Bills Digest no. 90 2009–10
Families, Housing, Community Services
and Indigenous Affairs and Other Legislation Amendment (2009 Measures) Bill
2009
WARNING:
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 status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background and Main Provisions
Financial implications
Contact officer & copyright details
Passage history
Families, Housing, Community Services
and Indigenous Affairs and Other Legislation Amendment (2009 Measures) Bill
2009
Date introduced: 25 November 2009
House: House of Representatives
Portfolio: Families, Housing, Community Services and Indigenous Affairs
Commencement: There are a variety of commencement provisions set out in
the table on pages 2 to 4 of the Bill.
Links: The relevant links to the Bill, Explanatory Memorandum
and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can
be found at ComLaw, which is at http://www.comlaw.gov.au/.
The Bill has no unifying theme. It
contains a collection of disparate measures including:
- amendments to the Aboriginal Land Rights (Northern Territory)
Act 1976 to schedule land to be granted as Aboriginal land
- some minor amendments to the income management regime
- amendments to the operation of the Social Security Appeals
Tribunal
- a beneficial amendment to the gifting provisions in the means
test for pensions and benefits
- amendments to provisions relating to beneficiaries of
discretionary trusts to address issues arising from a recent Federal Court case
- amendments to the notification provisions relating to the Baby
Bonus, and
- amendments to correct minor anomalies and technical errors in the
Family Assistance Law, the Social Security Law and the Corporations
(Aboriginal and Torres Strait Islander) Act 2006.
Items 1 and 2 of Schedule 1 add several parcels of
land to Schedule 1 of the Aboriginal Land Rights (Northern Territory) Act
1976 so that they can be granted to Aboriginal Land Trusts. According to Minister
Macklin in her second reading speech of 25 November 2009:
The Loves Creek parcel of land is subject to a partially
heard land claim. Scheduling this land under the Aboriginal Land Rights
(Northern Territory) Act 1976 follows agreement between the Central Land
Council and the Northern Territory government. The scheduling will resolve the
claim and allow the land to be granted to the appropriate Aboriginal land
trust.
Patta (near Tennant Creek) is also the subject of an
agreement between the Central Land Council and the Northern Territory
government. Granting this land will form part of an agreement for settling
broader native title claims.
The Alice Valley Extension (East) parcel of land will be
leased by the land trust to the Northern Territory as an extension of the West
MacDonnell National Park.[1]
The first two schedulings are thus a means to bring claims
to an end though an agreement between traditional owners, the Central Land
Council and the Northern Territory Government.
The third scheduling will clear the way for land which is
presently Northern Territory government owned parkland, joining neighbouring
lands which were last year scheduled as Aboriginal land, in becoming part an
enlarged leased-back West MacDonnell (Territory) National Park. Although some tour guide companies have expressed concern
about terms of access if and when the whole expanded park becomes Aboriginal
owned, it is a process which has been gone through before and is part of a
process which was provided for by the Parks and
Reserves (Framework for the Future) Act 2003 (NT). This Act followed the High Court decision in Western Australia v Ward (2002) 213 CLR 1 which raised the prospect of protracted and possibly
successful land claims over Territory parks. The Act provided a framework for
negotiations between the Territory and the traditional Aboriginal owners of
certain parks and reserves for the establishment, maintenance and management of
a comprehensive system of parks and reserves.
Schedule 2 makes three changes to the income management
provisions in the Social Security law. The second and third are minor
administrative changes, but the first is slightly more significant. It enables
the Family Responsibility Commission (FRC) to order income management in Cape
York on someone whose income support is the age pension or carer payment.
The FRC was set up by Queensland legislation in 2008 and
provided for a Commissioner, supported by subsequently appointed local
commissioners, to advance the Cape York Welfare Reform objective in the four
communities of Aurukun, Coen, Hope Vale and Mossman Gorge. The age pension and
carer payment were not in the category of welfare payments originally scheduled
as susceptible to an income management order in Cape York, even though they
were included in income management arrangements elsewhere in Australia. This
change to include these payments in the income management arrangements for Cape
York has been requested by the FRC.[2]
Item 1 of Schedule 2 amends the definition of a ‘category
P welfare payment’ in section 123TC of the Social Security (Administration)
Act 1999 to allow the application of income management to people receiving
age pension or carer payment.
Item 5 inserts new section 123WJA. It provides
that where a person:
- has been subject to income management, and
- has ceased to receive income support, but
- has not yet been paid the remaining money in their income
management account, and,
- has returned to income support that is income managed,
the remaining money will stay in their income management
account.
Item 6 replaces subsection 123WL(3) with a new
subsection 123WL(3). The new subsection expands the options for
disbursement of residual funds in a person’s income management account after
their death. This change is being made to clarify how funds should be disbursed
where there is more than one person involved in carrying out activities
relating to the deceased person’s estate.
Schedule 3—Social
Security Appeals Tribunal
The main amendments in this schedule apply to the procedures
and powers of the Social Security Appeals Tribunal (the SSAT).
The SSAT is the first level of external review of decisions
made by Centrelink and the Child Support Agency (CSA) about social
security, family assistance, education or training, and child support payments.
It is statutory body established under the Social
Security (Administration) Act 1999 to conduct merits review of
administrative decisions made under the social security law, the family
assistance law, child support law and various other pieces of legislation. The Social
Security (Administration) Act 1999, the A New Tax System (Family
Assistance) (Administration) Act 1999 and the Child Support
(Registration and Collection) Act 1988 set out the powers, functions and
procedures of the SSAT.
Currently under the Child Support (Registration and
Collection) Act 1988, the SSAT has the ability to conduct pre-hearing
conferences to assist in the conduct and consideration of a review[3] and, if in the course of such a pre-hearing conference the parties reach
agreement, then the SSAT can make a decision in the terms of the agreement that
has been reached.[4] The ability to make such a decision without any further hearings leads to a
more speedy resolution of issues and disputes before the SSAT. As the SSAT
states in its Annual Report:
The valuable experience the SSAT has now gained in conducting
pre-hearing conferences in ‘Change of Assessment’ appeals in the child support
jurisdiction has contributed to the improved timeliness in these cases. A
pre-hearing conference aims to clarify the issues in dispute, explain the
hearing process to the parties, identify addition (sic) information required
for the hearing (which might require the issue of directions) and explore the
possibility of an agreement between the parties, which may mean that there is
no need for a hearing.[5]
Items 2 and 7 of Schedule 3 amend the A New
Tax System (Family Assistance) (Administration) Act 1999 and the Social
Security (Administration) Act 1999 respectively to allow the SSAT to
conduct pre-hearing conferences and make decisions when agreements are reached,
in social security and family assistance law appeals.
Amendments also will change the titles of the ‘Executive
Director’ and ‘Director’ in the various governing laws to ‘Principal Member’
and ‘Senior Member’ ‘to bring the SSAT into line with other Commonwealth
tribunals’.[6] (See Part 2 of Schedule 3).
New sections 128A, 128B and 128C of the A
New Tax System (Family Assistance)(Administration) Act 1999 give the
Principal Member the ability to directly require from a person certain
documents considered relevant, and allows members and staff of the SSAT to
inspect, copy and retain documents. Similar amendments are made to the Social
Security (Administration) Act 1999.[7]
It will be a new offence not to comply with a request from
the Principal Member for information, and it is noted in the Explanatory
Memorandum that the relevant provisions will not commence until 28 days after
the amending Act receives Royal Assent:
Accordingly, there is sufficient time for individuals to
become aware of the new offence created by this provision before it comes into
effect.[8]
The Social Security Act 1991 contains provisions
which penalise income support recipients who give away assets without adequate
financial return. Where the value of assets disposed of exceeds $10 000 in a year
or $30 000 in a five year period, the value of assets in excess of these limits
is still counted among the assets of the person for a period of five years.
This may result in a lower rate of payment than would otherwise be the case.
The amendments in this schedule ensure that it is clear that
where disposed of assets are returned to the person, they will not be double
counted when assets are assessed for means test purposes. The deemed asset
value that resulted from the disposal could otherwise be counted as well as the
value of the actual returned asset.
Item 4 of Schedule 4 inserts new section 1126E which gives effect to this change.
Following a Federal Court decision in 2008, the provisions
of the Social Security Act 1991 relating to income support recipients
who are the beneficiaries of private trusts need to be clarified.[9]
The mechanism for determining whether the income of the
trust is income of the income support recipient for means test purposes was
brought into question in the court case. The amendments in this schedule have
the following rationale according to the Explanatory Memorandum of the Bill:
These amendments clarify that, where a social security
customer or veterans’ affairs pensioner is the beneficiary of a discretionary
trust, and the trustee of that trust has a duty to provide for the maintenance
of that customer or pensioner, even if the customer or pensioner receives a
social security payment or veterans’ affairs pension, then the trust should be
assessed as being a controlled private trust in respect of that beneficiary. It
should not be relevant that there are other future beneficiaries of the trust,
when those parties are not currently receiving any benefits from the trust.[10]
Items 1–3 of Schedule 5 insert new paragraphs
1207V(2)(c) and 1207V(2)(d) and new subsections 1207V(2A)–(2E) into the Social Security Act 1991 to clarify the operation of the
control test for private trusts.
Items 4 to 6 insert new paragraphs and subsections
into the Veterans’ Entitlements Act 1986 with the same effect.
In 2008 the Baby Bonus paid for new births and adoptions was
converted from a lump sum payment to a series of 13 fortnightly payments. This
raised the possibility that in some cases the person with care of the child
concerned could change over the period of payment. This would require the
payment to be made to the new carer. The amendments in this schedule introduce
a new requirement for the carer of a child for whom Baby Bonus is being paid to
notify Centrelink as soon as practicable if that child leaves their care. This
will help to ensure that the initial carer will not receive an overpayment of
Baby Bonus.
Item 1 of Schedule 6 adds new sections 47B and 47C which provide for the notification requirement. The manner in which the
notification is to occur is to be determined by the Secretary.
According to the Explanatory Memorandum, the Bill has a
negligible financial impact.
[1]. J Macklin
MP, (Minister for Families, Housing, Community Services and Indigenous
Affairs), ‘Second Reading Speech: Families, Housing, Community Services and
Indigenous Affairs and Other Legislation Amendment (2009 Measures) Bill 2009’, House
of Representatives, Debates, 25 November 2009, p. 12781.
[2]. Ibid., pp.
12781–12782.
[3]. Child
Support (Registration and Collection) Act 1988, section 103.
[4]. Ibid.,
section 103W.
[5]. Social
Security Appeals Tribunal, Annual Report, Commonwealth of Australia,
2008–2009, p. 27.
[6]. Explanatory
Memorandum, Families, Housing, Community Services and Indigenous Affairs and
Other Legislation Amendment (2009 Measures) Bill 2009, p. 7.
[7]. Item 6 of
Schedule 3, new sections 165A, 165B and 165C.
[8]. Explanatory
Memorandum, op. cit., p. 10.
[9]. Elliott
v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1293 viewed on 29 January 2010, http://www.austlii.edu.au/au/cases/cth/FCA/2008/1293.html
The decision was upheld on appeal to the Full Court of the Federal Court of
Australia in Secretary, Department of Families, Housing, Community Services
and Indigenous Affairs v Elliott [2009] FCAFC 37, viewed on 29 January
2010, http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/37.html
[10]. Explanatory
Memorandum, op. cit, p. 22.
Dale Daniels and Diane Spooner
29 January 2010
Bills Digest Service
Parliamentary Library
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