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Social Services Legislation Amendment (Overseas Welfare Recipients Integrity Program) Bill 2019

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2019

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

SOCIAL SERVICES LEGISLATION AMENDMENT

(OVERSEAS WELFARE RECIPIENTS INTEGRITY PROGRAM) BILL 2019

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 (Circulated by the authority of the

Minister for Social Services and Families, Senator the Hon Anne Ruston)



SOCIAL SERVICES LEGISLATION AMENDMENT

(OVERSEAS WELFARE RECIPIENTS INTEGRITY PROGRAM) BILL 2019

 

 

OUTLINE

 

The Social Security Legislation Amendment (Overseas Welfare Recipients Integrity Program) Bill 2019 (the Bill) gives effect to a 2018-19 MYEFO measure, and will amend the Social Security (Administration) Act 1999 to introduce a requirement for certain welfare recipients aged 80 years and over, who have been residing permanently overseas for at least two years, to provide a proof of life certificate at least once every two years.

 

 

FINANCIAL IMPACT STATEMENT

 

MEASURE

FINANCIAL IMPACT OVER THE FORWARD ESTIMATES from 2019-20 to 2022-23 (DSS administered)

Schedule 1 - Proof Of Life Certificates

$221.1 million

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

 

 

 



SOCIAL SERVICES LEGISLATION AMENDMENT

(OVERSEAS WELFARE RECIPIENTS INTEGRITY PROGRAM) BILL 2019

 

 

NOTES ON CLAUSES

 

Abbreviations used in this explanatory memorandum

 

 

  • Social Security Act means the Social Security Act 1991 ;

 

  • Social Security Administration Act means the Social Security (Administration) Act 1999 ;

 

 

 



Schedule 1 - Proof of Life Certificates

 

 

Summary

 

This Schedule introduces a requirement for certain welfare recipients aged 80 years and over, who have been absent from Australia for at least two years, to provide a proof of life certificate at least once every two years in accordance with a notice sent by the Secretary.  This Schedule also outlines the consequences for not giving the Secretary a proof of life certificate which complies with the legislative requirements, including suspension and cancellation of payment.  A payment may be resumed, with arrears paid, following suspension or cancellation where certain legislative requirements are met.

 

Background

 

There are approximately 96,000 people residing permanently overseas receiving an Australian social security payment, with the majority receiving the Age Pension.   Currently, Services Australia (formerly the Department of Human Services) mostly relies on voluntary reporting by family members or friends of the death of a pension recipient overseas.  Payments can continue until this is reported despite there no longer being a legal entitlement.

 

Administrative data shows that there is a disparity in the death rate of pensioners aged 80 years and above overseas, compared to pensioners in Australia.  This disparity is significantly large enough to suggest that the Services Australia is not being notified in all cases, or in a timely manner, when a person dies overseas.

 

This Schedule introduces a requirement for welfare recipients aged 80 years and over, who have been absent from Australia for at least two years, and receiving certain social security payments, to give a proof of life certificate at least once every two years when notified by the Secretary.  Similar life certificates or proof of life requests are commonly used to confirm eligibility for pensions by European countries, and have been in use in some countries for more than a decade.  Some countries use these certificates annually or biennially, and the process is not restricted to a particular age group.

 

Welfare recipients who are recipients of Age Pension, Disability Support Pension, Widow B Pension, Wife Pension and Carer Payment, and meet the relevant criteria, will be affected.  This will include those recipients who have been residing overseas for at least two years under the following provisions:

 

·          those whose payment has an unlimited portability period under the Social Security Act; or

·          those receiving a payment under one of Australia’s international social security agreements.

 

No amendments to international social security agreements are required as a result of these changes.

 

Under section 63 of the Social Security Administration Act, affected recipients will be required to give a proof of life certificate that complies with the legislative requirements within 13 weeks of being given a notice by the Secretary.

 

The Schedule outlines certain minimum requirements which must be included in the proof of life certificate.  One of these requirements is for the proof of life certificate to be certified by an authorised certifier.  A list of authorised certifiers will be specified by the Secretary by legislative instrument.  The legislative instrument will provide sufficient flexibility to add additional third parties to the instrument given that equivalent classes of persons across different jurisdictions may be hard to initially define and identify.   Examples of third parties may include a judge or magistrate, a medical doctor, or authorised consular staff at an Australian embassy, consulate or high commission.

 

Where the pensioner does not return a proof of life certificate to the Secretary that is compliant with section 63, or the pensioner does not enter Australia within the 13-week period from the date of the notice, under section 64 of the Social Security Administration Act, the pensioner’s payment will not be payable.  As a consequence the payment will be suspended for a period of up to 13 weeks under section 80 of the Social Security Administration Act.

 

Where a pensioner fails to give a proof of life certificate that complies with the legislative requirements, or the pensioner does not enter Australia within the 13-week suspension period, the pensioner’s payment will be cancelled under section 80 (26 weeks from the date of the notice).  These periods are consistent with suspension and cancellation arrangements which currently apply for failing to comply with other kinds of notices given by the Secretary for the purposes of social security law.

 

Should recipients give a proof of life certificate after their payment has been suspended or cancelled, the new ‘resumption of payment after cancellation or suspension - provision of proof of life certificate’ provision will apply.  Section 108 has been amended, to include a determination by the Secretary under new section 85AA as a favourable determination.  By requiring the Secretary to undertake a review under section 126 of the Social Security Administration Act, and as a result of the review, to determine that the suspended or cancelled payment is payable as if the payment had never been suspended or cancelled, the date of effect provisions in section 109 are enlivened.  Section 109 will apply in the calculation of the arrears payable to a recipient after their payment has been resumed.

 

Existing review mechanisms in the Social Security Administration Act will also apply.

 

The amendments made by Part 1 of this Schedule commence on 1 September 2019. The amendments made by Part 2 of this Schedule commence on 20 March 2020.

 



Explanation of the changes

 

 

Part 1 - General amendments

 

Amendments to the Social Security Act

 

Item 1 omits the reference in subsection 146V(1) of the Social Security Act, and substitutes it with ‘sections 85 and 85AA’.  This substitution accounts for the new subsection 85AA which will enable the resumption of Wife Pension.

 

Item 2 omits the reference in subsection 362A(3) of the Social Security Act, and substitutes it with ‘sections 85 and 85AA’.  This substitution accounts for the new subsection 85AA which will enable the resumption of Widow B.

 

Amendments to the Social Security Administration Act

 

Item 3 inserts new subsections 63(2AA), (2AB), and (2AC) to enable the Secretary to give a notice to a person requiring the person to give the Secretary a proof of life certificate.

 

New subsection 63(2AA) outlines the cohort to whom the Secretary may give a notice.  The relevant cohort includes a person who:

 

·          is 80 years and over, and

·          is a recipient of either:

o    Age Pension,

o    Carer Payment,

o    Disability Support Pension,

o    Widow B Pension, or

o    Wife Pension, and

·          has been continuously absent from Australia throughout the previous 2 years.

 

New subsection 63(2AB) specifies that a person to whom the subsection applies has 13 weeks, beginning from the date the Secretary gives the notice, to give the Secretary a proof of life certificate that relates to the person to whom the notice is given.  Only a proof of life certificate, which has been completed and certified during the 13-week period from the date the Secretary issued the notice, will be acceptable.  However, if a person enters Australia within this 13-week period, the person is not required to give the Secretary a proof of life certificate.  This does not require the person to resume residency in Australia.

 

New subsection 63(2AC) provides that the Secretary must give a notice to a person who is included in the cohort a proof of life certificate at least once every two years.

 

 

 

 

 

Item 4 amends subsection 63(5) and provides that the Secretary may notify a person to give a proof of life certificate by sending the notice by post to the postal address last known to the Secretary, or in any other way which the Secretary considers appropriate. The amendment to subsection 63(7) adopts the consequence which applies to other section 63 notice provisions.  That is, if the notice does not inform the person of the effect of section 64 (the effect of failing to comply with the requirement in the notice), the consequences in subsections 64(1) and (5) do not apply.

 

Item 5 inserts new section 63A , detailing the minimum requirements that a proof of life certificate must include.  A proof of life certificate must be in a form approved by the Secretary and must:

 

·          be expressed as relating to the person, and

·          include a statement to the effect that the person is alive, and

·          be signed and dated by the person, or be signed and dated by another person if the form allows for another person to sign on the person’s behalf provided that one or more specified requirements are met, and

·          include a statement by an authorised certifier that the authorised certifier:

o    has sighted the person who is in their physical presence. Sighting the person through video conferencing will not comply with this requirement, and

o    has verified the identity of the person using the method, or one of the methods set out on the approved form, and

o    is satisfied that the person is alive; and

·          be signed and dated by the authorised certifier.

 

A proof of life certificate must also include any other information as required by the approved form.

 

Subsection 63A(6) provides that the statement made under subsection 63A(2) to the effect that the person is alive must be signed and dated by the person within 7 days of the statement which the authorised certifier makes under subsection 63A(4).

 

New subsection 63A(7) states that section 25C of the Acts Interpretation Act 1901 (Acts Interpretation Act) does not apply.  Section 25C of the Acts Interpretation Act provides that ‘where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient’.  All conditions of the proof of life certificate must be met in order for the Secretary to be satisfied that a proof of life certificate has been given.  This ensures that the integrity of this compliance mechanism is upheld, and that Australian social security payments are only being paid to recipients who are alive.

 

New subsections 63A(8), (9) and (10) detail who is an authorised certifier.  Subsection (9) provides the Secretary with a power to make a legislative instrument, to determine one or more classes of persons for the purposes of subsection (8).  In accordance with subsection 2(2) of the Acts Interpretation Act, new subsection (10) has been inserted to avoid doubt and ensure that the legal requirements for an authorised certifier have extraterritorial effect and apply to the certifier even if that certifier is outside Australia.

 

Item 6 amends paragraphs 64(1)(b) and (4)(b), to apply the consequences of failing to comply with a notice given under new subsection 63(2AB).  Under subsection 64(1), provided all the requirements are met, if a person fails to comply with a notice given under the new subsection 63(2AB), the person’s payment will not be payable.  Under subsection 64(4), if the Secretary is satisfied that it is no longer reasonable for the requirement in the notice to apply, the Secretary may determine on and after a day specified by the Secretary that subsection 64(1) no longer applies and that the payment is payable.

 

Item 7 adds ‘ general’ to the heading of section 85, in order to differentiate it from the following new section 85AA.

 

Item 8 adds new section 85AA , which details the conditions which must be met for resumption of a payment to occur after suspension or cancellation.

 

Subsection 85AA(1) outlines the conditions required for the resumption of payment after suspension.  The Secretary must, under section 126 of the Social Security Administration Act, review the suspension of a person’s social security payment, and determine as a result of the review that the social security payment is payable as if it had never been suspended where:

 

·          a person’s social security payment is suspended under section 80 due to the person’s failure to give a proof of life certificate in compliance with a notice under subsection 63(2AB), and

·          either:

o    the person gives the Secretary a proof of life certificate which was completed during the 26-week period before the certificate is given to the Secretary, or

o    the person returns to Australia.

 

A similar resumption mechanism is covered by subsection 85AA(3) in relation to Wife Pension.  The Secretary must, under section 126 of the Social Security Administration Act, review the suspension of a person’s Wife Pension, and determine as a result of the review, that Wife Pension is payable as if the payment had never been suspended where:

 

·          a person’s Wife Pension is suspended under section 80 due to their partner’s failure to give a proof of life certificate in compliance with a notice under subsection 63(2AB), and

·          either:

o    the person’s partner gives the Secretary a proof of life certificate which was completed during the 26-week period before the certificate is given to the Secretary, or

o    the person’s partner returns to Australia.

 

 

 

 

 

The currency of the proof of life certificate to the 26-week period ending on the date that it is given to the Secretary is to ensure that old certificates cannot be used.  This takes into account the 13-week period in which a person is required to give the completed proof of life certificate, as well as the 13-week suspension period before being cancelled.  Alternatively, payment may be resumed without giving a proof of life certificate where the person returns to Australia.

 

Subsection 85AA(2) outlines the conditions required for resumption of payment after cancellation.  The Secretary may, under section 126 of the Social Security Administration Act, review the cancellation of a person’s social security payment, and determine as a result of the review that the social security is payable as if the payment had never been cancelled where:

 

·          a person’s social security payment is cancelled under section 80 due to the person’s failure to give a proof of life certificate in compliance with a notice under subsection 63(2AB), and

·          the person gives the Secretary a proof of life certificate which was completed during the 12-month period before the certificate is given to the Secretary.

 

Under subsection 85AA(4), the Secretary must, under section 126 of the Social Security Administration Act, review a person’s Wife Pension, and as a result of the review, determine that Wife Pension is payable as if the payment had never been cancelled where:

 

·          a person’s Wife Pension is cancelled under section 80 due to the person’s partner’s failure to give a proof of life certificate in compliance with a notice under subsection 63(2AB), and

·          the person’s partner gives the Secretary a proof of life certificate which was completed during the 12-month period before the certificate is given to the Secretary.



The currency of the proof of life certificate to the 12-month period ending on the date that it is given to the Secretary is to ensure that old certificates cannot be used.  This takes into account the 13-week period in which a person is required to give the proof of life certificate, the 13-week suspension period before being cancelled and the 13 weeks during which a person is able to request a review after their payment has been cancelled.

 

The date of effect provisions under section 109 are enlivened by reviewing under section 126 the suspension or cancellation of a person’s payment, and determining as a result of that review that the person’s payment is payable as if it had never been suspended or cancelled.

 

The intent of determining that the social security payment is payable as if the payment had never been suspended or cancelled is to ensure that recipients who meet the requirements continue receiving the rate of pay they were previously entitled to prior to suspension or cancellation.  Additionally, any grandfathering arrangements which may have applied to their payment prior to its suspension or cancellation will be reinstated.

 

Item 9 amends the heading of Part 3, Division 9, to reference the new section 85AA.

 

Item 10 amends section 108 to insert new section 85AA into the definition of a favourable determination, for the purposes of the Part 9, Subdivision B.

 

Item 11 adds in the definition of ‘proof of life certificate’ into Subclause 1(1) of Schedule 1. It defines ‘proof of life certificate’ as having the meaning given by section 63A.

 



 

Part 2 - Cessation of widow B pension and wife pension

 

Amendments to the Social Security Administration Act

 

Item 12 inserts an ‘and’ at the end of subparagraph 63(2AA)(b)(iii) to account for the repeal of new subparagraphs 63(2AA)(b)(iv) and (v), and new subsections 85AA(3) and (4) from 20 March 2020 in the following Items.

 

Items 13 and 14 repeal the new subparagraphs 63(2AA)(b)(iv) and (v), and new subsections 85AA(3) and (4) from 20 March 2020, as Widow B Pension and Wife Pension are being ceased from that date.  Repealing these new subparagraphs and subsections aligns with the amendments made by Schedules 2 and 3 of the Social Services Legislation Amendment (Welfare Reform) Act 2018 , which commences on 20 March 2020.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

 

SOCIAL SERVICES LEGISLATION AMENDMENT

(OVERSEAS WELFARE RECIPIENTS INTEGRITY PROGRAM) BILL 2019

 

SCHEDULE 1 - PROOF OF LIFE CERTIFICATES

 

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 strengthens the integrity of social security payments by requiring overseas pension recipients aged 80 years and over, who have been living overseas for at least two years, to provide a proof of life certificate at least once every two years.

 

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 Schedule requires Australian pensioners residing overseas who are 80 years of age and over to provide a proof of life certificate every two years to continue to receive their 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 who meet the eligibility and qualification requirements.

 

The Schedule limits a person’s access to social security in situations where they meet all other relevant criteria for social security benefits, but they live overseas and do not provide a proof of life certificate.

 

The purpose of the Schedule is to uphold the integrity of the social security system, by ensuring that deceased individuals overseas who are receiving welfare benefits do not continue to receive those benefits when they have passed away.

 

The requirement of overseas pension recipients to complete and return a proof of life certificate does not change the qualification or rate payable to a recipient.  This measure requires Australian pensioners, who reside overseas, to confirm that they are alive to continue receiving their pension.  This safeguard confirms that the social security system remains appropriately targeted to financially support eligible overseas pension recipients.

 

Relevant pensioners overseas who do not give the proof of life certificate will have their pension stopped.  Pensioners will be given 13 weeks to respond to a notice to give a proof of life certificate. If there is no response, their pension would be suspended for 13 weeks.  After the 13-week suspension period has elapsed and the pensioner has not returned to Australia or contacted the Secretary, their pension would be cancelled.

 

To mitigate the risk that some pensioners may make contact after their payment is cancelled, the Secretary of the Department of Social Services will have the discretion to reinstate the payment without requiring the pensioner to return to Australia to reclaim.  A pensioner who has their payment reinstated would be paid any arrears to which they are entitled.

 

If a pensioner living overseas does not receive the proof of life request because their postal address is not correct, it is expected that they will make contact with the Services Australia following the suspension of their payment.  This contact would enable the Services Australia to provide the recipient with advice on completing the proof of life certificate and updating the recipients’ contact details in their records.

 

All recipients of welfare payments, including those residing permanently overseas, have an obligation to advise the Services Australia of any change in their circumstances, including changes to their residential or postal address.

 

As many Age Pensioners in this age cohort residing permanently overseas also receive a pension payment from their country of residence, their Australian pension is unlikely to be their only means of financial support.

 

Overseas pensioners will have a range of options available to have their certificate verified.  These options may include, but are not limited to, a judge or magistrate of a law court, a medical doctor who is registered or licensed to practice in that country, or an Australian official at an embassy, consulate or high commission.  This will provide overseas pensioners with multiple options for verifying their proof of life certificates, making this process as easy as possible.   A list of authorised certifiers will be specified by the Secretary by legislative instrument.  The legislative instrument will provide sufficient flexibility to add additional third parties to the instrument given that equivalent classes of persons across different jurisdictions may be hard to initially define and identify.

 

 

 

 

To the extent that the changes in this Schedule may limit the right to social security, these limitations are reasonable and proportionate to the policy objective of ensuring a sustainable and well-targeted payment system into the future.

 

Right to equality and non-discrimination

 

To avoid doubt, this Schedule is compatible with the right to equality and non-discrimination contained in articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR).

 

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 (see Human Rights Committee (CCPR) General Comment No. 18).

 

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 (see CCPR General Comment No. 18).

It is important to note 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 (CESCR, General Comment No. 20).

 

This Schedule requires Australian pensioners overseas who are 80 years of age to provide a proof of life certificate every two years to continue to receive their payment.  There will be no differential treatment on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property or birth.

 

Recipients residing overseas generally have no contact with other Australian Government agencies, such as the Australian Taxation Office or Medicare, which could otherwise be used to verify they are still alive.

 

Voluntary third party reporting (such as by family members) is the primary method that the Services Australia learns of the death of an overseas pensioner.

 

Administrative data shows that there is a disparity in the death rate of pensioners aged 80 years and over overseas compared to pensioners in Australia.  This disparity is significantly large enough to suggest that the Services Australia is not being notified in all cases, or in a timely manner, when a person dies overseas.  As a result, it reasonable and proportionate to limit this new requirement to overseas pensioners aged 80 years and over.

 

This change will protect the integrity of Government outlays for welfare payments overseas, ensuring a fair and sustainable welfare system.

 

Life certificates, or proof of life requests, are commonly used by many countries around the world to confirm that their pension recipients residing abroad are still alive.

 

These countries include the United Kingdom, Germany, the Netherlands, France, Italy, India, Israel, Switzerland and Argentina.  For these reasons, this Schedule is compatible with the right of equality and non-discrimination.

 

Conclusion

 

This Schedule is compatible with human rights.  To the extent that it may limit a person’s right to social security and equality and non-discrimination, the limitation is reasonable, proportionate to the policy objective and for legitimate reasons.  The Schedule will confirm that Australian pensions continue are paid to eligible overseas pension recipients who are alive.  Verifying overseas Australian pension recipients are still alive will help to keep the system sustainable into the future.

 

 

 

 

[Circulated by the authority of the Minister for Social Services and Families, Senator the Hon Anne Ruston]