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Social Security (Administration) Bill 1999
Bills Digest No. 1 1999-2000
Social Security (Administration) Bill 1999
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal stat us. Other sources should be consulted to determine the subsequent official status of the Bill.
Social Security (Administration) Bill 1999
The Bill is largely of an administrative nature and consolidates various provisions of social secu rity legislation without altering their effect. It is not proposed to alter the eligibility for existing payments or the rate of payment, although:
- amendments to eligibility and portability for special benefits could affect current entitlements, and
- a time limit for review may result in people not being able to recover amounts to which they were entitled and were not paid or underpaid.
The Social Security Act 1991 (the 1991 Act) replaced the Social Security Act 1947 (the 1947 Act) as the principal legislation regarding income support payments and other benefits for eligible persons. The 1991 Act replaced the 1947 Act as part of a similar process in which this Bill operates, i.e. to rewrite and restructure the relevant Act to make it more easily understood without changing the structure of eligibility of the pensions and benefits available. The 1991 Act’s rewrite also dealt with changed legislative drafting techniques and updating the wording of the Act. This was expressed by the then Minister in the second reading speech for the 1991 Act which stated:
The object of this Bill is to overcome the problem of the readability by using a 'clear English' drafting style and format. That style and format should make it a more accessible piece of legislation that ordinary Australians can reasonably be expected to understand.
While the eligibility criteria, reasons for discontinuance and certain other matters are specific to the appropriate pension or benefit, there are also a number of matters that are common t o a large number of pensions and benefits. This is particularly true of administrative matters such as the method of lodgement of claims, the provision of information, protection of the payment from alienation through such measures as garnishee orders and recipient obligations. In the 1947 Act, such matters were contained in their own provisions in much the same structure as proposed by this Bill. The 1991 Act was drafted with the aim of each pension or benefit being self-contained so that all matters to do with the pension or benefit could be found together. However, certain matters common to all payments are contained in separate parts of the Act, including matters such as overpayment and debt recovery; review of decisions (first an internal review, followed by the Social Security Appeals Tribunal and finally by the Administrative Appeals tribunal); and general administrative provisions. The actual rate of payment is contained in separate Modules, so that an important aspect of the pension or benefit cannot be ascertained by reference to the individual part dealing with a payment. (In practice the Act is of little or no use in determining the rate of payment of a pension or benefit once a pension or benefit has been in force for more than a short period of time as indexation of benefit rates makes the figure listed in the Act fairly meaningless other than to serve as a basis point).
For example, the Aged Pension is dealt with in part 2.2 of the 1991 Act which deals with the entire procedure for the payment, other than the calculation of the rate of payment, including matters such as qualifications for the pension, claims, payment, pro tection, recipient obligations, termination, rate reduction, determinations and bereavement payments. The second reading speech for the 1991 Bill noted two aims of the rewrite, first making each provision as simple and easy to read as possible and, secondly to make 'the arrangement of provisions in the Act logical and easy to follow'. A consequence of making the pension and benefit provisions largely self-contained was an increase in the length of the Act as provisions were repeated in each part even though they are the same or substantially similar. Another consequence has seen the ability to amend the various administrative provisions for a payment on its own, so that minor differences have arisen in provisions dealing with essentially the same matter.
This Bill reflects the work of a further review of the drafting of the 1991 Act, although not on the scale of the rewrite that replaced the 1947 Act. The major change to be implemented is the grouping of standard administrative provisions which will be removed from the parts dealing with the various pensions and benefits and their regrouping in their own parts. In that regard the Bill could be seen as closer to the structure of the 1947 Act than the self-contained approach adopted in the 1991 Act. The reason given for the amendments in the second reading speech for this Bill is:
….subsequent experience with the Social Security Act 1991 indicates that these aims [to make the Act more comprehendible and adaptable] could be better achieved by consolidating the technical rules provisions of that act.
The second reading speech also lists the aims of the project which resulted in the Bill, which include:
- Consistency between payments,
- Facilitating movements between payment types, and
- Ensuring that the Act is as short as possible because it avoids unnecessary repetition.
The Minister estimates in the second reading speech that the Bill will reduce the size of the legislation by approximately 500 pages. The current reprint of the 1991 Act is 2577 pages without notes and 2797 pages including the notes.
The second reading speech for the Bill states:
However, the Bill does not contain any provisions relating to qualification, payability, rates, overpayments, debt recovery, portability or international social security agreements.(1)
This has been disputed by the National Welfare Rights Network which, in a submission referred to the Senate Community Affairs Legislative Committee, argued:
- Substituted residency requirements for special benefits contained in clause 30 will remove the statutory right of holders of certain visa classes to be eligible for special benefit. (However, as with the current legislation, paragraph 30(b)(iii) provides that a person will be eligible to claim special benefits if the visa they hold falls within a class of visas determined by the Minister to be one to which clause 30 applies. Eligibility under this paragraph will depend on the Minister making such a determination, rather than the right to claim being contained in the legislation as it currently is.)
- Proposed sections 30 and 51 will mean that special benefits are only payable in Australia, whereas currently they may be payable overseas where a person is temporarily absent from Australia. ( Clause 51 lists the benefits, allowances and pensions that are payable outside Australia, which are of a long term nature such as age pensions and carers benefits. The special benefit is not included on the list and therefore is not payable outside Australia whereas under the current legislation it is legally possible for the benefit to be paid overseas. However, clause 51 does not mean that a person ceases to be eligible for the benefit while they outside Australia on a temporary basis, only that the benefit is not payable outside Australia.)
- The proposed time limit on review of social security decisions (12 months) could adversely effect people who have had benefit payments reduced where they should not have been or where a person is subject to a compensation preclusion period that should not apply. In such cases people who have applied and would have been eligible for a benefit, or a benefit at a greater rate, would not be able to seek review after the expiration of the 12 month time limit except where there are special circumstances ( clauses 128 and 142 ). As there is no current time limit on review this is a new restriction on the ability of a person to recover underpayments. Against this must be the weighed the administrative need to end cases and destroy relevant files, which currently are destroyed after 12 months, although a file may remain active for more than 12 months after a decision has been taken if the person continues to receive assistance.
As the Bill largely involves a regrouping and minor rewrite of provisions of the 1991 Act without any major policy alterations this Digest will not extensively examine the individual clauses of the Bill. Some of the more notable provisions are:
Proposed Subdivision B of Part 3 of the Bill deals with cases when claims will not be necessary and claims are deemed to have been made. Clause 12 provides that if a person is receiving an income support payment and they have become qualified for another payment (which may include a payment with a lower benefit) and the Secretary of the Department of Family and Community Services determines that they are to be transferred to the other payment, the person will be deemed to have made an application for the other payment to which they qualified at the time that the Secretary makes the determination. Such a determination by the Secretary may only be made where the person has ceased to qualify for the benefit they were previously receiving unless the transfer is authorised by another part of the social security legislation.
Clause 13 deals with situations where a person has contacted the Department regarding a claim for a payment for which they are qualified and does not lodge a claim for that payment when they first contact the Department. In such cases the person will be deemed to have made a claim from the date of contact so long as a claim is lodged with in the allowable period for the payment.
Where a request has been made for a recipient or their partner’s tax file number (TFN) and the request has not been satisfied, the pension or benefit will not be payable unless the relevant TFN is supplied, although the Secretary will be given power to exempt a person from this requirement so long as steps are taken to ascertain the relevant TFN ( clause 75 and 76 ).
Clause 86 deals with cases where a change to payment rate is made as a result of a change to a computer grogram. In such a case the decision of the computer will be deemed to have been a decision of the Secretary. Similar rules will apply in relation to computer transfers.
Clause 127 provides that an application for an internal review of a decision of the Department must be made within a year of the applicant being notified of the decision.
Clause 162 will allow the SSAT to determine matters on the basis of written submissions only if the Executive Director determines that the matter could be determined fairly without oral submissions. However, if such a determination is made, the parties involved are to be notified and may make submissions to the SSAT as to why oral hearings should be allowed. If the SSAT is satisfied, after consulting the submissions, that oral evidence should be heard the SSAT may proceed to hear the oral evidence. Clause 163 provides that similar rules for a review without oral submissions are to apply where a party has stated that oral evidence will not be submitted.
1. House of Representatives, Hansard , 3 June 1999, p. 5936.
15 August 1999
Bills Dige st Service
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