on Royal Assent.

Background

Subclause 3(7) of the A New Tax System (Family Assistance) Act 1999 currently provides that the basic higher income free area for FTB Part A and the primary earner income limit for FTB Part B are not to be indexed on 1 July of 2009 and each 1 July until and including 1 July 2016.

The basic higher income free area for FTB Part A is currently $94,316. If an individual’s adjusted taxable income is above this amount, then their rate of FTB Part A is calculated using Method 2.

The primary earner income limit for FTB Part B is currently $100,000. An individual cannot access FTB Part B if their adjusted taxable income is more than this amount (unless they or their partner are receiving an income support payment).

The amendments made by this Schedule maintain these amounts for a further three years.

To be eligible for parental leave pay or dad and partner pay, a person must satisfy, among other things, an income test. In general terms, to satisfy the income test, the person’s income for a particular income year must not be more the PPL income limit. Under the current rules, this limit is $150,000 until 30 June 2017 and is then to be indexed.

The amendments made by this Schedule maintain the current PPL income limit until 30 June 2020 (with indexation occurring on 1 July 2020).

Explanation of the changes

Amendment of the A New Tax System (Family Assistance) Act 1999

Item 1 amends subclause 3(7) of Schedule 4 so that the provision also refers to 1 July of 2017, 2018 and 2019. The effect is that the basic higher income free area for FTB Part A and the primary earner income limit for FTB Part B will not be indexed on these dates. The next indexation of these amounts will be on 1 July 2020.

Amendments to the Paid Parental Leave Act 2010

Section 41 sets out the PPL income limit . Currently, the limit is set at $150,000 until before 1 July 2017 (paragraph 41(a) refers). Item 3 amends this provision so that the PPL income limit will remain at $150,000 until before 1 July 2020. Indexation will then occur on 1 July 2020.

Section 42 provides for the indexation of the PPL income limit. Under subsection 42(1), the PPL income limit is to be indexed on each 1 July starting on 1 July 2017. Item 4 amends this provision so that the PPL income limit is first indexed on 1 July 2020.

Items 2 and 5 make consequential amendments to the Guide in section 30 (relating to eligibility for parental leave pay) and the Guide in section 115CA (relating to eligibility for dad and partner pay).

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Indexation of family tax benefit and parental leave thresholds

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview

The schedule will have the effect of fixing the value of certain family payments thresholds for three years. From 1 July 2017, this measure will fix for three years:

•        the higher income free area at $94,316 of the Family Tax Benefit Part A;

•        the primary earner income limit at $100,000 of Family Tax Benefit Part B; and

•        the Paid Parental Leave income limit at $150,000.

Indexation will resume on 1 July 2020.

Human rights implications

The schedule engages the following human rights:

Right to social security

Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right of everyone to social security.

Article 26 of the Convention on the Rights of the Child (CRC) requires countries to recognise the right of the child to benefit from social security.  Benefits should take into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child.

The United Nations Committee on Economic, Cultural and Social Rights recognises that a social security scheme should be sustainable, and that the conditions for benefits must be reasonable and proportionate.

The changes to the value of the family payments thresholds assist in targeting payments according to need. Families will not have their payments reduced if their family income does not increase over the three years 2017 - 2019.

This reform will help ensure the sustainability of the family payments system.

Conclusion

These amendments are compatible with human rights because they advance the protection of human rights and, to the extent that these changes limit access to family payments, these limitations are reasonable and proportionate.



Outline of chapter

Schedule 18 to the « Bill » introduces the 2015-16 Mid-Year Economic and Fiscal Outlook measure, Age Pension — aligning the pension means testing arrangements with residential aged care arrangements.

Background

This Schedule amends the Social Security Act and Veterans’ Entitlements Act to remove an exemption from the income test in those Acts that allows aged care residents to rent their former residence and have the rental income excluded from their assessable income. The removal of this exemption will only apply to people who enter residential or flexible aged care services on or after the commencement of the Schedule.

This Schedule also amends the Social Security Act and Veterans’ Entitlements Act to remove an exemption from the assets test in those Acts that provides an indefinite assets test exemption for the former principal residence from the pension assets test where the property is rented and aged care accommodation costs are paid on a periodic basis. A person who enters a residential or flexible aged care service after the commencement of this Schedule can still benefit from provisions in the Social Security Act and Veterans’ Entitlements Act that treat a person’s former residence as their principal home for a period of up to two years from the day on which the person enters care (unless the home is occupied by their partner, in which case it will continue to be exempt).

The amendments in this Schedule allow a person who enters a residential or flexible aged care service before the commencement of this Schedule to continue to be eligible for the income test and assets test exemptions if they leave aged care and re-enter residential or flexible aged care services within 28 days. This includes where they move to a new aged care facility.

The amendments made by this Schedule commence the first 1 January or 1 July to occur after the day this Act receives the Royal Assent.

Explanation of the changes

Item 1 adds a note at the end of paragraphs 8(8)(zn), (zna) and (znaa) of the Social Security Act that refers to new subsections 8(10A) and 8(10B) of the Social Security Act.

Item 2 inserts new subsections 8(10A), (10B) and (10C) in the Social Security Act.

These subsections make amendments to the income test in section 8 of the Social Security Act.

New subsection 8(10A) provides that paragraphs 8(8)(zn), (zna) and (znaa) of the Social Security Act do not apply in relation to a person who first enters a residential care service or a flexible care service on or after the commencement of this subsection.

Paragraphs 8(8)(zn), (zna) and (znaa) of the Social Security Act exclude from the definition of income any rent a person receives from their principal home that they, or their partner, earns, derives or receives from another person while liable to pay:

•        an accommodation charge;

•        all or some of an accommodation bond by periodic payments; or

•        all or some of a daily accommodation payment or a daily accommodation contribution.

New subsection 8(10A) applies so that if a person first enters a residential care service or a flexible care service on or after the commencement of the subsection, this rent will no longer be excluded from the person’s income under section 8 of the Social Security Act.  As a consequence of new subsection 8(10A), the rent will be treated as income for means testing purposes.

New subsection 8(10B) provides that paragraphs 8(8)(zn), (zna) and (znaa) do not apply, and never again apply, in relation to a person if:

(a)      the person enters a residential care service or a flexible care service on or after the commencement of this subsection; and

(b)      that entry occurs more than 28 days after the day the person last ceased being provided with residential care or flexible care through a residential care service or a flexible care service (other than because the person was on leave).

This subsection ensures that people in residential care or flexible care prior to the commencement of this subsection who leave care for a period of up to 28 days (excluding periods of leave) can re-enter residential care or flexible care on or after the commencement of this subsection and have rent excluded from their income in accordance with paragraphs 8(8)(zn), (zna) and (znaa) of the Social Security Act.

New subsection 8(10C) provides that where an expression is used in new subsections 8(10A) or 8(10B) and is also used in the Aged Care Act 1997 the expression will have the same meaning in that subsection as in that Act.

Item 3 inserts new subsections 11A(8A), (8B) and (8C) in the Social Security Act.

These new subsections make amendments to section 11A of the Social Security Act.

Section 11A sets out the definition of ‘principal home’ for the Social Security Act.

New subsection 11A(8A) provides that subsection 11A(8) of the Social Security Act does not apply in relation to a person who first enters a residential care service or a flexible care service on or after the commencement of this subsection.

Subsection 11A(8) of the Social Security Act allows a person to treat their former residence as their principal home where the Secretary is satisfied that they have left their former principal home to enter into a care situation.  The person’s former residence will continue to be treated as their principal home if the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person and the person is liable to pay one of a range of aged care payments detailed in subsection 11A(8).

By treating their former residence as a ‘principal home’ a person can treat their former residence as an exempt asset for the purposes of the assets tests in the Social Security Act.

The effect of new subsection 11A(8A) is that a person who first enters a residential care service or a flexible care service on or after the commencement of this subsection will not be able to rely upon subsection 11A(8) to treat their former residence as their ‘principal home’.  The person therefore cannot rely upon subsection 11A(8) to treat their former residence as an exempt asset under the Social Security Act.

New subsection 11A(8B) provides that subsection 11A(8) does not apply, and never again applies, in relation to a person if:

(a)      the person enters a residential care service or a flexible care service on or after the commencement of this subsection; and

(b)      that entry occurs more than 28 days after the day the person last ceased being provided with residential care or flexible care through a residential care service or a flexible care service (other than because the person was on leave).

This subsection ensures that people who are in residential care or flexible care prior to the commencement of this subsection and leave care for a period of up to 28 days (excluding periods of leave) can re-enter residential care or flexible care on or after the commencement of this subsection and treat their former residence as their principal home under subsection 11A(8) of the Social Security Act.

New subsection 11A(8C) provides that where an expression is used in new subsections 11A(8A) or 11A(8B) and is also used in the Aged Care Act 1997 the expression will have the same meaning in that subsection as in that Act.

Item 4 adds a new note (Note 4) at the end of paragraph 5H(8)(nc) of the Veterans’ Entitlements Act.  This new note refers to new subsections 5H(11A) and (11B).

Item 5 adds three new notes (Notes 1-3) at the end of paragraph 5H(8)(nd) of the Veterans’ Entitlements Act. This new note refers to subsections 5N(2), 5LA(8), 5LA (9) and new subsections 5H(11A) and (11B).

Item 6 adds a new note at the end of paragraph 5H(8)(nf) of the Veterans’ Entitlements Act.  This new note refers to new subsections 5H(11A) and (11B).

Item 7 inserts new subsections 5H(11A), (11B) and (11C) in the Veterans’ Entitlements Act.

These subsections make amendments to the income test in section 5H of the Veterans’ Entitlements Act.

New subsection 5H(11A) provides that paragraphs 5H(8)(nc), (nd) and (nf) of the Veterans’ Entitlements Act do not apply in relation to a person who first enters a residential care service or a flexible care service on or after the commencement of this subsection.

Paragraphs 5H(8)(nc), (nd) and (nf) of the Veterans’ Entitlements Act exclude from the definition of income any rent a person receives from their principal home that they, or their partner, earns, derives or receives from another person while liable to pay:

•        an accommodation charge;

•        all or some of an accommodation bond by periodic payments; or

•        all or some of a daily accommodation payment or a daily accommodation contribution.

New subsection 5H(11A) applies so that if a person first enters a residential care service or a flexible care service on or after the commencement of this subsection, this rent will no longer be excluded from the person’s income under section 5H of the Veterans’ Entitlements Act.  As a consequence of new subsection 5H(11A), the rent will be treated as income for means testing purposes.

New subsection 5H(11B) provides that paragraphs 5H(8)(nc), (nd) and (nf) of the Veterans’ Entitlements Act do not apply, and never again apply, in relation to a person if:

(a)      the person enters a residential care service or a flexible care service on or after the commencement of this subsection; and

(b)      that entry occurs more than 28 days after the day the person last ceased being provided with residential care or flexible care through a residential care service or a flexible care service (other than because the person was on leave).

This subsection ensures that people in residential care or flexible care prior to the commencement of this subsection who leave care for a period of up to 28 days (excluding periods of leave) can re-enter residential care or flexible care on or after the commencement of this subsection and have rent excluded from their income in accordance with paragraphs 5H(8)(nc), (nd) and (nf) of the Veterans’ Entitlements Act.

New subsection 5H(11C) provides that where an expression is used in new subsections 5H(11A) or 5H(11B) and is also used in the Aged Care Act 1997 the expression will have the same meaning in that subsection as in that Act.

Item 8 inserts new subsections 5LA(8A), (8B) and (8C) in the Veterans’ Entitlements Act.

These new subsections make amendments to section 5LA of the Veterans’ Entitlements Act.

Section 5LA sets out the definition of ‘principal home’ for the Veterans’ Entitlements Act.

New subsection 5LA(8A) provides that subsection 5LA(8) of the Veterans’ Entitlements Act does not apply in relation to a person who first enters a residential care service or a flexible care service on or after the commencement of this subsection.

Subsection 5LA(8) of the Veterans’ Entitlements Act allows a person to treat their former residence as their principal home where the Commission is satisfied that they have left their former principal to enter into a care situation.  The person’s former residence will continue to be treated as their principal home if the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person and the person is liable to pay one of a range of aged care payments detailed in subsection 5LA(8).

By treating their former residence as a ‘principal home’ a person can treat their former residence as an exempt asset for the purposes of the assets tests in the Veterans’ Entitlements Act.

The effect of new subsection 5LA(8A) is that a person who first enters a residential care service or a flexible care service on or after the commencement of this subsection will not be able to rely upon subsection 5LA(8) to treat their former residence as their ‘principal home’.  The person therefore cannot rely upon subsection 5LA(8) to treat their former residence as an exempt asset under the Veterans’ Entitlements Act.

New subsection 5LA(8B) provides that subsection 5LA(8) does not apply, and never again applies, in relation to a person if:

(a)      the person enters a residential care service or a flexible care service on or after the commencement of this subsection; and

(b)      that entry occurs more than 28 days after the day the person last ceased being provided with residential care or flexible care through a residential care service or a flexible care service (other than because the person was on leave).

This subsection ensures that people in residential care or flexible care prior to the commencement of this subsection who leave care for a period of up to 28 days (excluding periods of leave) can re-enter residential care or flexible care on or after the commencement of this subsection and treat their former residence as their principal home under subsection 5LA(8) of the Veterans’ Entitlements Act.

New subsection 5LA(8C) provides that where an expression is used in new subsections 5LA(8A) or 5LA(8B) and is also used in the Aged Care Act 1997 the expression will have the same meaning in that subsection as in that Act.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Pension means testing for aged care residents

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview of the Schedule

This Schedule will improve the sustainability and equity of the income support system by removing the social security income and assets test exemptions that are available to aged care residents who are renting their former home and paying their aged care accommodation costs by periodic payments.

New entrants to residential and flexible aged care from the commencement of this Schedule have:

1)            the net rental income from their former home assessed under the social security income test; and

2)            the value of their former home assessed under the social security assets test after two years, unless the home is occupied by a protected person, such as their partner, in which case it will continue to be exempt.

The changes will not impact income support recipients who enter residential and flexible aged care before commencement provided they remain in care or are only absent from care for a period not exceeding 28 days. They will continue to be eligible for these income and assets test exemptions.

This Schedule commences on the first 1 January or 1 July to occur after the day this Act receives the Royal Assent

Human rights implications

This Schedule engages the following human rights:

Right to social security

Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right of everyone to social security. This right requires a social security system to be established and that States Parties must, within their maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

This Schedule is consistent with supporting the right to social security.

The social security system uses income and assets testing to ensure the social security system:

•        is sustainable, by reducing pension outlays

•        is targeted to those in need, by reducing pension support to those who have the financial capacity to be more self-reliant

•        encourages self-provision, by progressively withdrawing pension payments as an individual’s level of income and asset increases to ensure that people with additional private income and assets are better off than those relying solely on the pension; and

•        is fair, by ensuring individuals with similar levels of income and assets receive similar levels of assistance through the pension.

While the effect of this Schedule will be that pension payments for some recipients who enter aged care from the commencement of this Schedule will be lower than would have been the case if the income and assets test exemptions had not been removed, those affected will hold substantial levels of private income and assets. They have the capacity to be more self-reliant and it is appropriate that they:

•        use their income and assets to help support themselves; and

•        do not get higher pension payments that other people in aged care who have similar levels of income and assets, but who are not eligible for the income or assets test concessions.

Pensioners who are affected by the changes and who receive larger amounts of rental income will better off in terms of their overall income than if they did not receive income from rent. This is because of the design of the pension income test, which reduces pension by 50 cents for every $1 of private income over the pension income test “free areas”, meaning that pensioners are always better off in terms of their total income when they have private income. The pension income test only assesses net rent received, that is, the rent received less legitimate expenses, such as rates.

Pensioners who are affected by the changes and receive modest amounts of rent will not have their pension reduced if their total private income is less than the pension income test free areas.

Where the value of a pensioner’s former home is assessed for social security purposes after two years, there are asset test “free areas” that will allow single non-homeowner pensioners to have assets of up to $450,000 before their pension is reduced and about $747,000 before their pension is cancelled as at 1 January 2017. These amounts are higher again for couples.

If a pensioner’s payment is reduced or cancelled because their assessable assets exceed those amounts, they have the option of continuing to rent the home, or selling the home and investing and/or drawing down the proceeds, to compensate for the reduction in pension.

Affected pensioners may also have the option of obtaining additional income through the Pension Loans Scheme. The Pension Loans Scheme is available through Centrelink and the Department of Veterans’ Affairs to part-rate pensioners and some self-funded retirees who own real estate. Under this scheme, a person who is of Age Pension age, or the partner of someone who is, may be able to obtain a loan that will bring their fortnightly payment up to the maximum pension rate. Repayments can be made at any time or the debt can be left, including the accrued interest, to be recovered from the person’s estate. The loan is secured against the value of any real estate they own.

The current income and assets test exemptions do not require that the amount of rent charged reflects commercial rates, nor is the amount of rent exempted limited to the amount of the aged care accommodation periodic payment. Aged care residents can qualify for the concessions by paying the bulk of their accommodation costs by a lump sum (which is assets test exempt under social security law) and leaving a small portion outstanding to be paid by small periodic payments. In these circumstances, the entire net rent amount is exempted from the pension income test, even though the periodic payment is much less than the rent received, and the indefinite assets test exemption under social security law for the home and the lump sum payment applies.

The current exemption is also inequitable. Net rental income is fully assessed for pensioners in aged care who have a rental property which is not their former home.

If a person leaves aged care and returns to live in their home, their pension income and assets test assessments would be adjusted to reflect that they are no longer renting the home and that the home would be an exempt asset, as it would be their principal home.

Aged care fees and charges are partly based a person’s total income, including pension payments with the minimum aged care fee being a percentage of the pension rate. A reduction in pension payments under this measure will reduce a person’s total income assessable under the aged care means test, which could lead to a reduction in their aged care fees and charges.

Improving the long-term sustainability of the income support system is important to ensure the income support system will continue to provide an adequate level of support to those in need over the long term.

Conclusion

The amendments in this Schedule are compatible with human rights because they do not limit access to social security.



Chapter 19      

Employment income

Outline of chapter

Schedule 19 introduces the 2015-16 Mid-Year Economic and Fiscal Outlook measure, Remove the Exemptions for Parents in Employment Nil Rate Periods .

This Schedule removes the exemption from the income test for family tax benefit Part A recipients and the exemption from the parental income test for dependent young people receiving youth allowance and ABSTUDY living allowance if the parent is receiving either a social security pension or social security benefit, and the fortnightly rate of pension or benefit is reduced to nil because of employment income (either wholly or partly). This measure improves fairness and targeting of payments and facilitates equity between families with similar incomes.

Background

Currently, families receiving family tax benefit Part A are subject to an income test, and dependent young people receiving youth allowance or ABSTUDY living allowance payments are subject to a parental income test, when determining their rate of payment, unless the family or parent is eligible for a social security pension or benefit.  The income test exemption for income support recipients is extended to income support recipients who are in an employment income nil rate period. An employment income nil rate period allows an income support recipient to retain entitlement to their income support payment for up to 12 weeks if their income support payment is not payable due to employment income (either wholly or partly). 

This measure will remove the exemption from the income test for families receiving family tax benefit Part A and the exemption from the parental income test for dependent young people receiving youth support payments, where the family or parent is in an employment income nil rate period. This means that family income testing for family tax benefit Part A or youth support payments will apply in any fortnight a family is not entitled to receive a rate of income support.

Explanation of the changes

Amendments to the Family Assistance Act

Item 1 amends subparagraph 3(1)(b)(i) of the definition of receiving in the Family Assistance Act by excluding clause 38L of Schedule 1 of the Family Assistance Act from the operation of that subparagraph. 

The effect of this amendment means that the exemption from the family tax benefit Part A income test will no longer apply where the individual (and partner) are in an employment nil rate period.  Clause 38L, however, will continue to apply if an individual and/or their partner are eligible to receive a rate of social security pension, social security benefit, service pension or income support supplement in that fortnight.

Amendments to the Social Security Act

Item 2 amends paragraph 23(4AA)(e) of the definition of receiving in the Social Security Act so that the exemption from the parental income test in point 1067G-F3 of the Social Security Act no longer applies for the purposes of the person being taken to receive a social security pension or social security benefit under subsection 23(4A) of the definition.

The effect of this amendment means that the parents of recipients of youth allowance or ABSTUDY living allowance who are in an employment income nil rate period will no longer be taken to be receiving a social security pension or benefit in any fortnight in which they have a nil rate of income support.  Parental income testing will apply when calculating the rate of youth support during these fortnights.

Item 3 is a technical amendment due to the amendment in item 4 .

Item 4 repeals paragraph 1067G-F3(d) to eliminate the possibility of a child being exempt from the parental income test if the parent retains their health care card during the 12 week employment income nil rate period due to the amendment made in item 2 .

Application provisions

Item 5 is an application provision for these amendments. Subitem 5(1) provides that the amendment made by item 1 applies in relation to working out the rate of family tax benefit for days on or after the commencement date of 1 July 2018. 

Subitem 5(2) provides that the amendment made by item 2 applies in relation to working out the rate of youth allowance or ABSTUDY living allowance for days on or after the commencement date of 1 July 2018.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Employment income

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview

This Schedule will, from 1 July 2018, remove existing income test exemptions for parents in employment nil rate periods under the:

•        (i) family tax benefit Part A income test; and

•        (ii) parental income test that applies to dependent young children receiving youth allowance and ABSTUDY living allowance.

Human rights implications

The Schedule engages the following human rights:

Right to social security

The Schedule is consistent with supporting the right to social security.

The Schedule removes the exemption from the income test for family tax benefit Part A recipients and the exemption from the parental income test for dependent young people receiving youth allowance and ABSTUDY living allowance if the parent is receiving either a social security pension or social security benefit, the rate of which is reduced to nil, either wholly or in part, because of employment income.

Removal of the exemptions recognises that they cause an inequity between families, where those families subject to the exemptions can receive greater financial assistance from family and youth payments than families not subject to the exemptions, even though they have the same income.

Removal of the exemptions also recognises that a family with income, including employment income sufficient to reduce their social security payment to nil, has financial means greater than a family that is receiving a social security payment. The measure will encourage greater self-sufficiency by reducing perverse incentives for families to maintain contact with the income support system rather than move to higher labour force attachment.

Conclusion

The amendments in the Schedule are compatible with human rights because they do not limit access to social security.

 



 

Chapter 20      

Psychiatric confinement

Outline of chapter

Schedule 20 to the « Bill » provides that a person who is undergoing psychiatric confinement because they have been charged with a serious offence will be taken to be in psychiatric confinement for the purpose of the social security law, irrespective of whether the person is undertaking a course of rehabilitation.   One of the effects of this is that relevant social security payments will not be payable to the person while the person is undergoing that psychiatric confinement.

Background

The Social Security Act 1991 (Social Security Act) currently provides that certain social security payments are not payable to a person who is undergoing psychiatric confinement because the person has been charged with an offence.  However, the confinement of a person in a psychiatric institution during a period in which the person is taken to be undertaking a course of rehabilitation is not taken to be psychiatric confinement.

In Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436, the Full Federal Court held that a ‘course of rehabilitation’ was to be interpreted broadly for the purpose of the definition of psychiatric confinement .  The effect of the decision in Franks is that the vast majority of people who are in a psychiatric institution would be undertaking a course of rehabilitation and, as a consequence, a social security payment would continue to be payable to the person (provided all the other qualification and payability requirements are satisfied).

This Schedule provides that a person who is undergoing psychiatric confinement because they have been charged with a serious offence will be taken to be in psychiatric confinement for the purpose of the social security law, irrespective of whether the person is undertaking a course of rehabilitation.  One of the effects of this is that relevant social security payments will not be payable to the person while the person is undergoing that psychiatric confinement.

A serious offence will include the offences of murder or attempted murder, manslaughter, rape or attempted rape, as well as other violent offences that are punishable by imprisonment for life or for a period (or maximum period) of at least seven years.

This Schedule will also provide for circumstances in which a person is not taken to be undergoing psychiatric confinement (meaning that a social security payment will be payable) during a period that is ‘a period of integration back into the community for the person’.

This measure will commence on 1 July 2017.

Explanation of the changes

Amendments to the Social Security Act

Items 1, 2, 4, 7, 8 and 9 are technical amendments that are consequential to the amendments made by item 6 to insert new subsections 23(9A), (9B), (9C), (9D), (9E) and (9F).

These items amend subsections and notes that refer to subsections 23(8) and (9).  Subsections 23(8) and (9) provide for when a person is in psychiatric confinement.  New subsections 23(9A), (9B), (9C), (9D), (9E) and (9F) will also be relevant for determining whether a person is undergoing psychiatric confinement. 

Item 3 inserts a definition of serious offence into subsection 23(1) of the Social Security Act.  A serious offence will have the meaning given by new subsections 23(9E) and (9F) (inserted by item 6 of this Schedule).

Item 5 provides that current subsection 23(9) is subject to new subsection 23(9A) (inserted by item 6 of this Schedule).

Currently, subsection 23(9) provides that the confinement of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation is taken not to be psychiatric confinement .  New subsection 23(9A) provides for circumstances in which subsection 23(9) does not apply.

Item 6 inserts new subsections 23(9A), (9B), (9C), (9D), (9E) and (9F).

New subsection 23(9A)

New subsection 23(9A) provides that subsection 23(9) does not apply in relation to a person whose confinement in a psychiatric institution is because the person has been charged with a serious offence.  New subsections 23(9E) and (9F) provide the meaning of a serious offence.  The effect of new subsection 23(9A) is that a person who is in a psychiatric institution because they have been charged with a serious offence will be taken to be in psychiatric confinement, for the purpose of the social security law, irrespective of whether the person is undertaking a course of rehabilitation.

Section 1158 of the Social Security Act relevantly provides that an instalment of a certain range of social security payments is not payable to a person in respect of a day on which the person is undergoing psychiatric confinement because the person has been charged with an offence.  The social security payments mentioned in section 1158 are social security pensions, social security benefits, parenting payment, carer allowance, mobility allowance or pensioner education supplement.

The effect of new subsection 23(9A), together with current section 1158, will be that a social security payment is not payable to a person who is undergoing psychiatric confinement because the person has been charged with a serious offence.  This will be the case even if the person is taken to be undertaking a course of rehabilitation.

A person may be undergoing psychiatric confinement because they have been charged with an offence if, for example, the person:

•        is having their fitness to stand trial assessed;

•        has been found unfit to stand trial because of the person’s mental impairment; or

•        has been found not guilty of the charge because of the person’s mental impairment.

There would need to be a connection between the charge and the psychiatric confinement before a person would be taken to be undergoing psychiatric confinement because the person has been charged with a serious offence.  A social security payment will continue to be payable to a person who is undergoing psychiatric confinement for reasons unrelated to the commission of an offence.  A person would also not be taken to be undergoing psychiatric confinement because the person has been charged with an offence if the person:

•        was found not guilty of the offence on the basis that they did not commit the offence; and

•        remains in psychiatric confinement following the not guilty finding.

It is likely that a person who is found guilty of an offence but who is remanded in a psychiatric institution following the guilty finding, would be taken to be in gaol for the purpose of the social security law.  Subsection 23(5) of the Social Security Act currently provides that a person is in gaol for the purposes of the social security law if the person is being lawfully detained (in prison or elsewhere) while under sentence for conviction of an offence and not on release or licence.  Relevant social security payments are not currently payable to people in gaol.  This Schedule has no impact on people who are in gaol.

New subsections 23(9B) and (9C)

New subsection 23(9B) provides that the confinement of a person in a psychiatric institution because the person has been charged with a serious offence is taken not to be psychiatric confinement during a period that is a period of integration back into the community for the person.

New subsection 23(9C) provides that whether a period is a period of integration back into the community is to be worked out in accordance with a legislative instrument made by the Minister.

One of the effects of a person being taken not to be in psychiatric confinement during a period that is a period of integration back into the community is that section 1158 of the Social Security Act will not preclude the payment of a social security payment during that period.  As people in psychiatric confinement move through their rehabilitation, it is usual for them to be granted various forms of leave from the psychiatric institution before they are unconditionally released.  After a point in this period of integration, it will be necessary for a person to have access to funds to assist the person with costs of living and to provide the person with autonomy as they prepare for re-establishing themselves in the community.

It is appropriate for a period of integration back into the community to be worked out in accordance with a legislative instrument to enable the relevant factors to be set out with the necessary detail and to allow for modification of the period over time, should this be appropriate.  A legislative instrument made for the purpose of new subsection 23(9C) may provide, for example, that a period of integration back into the community for a person is where the person regularly spends a set number of nights in a fortnight outside of the psychiatric institution.  The legislative instrument may also provide that a person’s day of integration back into the community is the first day of the fortnight in which the person spends the set number of nights outside of the psychiatric institution.  An effect of this would be that the person’s social security payment is payable for the full fortnight, even if the person spends some days in that fortnight in the psychiatric institution.

New subsection 23(9D)

The effect of new subsection 23(9D) is that a person who has been charged with a serious offence, will be deemed to be undergoing psychiatric confinement (meaning that a social security payment will not be payable) on certain days, even if, on those days, the person is not in a psychiatric institution.

A person who is undergoing psychiatric confinement because the person has been charged with a serious offence may have periods of leave away from the psychiatric institution.  If any of those periods of leave is taken to be a period of integration back into the community, the effect of new subsections 23(9B) and (9C) will be that the person is taken not to be in psychiatric confinement (meaning that a social security payment will be payable) for that period.

For any period of leave that is taken not to be a period of integration back into the community, the effect of new subsection 23(9D) is that the person will be taken to be undergoing psychiatric confinement (meaning that a social security payment will not be payable) for that period of leave.  A social security payment will not be payable until such time as the period of leave is taken to be a period of integration back into the community for the person, or the person is unconditionally released for psychiatric confinement.

It is appropriate to limit payment of social security payments in this way, as the nature of treatment in psychiatric confinement is such that activities can take place in a range of locations, including outside the institution, and leave can be granted for short periods of time.  This can include, for example, being out of the institution for a few hours to attend an appointment, practise living skills or participate in a training course.  At this stage, the person would still be, in effect, under the control of the State or Territory, not living independently, and could expect that the State or Territory would meet their requirements for support, treatment and activities designed to further their recovery. 

New subsections 23(9E) and (9F)

New subsections 23(9E) and (9F) provide the meaning of a serious offence. 

New subsection 23(9E) provides that an offence is a serious offence if it is:

•        murder or attempted murder; or

•        manslaughter; or

•        rape or attempted rape.

New subsection 23(9F) provides that an offence is also a serious offence if it is an offence against the law of the Commonwealth or a State or Territory, punishable by imprisonment for life or for a period, or maximum period, of at least seven years, and if the conduct constituting the offence involves:

•        loss of life or serious risk of loss of life; or

•        serious personal injury or serious risk of serious personal injury; or

•        serious damage to property in circumstances endangering the « safety » of a person.

It is intended that this broad description of offences will capture offences where the conduct constituting the offence involves serious harm, or serious risk of harm, to a person.  As the description of offences in States and Territories are different and can change over time as new laws are introduced or existing laws are amended, it is not possible to set out in the social security law specific offences that involve serious harm, or serious risk of harm, to a person.

Whether a person has been charged with a serious offence is relevant for the purpose of new subsection 23(9A).  A social security payment will not be payable to a person who is undergoing psychiatric confinement because the person has been charged with a serious offence.  A social security payment will continue to be payable to a person who is undergoing psychiatric confinement because the person has been charged with an offence that is not a serious offence, if a person is undertaking a course of rehabilitation.  A social security payment will also continue to be payable if the person’s psychiatric confinement is for reasons unrelated to the commission of an offence.

Application provisions

Item 10 provides the application provisions for the amendments. 

Subitem 10(1) provides that, for new subsections 23(9A) to (9C), the amendments apply on and after commencement in relation to a person’s confinement in a psychiatric institution on or after that commencement, even if:

•        the confinement began before that commencement; or

•        the person was charged with a serious offence before, on or after that commencement.

This item will ensure that the new provisions apply to any person who, on the date of commencement, is undergoing psychiatric confinement because the person has been charged with a serious offence.  It is appropriate to provide that the amendments apply to a person who is undergoing psychiatric confinement on the date of commencement and not only to a person who is charged on or after the commencement day because it will ensure consistent treatment of people in the same circumstances.  People affected will be having their needs for support, treatment and activities designed to further their recovery met by the State or Territory that is responsible for their confinement.

Subitem 10(2) provides that, for subsection 23(9D), the amendments apply in relation to a period beginning on or after the commencement of item 10.  The effect of new subsection 23(9D) is that a person who has been charged with a serious offence will be deemed to be undergoing psychiatric confinement (meaning that a social security payment will not be payable) on certain days, even if, on those days, the person spends part or all of the day at another location.  The effect of subitem 10(2) is that this deeming of a person undergoing psychiatric confinement will occur only in relation to days on and after the commencement of item 10.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Psychiatric confinement

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview

This Schedule provides that a person who is undergoing psychiatric confinement because they have been charged with a serious offence will be taken to be in psychiatric confinement for the purpose of the social security law, irrespective of whether the person is undertaking a course of rehabilitation.   One of the effects of this is that relevant social security payments will not be payable to the person while the person is undergoing that psychiatric confinement.  The Schedule will also provide for circumstances in which a person is not taken to be undergoing psychiatric confinement (meaning that a social security payment will be payable) during a period that is ‘a period of integration back into the community for the person’.

This policy is intended to ensure the integrity and sustainability of the income support system.   The purpose of social security payments such as the Disability Support Pension is to provide a « safety » net for those most in need to help meet their daily living needs in the community.  It is the responsibility of states and territories to provide for a person who is in prison or psychiatric confinement in accordance with a state or territory law.  Part of this responsibility is to provide for a person's basic needs such as sustenance, health care and shelter.  The Australian Government considers that a person who is undergoing psychiatric confinement because they have been charged with a serious offence will have their basic needs met by the state or territory, in the same way as a person who is on remand or convicted and held in prisons.  It is therefore a legitimate objective to provide that a person is not eligible to receive a social security payment while they are undergoing that confinement.

The amendments made by this Schedule will ensure the same social security treatment for people charged with a serious offence in the criminal justice system, whether they are confined in a psychiatric institution or prison. The amendments will support the original intent of section 1158 of the Social Security Act 1991 (the Act), that income support payments are not payable to a person who is in gaol or a person who is undergoing psychiatric confinement because the person has been charged with an offence.  The Act currently provides that a person is not taken to be undergoing psychiatric confinement while the person is undertaking a course of rehabilitation. In Franks v Secretary, Department of Family & Community Services [2002] FCAFC 436, the Federal Court considered that 'a course of rehabilitation' should be interpreted broadly.  The effect of this decision is that the vast majority of people who are undergoing psychiatric confinement will be taken to be undertaking a course of rehabilitation.  This means that a social security payment will be payable to almost everyone who is undergoing psychiatric confinement because the person has been charged with an offence.  This broad interpretation of when a person is undertaking a course of rehabilitation is not however consistent with the original policy intent that most people who are undergoing psychiatric confinement as a result of being charged with an offence are not eligible to receive social security payments.  Providing that a social security payment is not payable to a person who is undergoing psychiatric confinement because the person has been charged with a serious offence, seeks to support the original policy intent and will assist albeit in a small way, in ensuring the sustainability of the social security system by ensuring that payments are appropriately targeted to those in need.

This policy is proportionate and will not have an unreasonable impact on persons in psychiatric confinement because they are already receiving in kind benefits in the form of accommodation and other services in the relevant institution where they are confined.  This policy does not have a punitive intent, rather it is a recognition that people in these circumstances, like those in gaols, have a reduced need for social security payments as their basic needs are met by the states and territories that confine them.  This measure will not apply to a person who is undergoing psychiatric confinement because they have been charged with an offence that is not a serious offence, or for reasons unrelated to the commission of an offence.  The Government recognises that people can be caught up in criminal proceedings, and then psychiatric confinement, by being charged with minor offences that in some cases would not result in them being confined if they did not have a disability

Human rights implications

Rights to social protection and social security and the right to an adequate standard of living

Article 28(1) of the Convention of the Rights of Persons with Disabilities (the CRPD) provides for the right of persons with disabilities to an ‘adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions’.

Article 28(2) of the CRPD, and article 9 of the International Convention on Economic, Social and Cultural Rights (the ICESCR) recognise the rights of everyone to social protection and social security. 

There is no explicit obligation to provide social security benefits in the form of payments or cash.  Rather, where social security systems are in place to provide for certain social risks or contingencies, article 28 of the CRPD requires that the benefits for the relevant persons, including benefits in kind, must suffice to ensure that people can realise their right to the adequate standard of living.  People in psychiatric confinement are receiving ‘benefits in kind’ in lieu of a social security payment, in the form of food, clothing and housing provided by the state or territory psychiatric institution, and therefore have their basic needs provided for.  When such benefits are being provided, the need for social security in the form of payments is negated. 

The Government recognises that the transition of these vulnerable people from psychiatric confinement back into the community is not as straightforward as for those who have been imprisoned.  It is for this reason that the Schedule allows for a legislative instrument to be made to set out circumstances in which a person can be taken to be in a period of integration back into the community.  During this period, the person will not be taken to be undergoing psychiatric confinement and as a result, they may be eligible to receive social security payments, particularly where the person has a degree of autonomy.   This will ensure that the person’s right to an adequate standard of living is provided for in the period that a person is re-establishing themselves in the community.  Any period of leave from the psychiatric institution that is not a period of integration back into the community is likely to be a short period, and the person’s basic needs will continue to be provided for by the psychiatric institution during that period. The Government believes that this goes some way to support the original intent of the psychiatric confinement provisions in the Act, and is a reasonable and proportionate way to address this issue.

Individuals affected (and their families) will have their rights to an adequate standard of living, and to adequate health, habilitative and rehabilitative care services fulfilled. 

This measure is justifiable, reasonable and proportionate and thus consistent with Australia’s international human rights obligations.

Rights of equality and non-discrimination

Article 26 of the International Covenant on Civil and Political Rights and article 2(2) of the ICESCR recognise the rights of equality and non-discrimination.

One of the effects of the Schedule will be that a social security payment will not be payable to a person who is undergoing psychiatric confinement because they have been charged with a serious offence.  A person may be undergoing psychiatric confinement on this basis because, for example, they are unfit to stand trial or because they are found not guilty on the grounds of mental impairment.  These people will be treated in the same way as a person who is in gaol having been convicted of an offence, or who is remanded in custody while awaiting trial after being charged with an offence.

While people who are undergoing psychiatric confinement may have a disability, any differential treatment of these persons is justifiable as those in psychiatric confinement are receiving benefits in kind (in the form of adequate food, clothing and housing) and are having their needs met. 

Impact on partners and children

Articles 28(1) and 23(2) of the CRPD, article 11 of the ICESCR, and article 26 of the Convention on the Rights of the Child recognise the impact of social security payments on partners and children.

The current social security law includes provisions for the partners of people in psychiatric confinement.  While a social security payment recipient's partner is imprisoned or undergoing psychiatric confinement because the partner has been charged with an offence, the recipient can be paid a higher partnered rate of their social security payment which is equal to the single rate of the payment. Where a social security recipient was a carer for a child (or other person) prior to undergoing psychiatric confinement, and that caring responsibility has passed to another person, that other person is able to claim social security payments in respect of the child (or person), subject to all standard eligibility criteria.  This may include Parenting Payment, Family Tax Benefit, Carer Payment and Carer Allowance.

Conclusion

The Schedule is compatible with human rights because people in psychiatric confinement receive ‘benefits in kind’ in lieu of a social security payment.  Their basic needs are provided for by the relevant State or Territory government through the hospital or psychiatric facility.  The current arrangements for social security payments adequately provide for partners and children of people in psychiatric confinement.

 



Outline of chapter

Schedule 21 to the « Bill » introduces the following 2016-17 Budget measures:

•       1. National Disability Insurance Scheme Savings Fund - abolish the Energy Supplement for all new recipients.

•       2. Disability Insurance Scheme Savings Fund - Single Income Family Supplement cessation for new customers.  

Background

In the 2016-17 Budget the Government announced the National Disability Insurance Scheme Savings Fund - abolish the Energy Supplement for all new recipients measure.

Parts 1-6 of this Schedule implement this measure by amending the Family Assistance Act, Social Security Act, Social Security Administration Act, Farm Household Support Act, Veterans’ Entitlements Act and Military Rehabilitation and Compensation Act.

The amendments made by Parts 1 to 6 of this Schedule to these Acts prevent new recipients of welfare payments or concession cards from being paid the energy supplement from 20 March 2017. The amendments made in this Schedule also ensure that welfare recipients who are paid the energy supplement with their payment or concession card prior to 20 September 2016 who satisfy the requirements set out in this Schedule will continue to receive the energy supplement with their payment or concession card from 20 March 2017 onwards.

For payment recipients and concession card holders who first receive the energy supplement on or after 20 September 2016, the energy supplement can only be paid to them until 19 March 2017 and this is subject to the person satisfying the current legislative criteria for receiving the supplement. From 20 March 2017 onwards they can no longer receive the energy supplement.

Part 6 of this Schedule makes consequential amendments to provisions in the Social Security Act regarding qualification for telephone allowance and the rate of telephone allowance. These amendments are intended to prevent telephone allowance becoming payable to holders of a seniors health card as a result of the cessation of the energy supplement for new card holders.

In the 2016-17 Budget the Government also announced the National Disability Insurance Scheme Savings Fund - Single Income Family Supplement cessation for new customers measure.

Part 7 of this Schedule implements this measure by amending the Family Assistance Act to ensure that from 1 July 2017, the single income family supplement will not be paid to new recipients. Existing recipients may continue to receive the supplement if they remain eligible in accordance with new section 57GDA contained in Part 7 of this Schedule.

The amendments made by Parts 1 to 6 of this Schedule commence on 20 March 2017.

The amendments made by Part 7 of this Schedule commence on 1 July 2017.

Explanation of the changes

Part 1 - Energy supplement under the family assistance law

Amendments to the Family Assistance Act

Item 1 adds a note at the end of subsection 58(2) that explains that paragraph 58(2)(b) does not apply to certain approved care organisations as a result of new subsections 58(2C) and (2D).

Item 2 inserts new subsections (2C) and (2D) into section 58.

New subsection 58(2C) provides that paragraph 58(2)(b), which includes an amount of energy supplement in an approved care organisation's annual rate of family tax benefit, does not apply in relation to an approved care organisation on or after the commencement of this subsection unless the organisation was entitled to be paid family tax benefit in respect of 19 September 2016.

However, new subsection 58(2D) then provides that if the organisation was entitled to be paid family tax benefit in respect of 19 September 2016 and then ceases to be entitled to be paid family tax benefit in respect of a day on or after 20 September 2016 then paragraph 58(2)(b) does not apply, and never again applies, to the organisation from:

•        if the cessation occurred before the commencement of subsection 58(2D)—the start of the day subsection 58(2D) commences; or

•        if the cessation occurred on or after the commencement of subsection 58(2D)—the start of the day of that cessation.

Item 3 inserts new subsection 58A(1A) which provides that an individual cannot make an election to receive energy supplement quarterly under subsection 58A(1) on a day on or after the commencement of subsection 58A(1A) unless energy supplement is used to work out the rate of the individual’s family tax benefit in respect of that day.

Item 4 inserts new subsection 58A(3AA) which provides that an election ceases to be in force if disregarding the election, energy supplement would cease to be used to work out the rate of the individual’s family tax benefit.

Item 5 amends clause 3 of Schedule 1 to include a reference to new clause 6A of Schedule 1.

Item 6 adds a note at the end of step 1 of the method statement in clause 3 of Schedule 1. This note explains that paragraph (cb) of step 1 of the method statement in clause 3 does not apply to certain individuals as a result of new clause 6A of Schedule 1.

Item 7 adds new clause 6A at the end of Division 1 of Part 2 of Schedule 1. New subclause 6A(1) provides that paragraph (cb) of step 1 of the method statement in clause 3 of Schedule 1 does not apply to an individual, meaning energy supplement is not payable, on or after the commencement of clause 6A unless:

•        a) the individual was entitled to be paid family tax benefit in respect of 19 September 2016; and

•        b) the individual’s Part A rate of family tax benefit in respect of 19 September 2016 was not worked out under Part 3A of Schedule 1.

New subclause 6A(2) then applies to determine when a person ceases to be paid the energy supplement in their rate of family tax benefit. This subclause provides that energy supplement won’t be added to the person’s rate under paragraph (cb) of step 1 of the method statement in clause 3 of Schedule 1 if:

•        a) the individual ceases to be entitled to be paid family tax benefit in respect of a day (the applicable day) on or after 20 September 2016; or  

•        b) the individual’s Part A rate of family tax benefit is worked out under Part 3A of Schedule  in respect of a day (the applicable day) on or after 20 September 2016.

New paragraphs 6A(2)(c) and (d) then provide that paragraph (cb) of step 1 of the method statement in clause 3 of Schedule 1 does not apply, and never again applies, to the individual from:

•        a) if the applicable day is before the commencement of clause 6A—the start of the day clause 6A commences; or

•        b) if the applicable day is on or after the commencement of clause 6A—the start of the applicable day.

Item 8 makes a consequential amendment to clause 24HA of Schedule 1.

Item 9 adds new subclause 24HA(2) at the end of clause 24HA of Schedule 1. The new subclause provides that an individual’s above base energy supplement amount for the purposes of method 1 of the maintenance income ceiling test in Subdivision C of Division 5 of Part 2 of Schedule 1 is nil if the person’s rate of family tax benefit energy supplement does not include an amount of energy supplement because of new clause 6A.

Item 10 makes a consequential amendment to clause 24RA of Schedule 1.

Item 11 adds new subclause 24RA(2) at the end of clause 24RA of Schedule 1. The new subclause provides that an individual’s energy supplement amount for the purposes of method 2 of the maintenance income ceiling test in Subdivision D of Division 5 of Part 2 of Schedule 1 is nil if the person’s rate of family tax benefit energy supplement does not include an amount of energy supplement because of new clause 25C.

Item 12 amends clause 25 of Schedule 1 to include a reference to new clause 25C of Schedule 1.

Item 13 adds a note at the end of step 1 of the method statement in clause 25 of Schedule 1. This note explains that paragraph (e) in step 1 of the method statement in clause 25 does not apply to certain individuals as a result of new clause 25C.

Item 14 adds new clause 25C at the end of Division 1 of Part 3 of Schedule 1. New subclause 25C(1) provides that paragraph (e) of step 1 of the method statement in clause 25 of Schedule 1 does not apply to an individual, meaning energy supplement is not payable, on or after the commencement of clause 25C unless:

•        a) the individual was entitled to be paid family tax benefit in respect of 19 September 2016; and

•        b) the individual’s Part A rate of family tax benefit in respect of 19 September 2016 was not worked out under Part 3A of Schedule 1.

New subclause 25C(2) then applies to determine when a person ceases to be paid the energy supplement in their rate of family tax benefit. This subclause provides that energy supplement won’t be added to the person’s rate under paragraph (e) of step 1 of the method statement in clause 3 of Schedule 1 if:

•        a) the individual ceases to be entitled to be paid family tax benefit in respect of a day (the applicable day) on or after 20 September 2016; or  

•        b) the individual’s Part A rate of family tax benefit is worked out under Part 3A of  Schedule 1 in respect of a day (the applicable day) on or after 20 September 2016.

New paragraphs 25C(2)(c) and (d) then provide that paragraph (e) of step 1 of the method statement in clause 25 of Schedule 1 does not apply, and never again applies, to the individual from:

•        a) if the applicable day is before the commencement of clause 25C—the start of the day clause 25C commences; or

•        b) if the applicable day is on or after the commencement of clause 25C—the start of the applicable day.

Item 15 amends subclause 29(1) of Schedule 1 to include a reference to new clause 29AA of Schedule 1.

Item 16 adds a note at the end of subclause 29(1) of Schedule 1. This note explains that paragraph 29(1)(c) of Schedule 1 does not apply to certain individuals as a result of new clause 29AA of Schedule 1.

Item 17 adds a note at the end of step 1 of the method statement in subclause 29(2) of Schedule 1. This note explains that paragraph (c) in step 1 of the method statement in subclause 29(2) does not apply to certain individuals as a result of new clause 29AA of Schedule 1.

Item 18 adds new clause 29AA at the end of Subdivision A of Division 1 of Part 4 of Schedule 1. New subclause 29AA(1) provides that paragraph 29(1)(c) of Schedule 1, or paragraph (c) of step 1 of the method statement in subclause 29(2) of Schedule 1, does not apply to an individual, meaning energy supplement is not payable, on or after the commencement of clause 29AA unless:

•        a) the individual was entitled to be paid family tax benefit in respect of 19 September 2016; and

•        b) the individual’s Part A rate of family tax benefit in respect of 19 September 2016 was not worked out under Part 3A of Schedule 1.

New subclause 29AA(2) then applies to determine when a person ceases to be paid the energy supplement in their rate of family tax benefit. This subclause provides that energy supplement won’t be added to the person’s rate under paragraph 29(1)(c) of Schedule 1, or paragraph (c) of step 1 of the method statement in subclause 29(2) of Schedule 1 if:

•        a) the individual ceases to be entitled to be paid family tax benefit in respect of a day (the applicable day) on or after 20 September 2016; or 

•        b) the individual’s Part A rate of family tax benefit is worked out under Part 3A of Schedule 1 in respect of a day (the applicable day) on or after 20 September 2016.

New paragraphs 29AA(2)(c) and (d) then provide that paragraph 29(1)(c) of Schedule 1, or paragraph (c) of step 1 of the method statement in subclause 29(2) of Schedule 1 does not apply, and never again applies, to the individual from:

•        a) if the applicable day is before the commencement of clause 29AA—the start of the day clause 29AA commences; or

•        b) if the applicable day is on or after the commencement of clause 29AA—the start of the applicable day.

Item 19 amends subclause 29A(2) of Schedule 1 to include a reference to new clause 29D of Schedule 1.

Item 20 adds a note at the end of subclause 29A(2) of Schedule 1. This note explains that paragraph 29A(2)(c) does not apply to certain individuals as a result of new clause 29D of  Schedule 1.

Item 21 adds new clause 29D at the end of Subdivision B of Division 1 of Part 4 of Schedule 1. New subclause 29D(1) provides that paragraph 29A(2)(c) of Schedule 1 does not apply to an individual, meaning energy supplement is not payable, on or after the commencement of clause 29D unless:

•        a) the individual was entitled to be paid family tax benefit in respect of 19 September 2016; and

•        b) the individual’s Part A rate of family tax benefit in respect of 19 September 2016 was not worked out under Part 3A of Schedule 1.

New subclause 29D(2) then applies to determine when a person ceases to be paid the energy supplement in their rate of family tax benefit. This subclause provides that energy supplement won’t be added to the person’s rate under paragraph 29A(2)(c) of Schedule 1 if:

•        a) the individual ceases to be entitled to be paid family tax benefit in respect of a day (the applicable day) on or after 20 September 2016; or 

•        b) the individual’s Part A rate of family tax benefit is worked out under Part 3A of Schedule 1 in respect of a day (the applicable day) on or after 20 September 2016.

New paragraphs 29D(2)(c) and (d) then provide that paragraph 29A(2)(c) of Schedule 1 does not apply, and never again applies, to the individual from:

•        a) if the applicable day is before the commencement of clause 29D—the start of the day clause 29D commences; or

•        b) if the applicable day is on or after the commencement of clause 29D—the start of the applicable day.

Item 22 adds a note at the end of subclause 31B(1) of Schedule 1 which explains that for certain individuals, energy supplement (Part B) is not to be added in working out the person’s Part B rate (see clauses 29AA and 29D in items 18 and 21 respectively).

Item 23 adds a note at the end of subclause 38AA(1) of Schedule 1 which explains that for certain individuals, energy supplement (Part A) is not to be added in working out the person’s Part A rate (see clause 6A in item 7).

Item 24 adds a note at the end of subclause 38AF(1) of Schedule 1 which explains that for certain individuals, energy supplement (Part A) is not to be added in working out the person’s Part A rate (see clause 25C in item 14).

Part 2 - Energy supplement under the social security law

Amendments to the Social Security Act

Item 25 repeals the formula in subsection 17(8) and substitutes a new formula that does not contain an energy supplement component. The formula in subsection 17(8) is used to determine the income cut-out amount for the purposes of working out the number of weeks in a person’s lump sum preclusion period under subsection 1170(4).

Item 26 repeals the definition of energy supplement component from subsection 17(8). This definition is no longer required as result of the amendments made by item 25.

Item 27 is an application provision that provides that the amendments made to subsection 17(8) by this Part only apply in relation to lump sum preclusion periods beginning on or after the commencement of this item.

Item 28 inserts new section 22. Section 22 sets out when a person becomes a transitional energy supplement person . While a person remains a transitional energy supplement person they will continue to receive energy supplement after commencement of this Schedule.

New subsection 22(1) provides that a person becomes a transitional energy supplement person on 19 September 2016 if on that day:

•        a) the person was receiving an income support payment where energy supplement was used to work out the rate of that payment; or

•        b) energy supplement was payable to the person under section 1061UA; or

•        c) subsection 62B(2) of the Veterans’ Entitlements Act applied in relation to the person; or

•        d) energy supplement was payable to the person under section 118PA of the Veterans’ Entitlements Act; or

•        e) under the scheme referred to in section 117 of the Veterans’ Entitlements Act, the Commonwealth was liable to pay the person energy supplement for the person’s clean energy underlying payment; or

•        f) subsection 238A(1) of the Military Rehabilitation and Compensation Act applied in relation to the person; or

•        g) under the scheme referred to in section 258 of the Military Rehabilitation and Compensation Act, the Commonwealth was liable to pay the person energy supplement for the person’s clean energy underlying payment; or

•        h) the person was receiving a payment under the ABSTUDY scheme (also known as the Aboriginal Study Assistance Scheme) that included an amount identified as living allowance and the person qualified for an energy supplement under that scheme.

New paragraph 22(1)(a) applies to a person receiving farm household allowance under the Farm Household Support Act where energy supplement is used to work out the rate of that allowance. Subsection 91(3) of the Farm Household Support Act treats a reference in the Social Security Act to an income support payment as including a reference to farm household allowance under the Farm Household Support Act.

Paragraph 22(1)(a) will also be applicable to certain persons in receipt of a Defence Force Income Support Allowance (DFISA).  DFISA is payable to those persons in receipt of a social security or benefit that is reduced, including to nil, because of the inclusion of disability pension paid to the person under the Veterans’ Entitlements Act as income in the assessment of that pension or benefit.

Those people in the circumstances where the social security or benefit is reduced to nil are commonly referred to as DFISA-only recipients.  Under paragraph 23(1D)(f) they will be taken to be receiving the particular pension or benefit for which they qualify and they remain subject to the obligations associated with that pension or benefit.

It should also be noted that income support payment, as defined in section 23 of the Social Security Act, includes a service pension under the Veterans’ Entitlements Act.

New subsection 22(2) provides that a person ceases to be a transitional energy supplement person on a day on or after 20 September 2016 (and can never again become a transitional energy supplement person) if none of paragraphs 22(1)(a) to (h) apply to the person on that day.

A note to subsection 22(2) alerts the reader that subsections 22(3) to (6) set out certain situations in which a person will be taken to be receiving a payment on a day and therefore subsection 22(2) will not apply to the person on that day.

New subsection 22(3) applies to treat a person as receiving an income support payment for new paragraph 22(1)(a) if, before 19 September 2016, the person receives a rate of a social security payment that is greater than nil (where energy supplement was used to work out that rate) and the person’s rate of payment goes to nil on a day on or after 19 September 2016 (where energy supplement was used to work out that rate).

The person must, on the day before the person’s rate goes to nil, have been receiving a social security payment at a rate greater than nil and energy supplement must have been used to wor