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Social Services Legislation Amendment (Portability Extensions) Bill 2021

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2019-2020-2021

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

SOCIAL SERVICES LEGISLATION AMENDMENT

(PORTABILITY EXTENSIONS) BILL 2021

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 (Circulated by the authority of the

Minister for Families and Social Services and Minister for Women’s Safety, Senator the Hon Anne Ruston)



SOCIAL SERVICES LEGISLATION AMENDMENT

(PORTABILITY EXTENSIONS) BILL 2021

 

 

OUTLINE

 

This Bill amends the social security law to include a permanent discretion to provide portability extensions for pensioners who are temporarily away from their country of residence and unable to return home within 26 weeks for reasons such as serious illness, death of a family member, natural disaster or public health crisis.

 

 

Financial impact statement

 

MEASURE

INDICATIVE FINANCIAL IMPACT OVER THE FORWARD ESTIMATES

Schedule 1 - Amendments

Cost of approximately $5.0 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

(PORTABILITY EXTENSIONS) BILL 2021

 

 

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 .

 

 

 

Clause 1 sets out how the new Act is to be cited - that is, as the Social Services Legislation Amendment (Portability Extensions) Act 2021.

 

Clause 2 provides a table setting out the commencement dates of the various sections in, and Schedules to, the new Act.

 

Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule to the Bill has effect according to its terms.

 

Schedule 1 - Amendments

 

 

Summary

 

This Bill amends the social security law to include a permanent discretion to provide portability extensions for pensioners who are temporarily away from their country of residence and unable to return home within 26 weeks for reasons such as serious illness, death of a family member, natural disaster or public health crisis.

 

Background

 

 

The amendments effected by this Bill provide for portability extensions for pensions in line with the allowable reasons for working age and family payments, such as serious accident or illness, legal proceedings or a natural disaster, as well as for public health crises.

 

From 1 April 2021, changes made to the Social Security Act allowed Age Pension and certain Disability Support Pension recipients who are temporarily overseas to apply for a portability extension if they are unable to return to Australia within 26 weeks of their departure because of COVID-19. 

 

Normally, after 26 weeks overseas, a pension recipient entitled to indefinite portability will have their rate of pension based on their Australian Working Life Residence.  Generally, 35 years Australian Working Life Residence is required to maintain the full basic rate of pension.  The extension ensures affected pensioners do not have their rate reduced after 26 weeks overseas. Supplements, such as Rent Assistance, also cease after 26 weeks.  An extension will also allow the supplements to continue to be paid after this time.

 

The changes from 1 April 2021 also allowed pensioners who were ‘grandfathered’ under portability changes in 2000 and 2014 (and remained covered by the previous portability rules) to apply for a portability extension if they ordinarily live overseas but are temporarily in Australia and unable to return home due to COVID-19.  The extension ensures they maintain their pre-existing portability entitlements.  These more generous entitlements are normally lost after 26 weeks in Australia, which may result in the pensioner receiving less pension when they are able to return home than they did under the more generous entitlements.

 

The changes from 1 April 2021 replicated arrangements previously put in place from 10 June 2020 until 31 December 2020 under the Social Security (Coronavirus Economic Response - 2020 Measures No. 10) Determination 2020 and extended to 31 March 2021 under the Social Security (Coronavirus Economic Response - 2020 Measures No. 16) Determination 2020.  These changes cease after 30 June 2021.

 

The amendments made by this Schedule commence on 1 July 2021, immediately following the expiry of the existing portability extensions for travel limitations directly related to COVID-19.

 

Explanation of the changes

 

Amendments of the Social Security Act

 

Item 1 repeals and substitutes subsections 1216(2) and (3). These subsections currently provide for additional amounts to be added to rate for an additional period ending no later than 30 June 2021 where the person is unable to return to Australia before the end of 26 weeks absence because of the impact of the Coronavirus known as COVID-19.

 

Substituted 1216(2) allows the base 26 weeks to be extended where the Secretary is satisfied the person’s absence from Australia is temporary, and the person is unable to return to Australia because of an event referred to in subsection 1216(3). New subsection 1216(3) identifies events of the same nature as those currently applying to allow extension of portability for other social security payments under section 1218C of the Act. These include a serious accident or hospitalisation involving the person or a family member of the person, a serious illness of the person or family member, the death of a family member, the person’s involvement in custody proceedings in the country in which the person is located, a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than that alleged to have been committed by the person), robbery or a serious crime committed against the person or a family member, a natural disaster in the country in which the person is located, political or social unrest, industrial action or war in the country in which the person is located.  Family member is defined in subsection 23(14) of the Act as a partner, parent, sister, brother or child or any other person the Secretary determines to be a family member for the purpose of the Act.

 

Additionally, a public health crisis affecting Australia or the country in which the person is located, or both, is included to cover events such as the current pandemic. This will allow continuing consideration to be given to persons previously granted portability extensions under now repealed subsections 1216(2) and (3), and allow further extensions if appropriate under the various application provisions from item 12 below.

 

Additionally, new subsection 1216(4) inserted by this item creates a limitation on determinations under new subsection 1216(2), requiring that the event occurred or began during the period of absence, and if the event is political or social unrest, industrial action or war, the person is not willingly involved in, or willingly participating in the event. This reflects the purpose of the extensions, which is to assist pensioners affected by unexpected circumstances beyond their control while travelling.

 

New subsection 1216(5) is a technical amendment, providing that if the Secretary determines another number of weeks under subsection 1216(2) then, immediately after that determination is made, a reference to a number of weeks in paragraph 1216(1)(a) and each reference to a number of weeks in subsection 1216(2) is taken to be a reference to that new number.

 

This makes clear the operation of the provision if the Secretary (or delegate) determines a number of extensions to a person’s portability period over time, as circumstances change. If the initial extension ultimately proves to be too short, a later extension may occur, and the later extension is taken to extend the period as originally extended, rather than the original 26 week period.

 

For example, if the Secretary initially determines that an initial 26 week period ending 31 July 2021 is to be extended to be treated as a 30 week extension ending on 28 August 2021, section 1216 is taken for all purposes to be referring to a period of 30 weeks. If, near to 28 August, it is apparent that a further extension is required, the extension is regarded as an extension of the substituted 30 week period, and so on.

 

Items 2 , 3, 4 and 5 amend sections 1220A and 1220B, which relate to the rate of portable pensions when paid overseas. Section 1220A relates to the rate of age pension, and section 1220B relates to the rate of disability support pension for a severely disabled person. In general, the rate of pension is based upon the person’s period of Australian Working Life Residence when the person is overseas for a continuous period of more than 26 weeks. This may result in the person receiving a proportional rate of pension. Consistent with additional amounts added to the rate under section 1216, these items allow for the 26 week period to be extended in the same range of circumstances, to allow the full rate of pension to be paid for longer.

 

The provisions insert new subsections 1220A(1A), (1B) and (1C), and subsections 1220B(1A), (1B) and (1C) to identical effect to the amendments made to section 1216 above. An extension of the 26 week period (which may have been previously extended) will be available to pensioners unable return due to the effect of the specified events, including a public health crisis affecting Australia or the country in which the person is located or both.

 

This extension is only available where the Secretary is satisfied that the event occurred or began during the period of absence, and if the event is political or social unrest, industrial action or war, the person is not willingly involved in, or willingly participating in the event.

 

These items repeal subsections 1220A(6) and (7), and subsections 1210B(3) and (4), relating to the power to extend the 26 weeks for a period ending up to 30 June 2021 where the person’s absence is temporary, and the person is unable to return to Australia because of the impact of COVID-19. The new, unlimited extension power will allow extensions granted under this provision to be continued, in appropriate circumstances, and that successive extension decisions can operate correctly.

 

Items 6, 7 and 8 deal with savings provisions introduced as part of the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000  which, amongst other things, amended the portability rules for pensioners to reduce the allowable period of absence before a proportional rate of pension may apply for persons overseas. For persons already overseas when these rules were introduced, the new rules do not apply to a person as the result of the savings provisions in clause 128 of Schedule 1A to the Act unless that person returns to Australia for a continuous period of more than 26 weeks. An extension of this period, not ending after 30 June 2021, was similarly allowed for persons who were unable to leave Australia due to the effect of COVID-19. This element is repealed by item 8.

 

Item 7 now inserts new subclauses 128 (1A), (1B) and (1C) to the same effect as the subclauses inserted in earlier items, allowing extensions in the same circumstances including a public health crisis, and providing for an extension determination to be made on the same conditions that the event occurred or began during the period of return. Limitations as to when the event occurred or began relative to the period of absence also limit the Secretary’s power to make such extension determinations. Technical amendments will allow successive extension decisions to operate correctly.

 

Amendments of the Social Security Administration Act

 

Item 9 amends Subdivision B of Division 9 of Part 3 to the Administration Act to insert new section 114A. This new section varies the date of effect provisions for social security relating to a favourable determination made as the result of the new extension provisions inserted by items above, in order to allow such determination to take effect on a day earlier than otherwise permitted by that Subdivision. Where this Act passes and commences on 1 July 2021, various extensions of periods will need to be considered and if appropriate, determined, and it may not be possible for this work to be completed on 1 July 2021. Accordingly, new section 114A will allow such determination to have retrospective effect, to allow pensioner’s rates to be continuously maintained from 30 June 2021 without interruption.

 

Amendments of the Social Services and Other Legislation Amendment Act 2014

 

The Social Services and Other Legislation Amendment Act 2014 increased the period of Australian Working Life Residence, which a pensioner must have in order to receive a full rate of pension after 26 weeks outside Australia. Again, this change was not applied to pensioners already outside Australia, unless they subsequently returned to Australia for a period exceeding 26 weeks. Currently, extensions to this 26 week period are permissible under Division 4 of Part 4.2 of the Social Security Act, for periods ending no later than 30 June 2021, for reasons related to the effects of COVID-19. Division 4 of Part 4.2 of the Social Security Act is repealed by item 6 of this Bill.

 

Instead, for ease of reference, the Bill at item 10 amends item 6 of Schedule 4 to the Social Services and Other Legislation Amendment Act 2014 , and at item 11 , amends item 14 of Schedule 4 to that Act to insert new subitems to the same effect as the subclauses inserted in earlier items, allowing extensions in the same circumstances including a public health crisis, and providing for the extension determination to be made on the same conditions that the event occurred or began during the period of return. Limitations as to when the event occurred or began relative to the period of absence also limit the Secretary’s power to make such extension determinations. Technical amendments will allow successive extension decisions to operate correctly.

 

These provisions apply to periods of return starting on or after the commencement of those subitems, and a period of return starting before that commencement where the person is in Australia immediately prior to that commencement and the 26 weeks has not expired, or where the Secretary has, under the provisions in force prior to 1 July 2021, determined a longer period, such that the period ended at the end of 30 June 2021.

 

Application provisions

 

Items 12 to 15 are application provisions. The amendments of sections 1216, 1220A, 1220B and clause 128 of Schedule 1A made by this Schedule apply to the following:-

 

·          a period of absence from Australia or return to Australia, as the case may be, starting on or after the commencement of the item;

·          a period of absence from Australia or return to Australia, as the case may be, starting before that commencement, where the person is absent from Australia or in Australia immediately before that commencement and where:

            (i)         the 26 weeks mentioned had not ended immediately before that commencement; or

            (ii)        the Secretary had determined another number of weeks with the result that the period referred to ended at the end of 30 June 2021.

 

If the Secretary has made a prior determination of a period of absence or return under now repealed provisions, then at the commencement of each such subitem, the amendments made by this Schedule apply as though the reference to 26 weeks in each of the provisions is taken to be a reference to that other number of weeks.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

SOCIAL SERVICES LEGISLATION AMENDMENT

(PORTABILITY EXTENSIONS) BILL 2021

 

 

This Bill 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 Bill

This Bill amends the social security law to include a permanent discretion to provide portability extensions for pensioners who are temporarily away from their country of residence and unable to return home within 26 weeks for reasons such as serious illness, death of a family member, natural disaster or a public health crisis.

Human rights implications

The Bill engages the right of everyone to social security in Article 9, and 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 in living conditions in Article   11 of the International Covenant on Economic, Social and Cultural Rights.

Access to portability arrangements for age pensioners (and certain recipients of the disability support pension) promotes human rights because the extension prevents pension entitlements being affected for extended absences from Australia or the recipient’s home country for unexpected reasons beyond the pensioner’s control.

Conclusion

This Bill is compatible with human rights because it promotes the protection of human rights for pensioners. 

 

 

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