Explanatory Memorandum
(Circulated by authority of the Minister for Family and Community Services, Senator the Honourable Jocelyn Newman)Schedule 1 - Amendment of the Social Security Act 1991
Part 1 - Beneficiaries leaving Australia
This Part amends the international portability provisions of the Social Security Act 1991 - that is, those provisions which deal with the rules for payment of social security payments when the customer leaves Australia temporarily.
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- some consequential amendments are required to the Social Security (Administration) Act 1999 on account of these amendments. These consequential amendmentsare contained in Part 3 of Schedule 2.
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- in addition, other consequential amendments are required to the A New Tax System (Family Assistance) Act 1999 to ensure consistent portability arrangements apply in relation to non-residents - as to which see Schedule 8.
At present, each payment has its own "international portability" rules, and while they are for the most part similar, there are many inconsistencies. These amendments will standardise those rules in a central area of the Act, with a standard maximum portability period of 26 weeks (in most cases), and will effect the necessary consequential amendments to remove the now-redundant provisions from the provisions relating to each payment.
New rules to be subject to maintaining qualification for the benefit
A key feature of the new rules is that presence in Australia per se is no longer to be required as a criterion for qualification for any of the payments (although all payments retain the requirement that a customer be an Australian resident). However, the facility for portability of the payment is subject to the customer remaining qualified for it. That is to say, the specific qualification requirements of the payment may effectively require a customer to remain in Australia in order to maintain qualification for the payment, and it is intended that this specific requirement should prevail over the more general provision relating to 26 weeks portability (see new section 1212E). This requirement is illustrated by the following examples.
Example 1: The new provisions will provide overseas portability in relation to newstart allowance for up to 26 weeks; however, to qualify for newstart allowance, a person must comply with the activity test - see s601, and the following sections. In practice, such a person will have limited opportunity to use the portability provisions because of the overriding requirement to comply with the activity test, which is intended to prevail in this case.
However, this does not mean that the portability provisions could never apply to a person receiving newstart - it may transpire that the person obtains an exemption from the activity test ( - see s602 and the following sections), in which case the person could gain full access to the portability provisions.
Example 2: Remote area allowance may be paid as an "add-on" to a person receiving newstart, if the person is physically present in the remote area. (See Module J to Benefit Rate Calculator B, - point 1068-J1)
In accordance with s14 (2), a person may be temporarily absent from the remote area for up to 8 weeks, after which the person ceases to qualify for remote area allowance. It is desired that this specific provision should prevail over the general portability provisions introduced by this proposal.
In addition, the opportunity is taken to repeal redundant provisions (such as the requirement to provide departure certificates), and to generally tidy up the relevant provisions.
This item repeals subsection 14(3), which is a requirement that a person be "in Australia" in order to receive remote area allowance.
This item repeals subsection 43(2), which is a redundant provision relating to departure certificates.
This item repeals section 97, which is a redundant provision relating to departure certificates.
This item repeals subsection 147(2), which contains redundant provisions relating to portability and departure certificates.
This item amends subsection 198(4) (relating to qualification for carer payment) to remove the requirement that a customer be "in Australia", and substitute a requirement that the customer be "an Australian resident".
This item repeals and substitutes section 198AB (which relates to carer payment). The effect of this amendment is to remove the "international portability" rules from that provision and make it subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
This item amends subsection 198AC(1) (which relates to carer payment) to remove the requirement that a person be "in Australia".
This item amends paragraph 198AC(2)(c) (which relates to carer payment) to remove the requirement that a person be "in Australia".
This item amends subsection 198AC(2) (which relates to carer payment) to remove the requirement that a person be "in Australia".
This item repeals subsection 351(2), which is a redundant provision relating to departure certificates.
This item repeals and substitutes subparagraph 408BA(2)(e)(ii), which relates to widow allowance. The effect of this amendment is to remove the requirement that a person be "in Australia".
This item repeals note 3 to subsection 408BA(2). The note relates to the requirement that a person be "in Australia" and is redundant following the amendment made by item 11.
This item repeals subsections 408BA(4), (4A) and (5) (which relates to widow allowance). The effect of this amendment is to remove the "international portability" rules from the provisions relating to that payment and make it subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
This item repeals paragraph 500(1)(c), which relates to parenting payment. The effect of this amendment is to remove the requirement that a person be "in Australia".
This item repeals section 500A (which relates to parenting payment). The effect of this amendment is to remove the "international portability" rules from the provisions relating to that payment and make it subject to the new centralised "international portability" rules in Part 4.2.
This provision amends subsection 500F(1) to prevent the expiry of the qualification of parenting-payment child in a specific circumstance relating to international portability.
New section 1218C of the Bill provides for extension of a person's portability period in the exceptional circumstance listed in that section (eg serious illness, natural disaster, etc). This facility is available in relation to all payments; however, in the case of parenting payment it is clear that the ability to obtain an extension would be illusory if the qualification of the child in respect of whom the parenting payment was being paid should expire.
This section will automatically extend the qualification of a parenting payment child to the extent that the person receiving the parenting payment for the child obtains an extension of his or her portability period under new section 1218C.
This provision amends s500G to prevent the expiry of the qualification of parenting-payment child (being a child born outside Australia) in a specific circumstance relating to international portability.
New section 1218C of the Bill provides for extension of a person's portability period in the exceptional circumstance listed in that section (eg serious illness, natural disaster, etc). This facility is available in relation to all payments; however, in the case of parenting payment it is clear that the ability to obtain an extension would be illusory if the qualification of the child in respect of whom the parenting payment was being paid should expire.
This section will automatically extend the qualification of a parenting payment child to the extent that the person receiving the parenting payment for the child obtains an extension of his or her portability period under new section 1218C.
This item repeals and substitutes paragraph 540(d) (which relates to youth allowance) to remove a reference to Subdivision F (which required the person to be "in Australia", and which is repealed by item 20), and retain the requirement that a person be an Australian resident, in consistent manner with other payments under the Act.
This item amends paragraph 541(1)(b) that relates to the activity test for youth allowance. This amendment will provide that, in order to satisfy the activity test a person must be looking for work "in Australia".
This item repeals Subdivision F of Division 1 of Part 2.11, which contains the existing residency provision relating to youth allowance, and the requirement that the person be "in Australia".
The requirement that a person be "in Australia" is removed, while the requirement that a person be an Australian resident is retained - see item 18.
This item repeals and substitutes paragraph 568(c) (which relates to austudy payment) to remove a reference to Subdivision D (which required the person to be "in Australia", and which is repealed by item 22), and retain the requirement that a person be an Australian resident, in consistent manner with other payments under the Act.
This item repeals Subdivision D of Division 1 of Part 2.11A, which contains the existing residency provision relating to austudy payment, and the requirement that the person be "in Australia".
The requirement that a person be "in Australia" is removed, while the requirement that a person be an Australian resident is retained - see item 21.
This item repeals subparagraph 593(1)(g)(iii), which relates to newstart allowance, and contains a requirement that a person be "in Australia".
This item repeals a redundant note to paragraph 593(1)(g).
This item correct a cross-reference in Note 13 to subsection 593(1) to ensure that the note correctly refers to the new provisions in Part 4.2. (See item 108).
This item repeals subsection 593(1A) (which relates to newstart allowance). The effect of this amendment is to remove the "international portability" rules from the provisions relating to that payment and make it subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
This item repeals subparagraph 593(1B)(b)(iii), which relates to newstart allowance, and which contains a requirement that a person be "in Australia".
This item repeals a redundant note to paragraph 593(1B)(b).
This item repeals subparagraph 593(2)(g)(iii), which relates to newstart allowance, and which contains a requirement that a person be "in Australia".
This item correct a cross-reference in Note 10 to subsection 593(2) to ensure that the note correctly refers to the new provisions in Part 4.2.
This item repeals subsection 593(3), which relates to newstart allowance and contains an exemption from the activity test for those members of the Reserve Forces who are attending a training course outside Australia. This provision has been transferred to the new "international portability" provisions in Part 4.2 (see item 108).
This item amends subsection 601(1), which relates to the activity test for newstart allowance. This amendment will provide that, in order to satisfy the activity test a person must be looking for work "in Australia".
This amendment removes a trailing "and", and is consequential upon the amendment made by item 34.
This item repeals subparagraph 660XBA(1)(f), which relates to mature age allowance, and contains a requirement that a person be "in Australia".
This item repeals subsection 660XBA(3) (which relates to mature age allowance). The effect of this amendment is to remove the "international portability" rules from the provisions relating to that payment and make it subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
This item repeals section 660XBH, which provides that a person is not disqualified for mature age allowance if that person is a member of the Reserve Forces attending a training course outside Australia. This provision has been transferred to the new "international portability" provisions in Part 4.2 (see item 108).
This amendment removes a trailing "and" from paragraph 660XBI(1)(b), and is consequential upon the amendment made by item 38.
This item repeals paragraph 660XBI(1)(c), which relates to mature age partner allowance, and contains a requirement that a person be "in Australia".
This item repeals subsection 660XBI(2) (which relates to mature age partner allowance). The effect of this amendment is to remove the "international portability" rules from the provisions relating to that payment and make it subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
This item repeals a redundant note (Note 3) from subsection 660XBI(2).
This item repeals section 660XBK, which provides that a person is not disqualified for mature age partner allowance if that person is a member of the Reserve Forces attending a training course outside Australia. This provision has been transferred to the new "international portability" provisions in Part 4.2 (see item 108).
These items repeal subsections 660YBA(8), (9) and (10) (which relate to mature age allowance - post 30 June 1996). The effect of these amendments is to remove the requirement that a person be "in Australia", and remove the "international portability" rules from the provisions relating to that payment and make it subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
This item repeals section 660YBC, which provides that a person is not disqualified for mature age allowance (post-30 June 1996) if that person is a member of the Reserve Forces attending a training course outside Australia. This provision has been transferred to the new "international portability" provisions in Part 4.2. (See item 108).
This amendment removes a trailing "and" from paragraph 666(1)(g), and is consequential upon the amendment made by item 47.
This item repeals paragraph 666(1)(h), which relates to sickness allowance, and contains a requirement that a person be "in Australia".
This amendment removes a trailing "and" from paragraph 667(4)(c), and is consequential upon the amendment made by item 49.
This item repeals paragraph 667(4)(d), which relates to sickness allowance (persons undertaking a rehabilitation program), and contains a requirement that a person be "in Australia".
This item repeals section 674 (which relates to sickness allowance). The effect of this amendment is to remove the "international portability" rules from the provisions relating to that payment and make it subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
This amendment removes a trailing "and" from paragraph 729(2)(f), and is consequential upon the amendment made by item 52.
This item repeals paragraph 729(2)(fa) which relates to special benefit, and contains a requirement that a person be "in Australia".
This item repeals subsection 729(5) (which relates to special benefit). The effect of this amendment is to remove the "international portability" rules from the provisions relating to that payment and make it subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
This item repeals and substitutes paragraph 771HA(1)(d) (in relation to partner allowance) to omit a requirement that a person be "in Australia".
This item repeals a redundant note.
This item repeals subsections 771HA(4) and (5), which relate to special benefit. The effect of this amendment is to remove the "international portability" rules from the provisions relating to that payment and make it subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
Phasing out of special needs pensions
This item adds a new section 771PA to place a "sunset clause" on the grant of special needs pensions, which will no longer be granted after 20 September 2000. Persons currently receiving those pensions will not be affected by this amendment.
This amendment removes a trailing "and" from paragraph 774(b), and is consequential upon the amendment made by item 59.
This item repeals subsection 774(c), which relates to special needs wife pension. The effect of this amendment is to remove the "international portability" rules from the provisions relating to that payment and make it subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
This amendment removes a trailing "and" from paragraph 778(g), and is consequential upon the amendment made by item 61.
This item repeals paragraph 774(h) which relates to special needs widow B pension. The effect of this amendment is to remove the "international portability" rules from the provisions relating to that payment and make it subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
This item repeals paragraph 953(1)(e), which relates to carer allowance, and which contains a reference to "in Australia".
This item repeals paragraph 953(2)(e), which relates to carer allowance, and which contains a reference to "in Australia".
This item repeals a redundant note in subsection 953(2) - Note 3.
This item repeals paragraph 954(1)(e), which relates to carer allowance, and which contains a reference to "in Australia".
This item repeals a redundant note in subsection 954(1) - Note 3.
This item repeals and substitutes section 956 (which relates to carer allowance). The effect of this amendment is to remove the "international portability" rules from that provision and make it subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
This item amends subsection 957(1) (which relates to carer allowance) to remove the requirement that a person be "in Australia".
This item amends paragraph 957(2)(c) (which relates to carer allowance) to remove the requirement that a person be "in Australia".
This item amends subsection 957(2) (which relates to carer allowance) to remove the requirement that a person be "in Australia".
This is a consequential amendment to subparagraph 999(1)(d)(ii) to include a reference to the new subsection 999(1A) inserted by item 72.
This item inserts a new subsection 999(1A) into section 999 (which relates to double orphan pension). The effect of this amendment is to make that provision subject to the new centralised "international portability" rules in Part 4.2 (see item 108).
This item amends subparagraph 1035(1)(a)(iv) (which relates to mobility allowance) to remove the requirement that a person be "in Australia".
This item amends subparagraph 1035(1)(b)(iv) (which relates to mobility allowance) to remove the requirement that a person be "in Australia".
This item amends subparagraph 1035(1)(ba)(v) (which relates to mobility allowance) to remove the requirement that a person be "in Australia".
This item amends subparagraph 1035(1)(c)(iii) (which relates to mobility allowance) to remove the requirement that a person be "in Australia".
This item amends subparagraph 1035(1)(ca)(iii) (which relates to mobility allowance) to remove the requirement that a person be "in Australia".
This item amends subparagraph 1035(1)(d)(iii) (which relates to mobility allowance) to remove the requirement that a person be "in Australia".
This item amends subsection 1061G(1) (which relates to advance pharmaceutical allowance) to remove the requirement that a person be "in Australia".
This item amends paragraph 1061R(a) (which relates to telephone allowance) to remove the requirement that a person be "in Australia".
This item amends point 1064-C1 - Module C of Pension Rate Calculator A (which applies to age, disability support, wife pensions and carer payments -people who are not blind). The effect of this amendment is to remove from Module C (pharmaceutical allowance) the requirement that a person be "in Australia".
This item amends paragraph 1064-D1(e) - Module D of Pension Rate Calculator A (which applies to age, disability support, wife pensions and carer payments -people who are not blind). The effect of this amendment is to remove from Module D (rent assistance) the requirement that a person be "in Australia". At the same time, the amendment ensures that the rent, in relation to which rent assistance is paid, is paid on premises "in Australia".
This item repeals point 1064-H4 - Module H of Pension Rate Calculator A (which applies to age, disability support, wife pensions and carer payments -people who are not blind). The effect of this amendment is to remove from Module H (remote area allowance) the requirement that a person be "in Australia".
This item amends point 1065-C1 - Module C of Pension Rate Calculator B (which applies to age and disability support pension -people who are blind). The effect of this amendment is to remove from Module C (pharmaceutical allowance) the requirement that a person be "in Australia".
This item repeals point 1065-E3 - Module E of Pension Rate Calculator B (which applies to age and disability support pension -people who are blind). The effect of this amendment is to remove from Module E (remote area allowance) the requirement that a person be "in Australia".
This item amends point 1066-C1 - Module C of Pension Rate Calculator C (which applies to sole parent pension, bereavement allowance and widow B pension). The effect of this amendment is to remove from Module C (pharmaceutical allowance) the requirement that a person be "in Australia".
This item repeals and substitutes point 1066-D1 - Module D of Pension Rate Calculator C (which applies to sole parent pension, bereavement allowance and widow B pension). The effect of this amendment is to remove from Module D (rent assistance) the requirement that a person be "in Australia". At the same time, the amendment ensures that the rent, in relation to which rent assistance is paid, is paid on premises "in Australia".
This item repeals point 1066-H3 - Module H of Pension Rate Calculator C (which applies to sole parent pension, bereavement allowance and widow B pension). The effect of this amendment is to remove from Module H (remote area allowance) the requirement that a person be "in Australia".
This item amends point 1066A-D1 - Module D of Pension Rate Calculator D (which applies to disability support pension (people under 21 who are not blind). The effect of this amendment is to remove from Module D (pharmaceutical allowance) the requirement that a person be "in Australia".
This item repeals and substitutes point 1066A-EA2(g) - Module EA of Pension Rate Calculator D (which applies to disability support pension (people under 21 who are not blind). The effect of this amendment is to remove from Module EA (rent assistance - under 18) the requirement that a person be "in Australia". At the same time, the amendment ensures that the rent, in relation to which rent assistance is paid, is paid on premises "in Australia".
This item repeals and substitutes point 1066A-EB2(h) - Module EB of Pension Rate Calculator D (which applies to disability support pension (people under 21 who are not blind). The effect of this amendment is to remove from Module EB (rent assistance - 18 and over) the requirement that a person be "in Australia". At the same time, the amendment ensures that the rent, in relation to which rent assistance is paid, is paid on premises "in Australia".
This item repeals point 1066A-I3 - Module I of Pension Rate Calculator D (which applies to disability support pension (people under 21 who are not blind). The effect of this amendment is to remove from Module I (remote area allowance) the requirement that a person be "in Australia".
This item amends point 1066B-D1 - Module D of Pension Rate Calculator E (which applies to disability support pension (people under 21 who are blind). The effect of this amendment is to remove from Module D (pharmaceutical allowance) the requirement that a person be "in Australia".
This item repeals point 1066B-F3 - Module F of Pension Rate Calculator E (which applies to disability support pension (people under 21 who are blind). The effect of this amendment is to remove from Module F (remote area allowance) the requirement that a person be "in Australia".
This item repeals point 1067G-C1 - Module C of the Youth Allowance Rate Calculator. The effect of this amendment is to remove from Module C (pharmaceutical allowance) the requirement that a person be "in Australia".
This item repeals and substitutes paragraph 1067G-D1(f) - Module D of the Youth Allowance Rate Calculator. The effect of this amendment is to remove from Module D (rent assistance) the requirement that a person be "in Australia". At the same time, the amendment ensures that the rent, in relation to which rent assistance is paid, is paid on premises "in Australia".
This item repeals point 1067G-K5 - Module K of the Youth Allowance Rate Calculator. The effect of this amendment is to remove from Module K (remote area allowance) the requirement that a person be "in Australia".
This item repeals paragraph 1067L-C1(a) - Module C of the Austudy Payment Rate Calculator. The effect of this amendment is to remove from Module C (pharmaceutical allowance) the requirement that a person be "in Australia".
This item repeals and substitutes paragraph 1067L-F5 - Module F of the Austudy Payment Rate Calculator. The effect of this amendment is to remove from Module F (remote area allowance) the requirement that a person be "in Australia".
This item repeals paragraph 1068-D1(b) - Module D of Benefit Rate Calculator B (which applies to widow allowance, newstart allowance (18 or over ), sickness allowance (18 or over), partner allowance, and mature age allowance under Part 2.12B.
The effect of this amendment is to remove from Module D (pharmaceutical allowance) the requirement that a person be "in Australia".
This item repeals and substitutes paragraph 1068-F1(d) - Module F of Benefit Rate Calculator B (which applies to widow allowance, newstart allowance (18 or over ), sickness allowance (18 or over), partner allowance, and mature age allowance under Part 2.12B.
The effect of this amendment is to remove from Module F (rent assistance) the requirement that a person be "in Australia". At the same time, the amendment ensures that the rent, in relation to which rent assistance is paid, is paid on premises "in Australia".
This item repeals point 1068-J6 - Module J of Benefit Rate Calculator B (which applies to widow allowance, newstart allowance (18 or over ), sickness allowance (18 or over), partner allowance, and mature age allowance under Part 2.12B.
The effect of this amendment is to remove from Module J (remote area allowance) the requirement that a person be "in Australia".
This item amends point 1068A-C1 - Module C of the Parenting Payment Rate Calculator (Single). The effect of this amendment is to remove from Module C (pharmaceutical allowance) the requirement that a person be "in Australia".
This item repeals and substitutes paragraph 1068A-D1(e) - Module D of the Parenting Payment Rate Calculator (Single). The effect of this amendment is to remove from Module D (rent assistance) the requirement that a person be "in Australia". At the same time, the amendment ensures that the rent, in relation to which rent assistance is paid, is paid on premises "in Australia".
This item repeals point 1068A-F3 - Module F of the Parenting Payment Rate Calculator (Single). The effect of this amendment is to remove from Module F (remote area allowance) the requirement that a person be "in Australia".
This item repeals paragraph 1068B-E1(c) - Module E of the Parenting Payment Rate Calculator (Partnered). The effect of this amendment is to remove from Module E (pharmaceutical allowance) the requirement that a person be "in Australia".
This item repeals paragraph 1068B-F1(f) - Module F of the Parenting Payment Rate Calculator (Partnered). The effect of this amendment is to remove from Module F (rent assistance) the requirement that a person be "in Australia". At the same time, the amendment ensures that the rent, in relation to which rent assistance is paid, is paid on premises "in Australia".
The ensuing items revise Part 4.2 - Overseas Portability to introduce the standardised "international portability" provisions.
This item repeals and substitutes a new heading for Division 1 of Part 4.2 "Division 1- Preliminary".
Item 109 repeals existing sections 1211, 1212 and 1213, and substitutes the following sections:
New section 1211 - Social Security (International Agreements) Act overrides Part
This section provides that, if the provisions of the Social Security (International Agreements) Act 1999 apply to a person, then Part 4.2 does not apply.
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- the Social Security (International Agreements) Act 1999 applies to persons from a country with which Australia has a relevant international social security agreement. Part 4.2 does not apply to such persons.
New section 1212 - Meaning of terms used in this Part
This section provides definitions for the purposes of the new provisions.
New section 1212A - Meaning of acute family crisis
This section provides a definition of acute family crisis . This is relevant to the Table in new section 1217 (items 12, 15, 18 and 19).
New section 1212B - Meaning of humanitarian purpose
This section provides a definition of humanitarian purpose. This is relevant to the Table in new section 1217 (items 12, 15 18 and 19).
New section 1212C - Meaning of temporary absence
This section provides a definition of temporary absence . This is relevant throughout the Table in new section 1217 (column 4 refers)
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- for this purpose,
temporary absence
is defined within the terms of subsection 7(3) of the
Social Security Act 1991
, which provides as follows;
- 7.(3)
- In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
- (a)
- the nature of the accommodation used by the person in Australia; and
- (b)
- the nature and extent of the family relationships the person has in Australia; and
- (c)
- the nature and extent of the person's employment, business or financial ties with Australia; and
- (d)
- the nature and extent of the person's assets located in Australia; and
- (e)
- the frequency and duration of the person's travel outside Australia; and
- (f)
- any other matter relevant to determining whether the person intends to remain permanently in Australia.
New section 1212D - Part does not affect need for qualification
This section emphasises, for the avoidance of doubt, that nothing in this Part overrides the qualification provisions.
Item 110 repeals existing sections 1213A, which will become redundant after the amendments.
Item 111 repeals existing sections 1215, 1216, 1216A, 1216B and 1217, and substitutes the following Part and sections:
New Division 2 - Portability of social security benefits
Subdivision A- Basic portability provisions
New section 1213 - Persons to whom Division applies
This section is an application provision which provides that the Division applies to a person who leaves Australia, and was receiving a social security payment before he or she left (or, before leaving, had made a claim for a payment which was subsequently granted).
New section 1214 - Some payments generally portable with no time limit
This section provides for unlimited portability in relation to some payments - as to which see new section 1217 (Column 5 in the Table in that Section).
New section 1215 - Some payments generally portable with time limit
This section provides that a person ceases to have a right to payment after the expiry of that person's portability period - as to which see new section 1217.
New section 1216 - Amounts added to the person's rate
This section provides that the social security "add-ons" - remote area allowance, rent assistance pharmaceutical allowance and (the almost defunct) incentive allowance - are not to be available at the end of the persons portability period, or 26 weeks, whichever is the earlier.
New section 1217 - Meaning of maximum portability period, allowable absence, and portability period
This section sets out the meaning of maximum portability period, allowable absence and portability period for the purposes of ascertaining the portability available to a customer. This is established by reference to Column 5 of the Table contained in that section, having regard to the payment that person is receiving (Column 2), any conditions which apply to the person (Column 3), any conditions relating to the absences which are allowed in relation to both those matters (Column 4).
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- in particular, in relation to severely disabled persons , it should be noted that subsection (5) provides that where the condition of a severely disabled person improves to the extent that the person becomes a disabled person (as to which, refer to items 2 and 3 in the Table), then for the purpose of establishing that person's portability period, the absence is taken to have commenced when the person ceased to be a severely disabled person (This is to protect the person from an otherwise harsh consequence, since in all other circumstances the portability period commences when the person left Australia).
Subdivision B - Exceptions to the Subdivision A rules
New section 1218 - Exception - full-time students outside Australia for purposes of Australian course
This section maintains an existing exception in the Social Security Act 1991 , which allows for the continuation of a person's youth allowance or austudy payment where the person's overseas absence is for the purpose of undertaking studies that form part of the person's studies at an Australian educational institution.
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- subsection (3) maintains the existing rule in relation to full-time students, already in the Social Security Act 1991, that returns to Australia of less than 13 weeks do not affect the continuity of a break for the purposes of the Division.
New section 1218A - Exception - Reserve service
This section maintains an existing exception in the Social Security Act 1991 , which allows for the continuation of a person's parenting payment, youth allowance, austudy payment, newstart allowance, mature age allowance or mature age partner allowance where the person's overseas absence is for the purpose of undertaking Reserve service.
New section 1218B - Exception - waiting period in Australia before parenting payment is portable
This section maintains an existing exception in the Social Security Act 1991 , which prevents portability for a person's parenting payment until, having previously had parenting payment cease because of overseas absence, the person returns to Australia for a continuous period of not less than 26 weeks.
New section 1218C - Extension of person's portability period
This section provides a discretion for the Secretary to extend a person's portability period, where the person finds him or herself in any of the grievous circumstances listed in that section.
This item repeals a redundant heading.
This item repeals sections 1218, 1218A, 1218B, 1218C and 1219. The new provisions described above now overtake these sections.
No portability based on short residence - extension to 2 years
At present, the Social Security Act 1991 provides that, where an Australian resident proceeds overseas and ceases to be a resident, then, when that person returns and commences to receive an age pension, disability support pension or a bereavement allowance, then that person must maintain residence for 12 months before portability becomes available.
This item will extend that requirement, from 12 months to 2 years.
This amendment only applies to new grants of the above payments made on or after 20 September 2000 (- see Item 126 - new item 129 in Schedule 1A).
This amendment removes a trailing "and" from paragraph 1220(1)(e), and is consequential upon the amendment made by item 116.
This item repeals paragraph 1220(1)(g), which contains a redundant reference to "in Australia".
No portability based on short residence - extension to 2 years
This item complements the amendment made by item 114, operating in relation to the external territories.
This amendment removes a trailing "and" from paragraph 1220(2)(e), and is consequential upon the amendment made by item 119.
This item repeals paragraph 1220(2)(g), which contains a redundant reference to "in Australia".
This item repeals subsection 1220(3), which was the Secretary's discretion not to apply the 12 months residence waiting period (see items 114 and 117). This discretion is not appropriate under the standardised portability rules.
Working life residence proportionality to apply after 26 weeks
This item repeals and substitutes sections 1220A and 1220B, as follows:
New Section 1220A - Proportionality - age pension rate
At present, the Act provides for full overseas portability of age pension for up to 12 months after the person leaves Australia. After this time, the age pension continues to be portable, but at a reduced rate proportional to the person's working life residence. (This procedure appears in the Act in the pension portability rate calculator - section 1221).
As part of the standardisation process, new section 1220A will reduce the period of full portability to 26 weeks, after which the proportional working life residence rate will apply.
New Section 1220B - Proportionality - disability support pension rate for a severely disabled person
At present, the Act provides for full overseas portability of disability support pension (severely disabled person) for up to 12 months after the person leaves Australia. After this time, the disability support pension continues to be portable, but at a reduced rate proportional to the person's working life residence. (This procedure appears in the Act in the pension portability rate calculator - section 1221).
As part of the standardisation process, new section 1220B will reduce the period of full portability to 26 weeks, after which the proportional working life residence rate will apply.
This item repeals subsections 1221(1), (2) and (3) and substitutes new subsections 1221(1) and (2), with a new section header as follows:
Section 1221 - Proportionality - wife pension and widow B pension rate for entitled persons
At present, the Act provides for full overseas portability for entitled persons in receipt of wife pension and widow B pension for up to 12 months after the person leaves Australia. After this time, the wife pension or widow B pension continues to be portable, but at a reduced rate proportional to the person's working life residence. (This procedure appears in the Act in the pension portability rate calculator - section 1221).
As part of the standardisation process, new subsections 1221(1) and (2) will reduce the period of full portability to 26 weeks, after which the proportional working life residence rate will apply.
This item inserts a new point 1221-A2 the pension portability rate calculator, to correct an anomaly which in some circumstances could enable a person to receive more overseas than if the person were in Australia.
New point 1221-A2 will limit a person's entitlement in these circumstances to the amount that would apply if the person were still in Australia.
This is a technical amendment consequential upon the amendments made by item 125.
This item repeals redundant items in the pension portability rate calculator - section 1221.
This item inserts savings provisions in Schedule 1A
This item provides that the new portability rules contained in sections 1213A, 1215, 1216, 1220A, 1220B and 1221 do not apply to a person who is overseas at the commencement of the Act, until that person returns to Australia for a continuous period of more than 26 weeks.
This item provides that the amendments made to section1220 relating to " No portability based on short residence - extension to 2 years" (as to which see items 114 to 120 inclusive) only applies to new grants of the above payments made on or after 20 September 2000.
This item "saves" other provisions of the Act, in relation to persons who were absent from Australia on 20 September 2000, until such time as those persons return to Australia.
Part 2 - Pension bonus
As part of the Governments Tax Reform Package, pension rates are to be increased by 4% from 1 July 2000 to compensate for the effects of the GST. The 4% increase in pension rates takes the form of a pension supplement that is added to a persons maximum basic rate of pension. Amendments intended to achieve this objective were undertaken in the A New Tax System (Compensation Measures Legislation Amendment) Act 1999 (the Compensation Act).
Certain technical amendments were not undertaken by the Compensation Act. Those technical amendments are included in Part 2 and Part 3 of this Schedule. In respect of Part 2, those amendments ensure the 4% supplement is included in the calculation of a persons pension bonus.
Paragraph 93H(b) of the Social Security Act 1991 (the Social Security Act) is concerned with the calculation of a persons annual pension rate where the person is permanently blind. The annual pension rate is required for the purposes of working out the amount of a persons pension bonus. Item 101 amends paragraph 93H(b) to ensure that the 4% pension supplement is included as part of the calculation of the amount of pension bonus payable to a person who is permanently blind.
Section 93J of the Social Security Act is concerned with the amount of pension bonus that is payable to a person. One of the factors taken into account in calculating the amount of pension bonus payable to a person is their basic rate of pension at the time it is granted. Where a persons marital status has changed during the periods in which they accrued the bonus, the calculation of the amount of pension bonus payable is based on those proportions of the overall qualifying period that the person was single as well as a member of a couple. For example, a 5 year bonus payable to a single person who had been married for the first 3 years of accruing their bonus would be based on:
- 2/5 of the basic annual pension rate granted (single); and
- 3/5 of an annual notional partnered pension rate.
Subsection 93J(3) is relevant to the calculation of a persons annual notional single pension rate for the purposes of the pension bonus scheme. Subsection 93J(4) is relevant to the calculation of a persons annual notional partnered pension rate for the purposes of the pension bonus scheme. Items 102 and 103 respectively amend subsections 93J(3) and 93J(4) so that the 4% pension supplement is included in the calculation of the annual notional single pension rate and the annual notional partnered pension rate.
Part 3 - Retirement assistance for farmers
As part of the Governments Tax Reform Package, pension rates are to be increased by 4% from 1 July 2000 to compensate for the effects of the GST. The 4% increase in pension rates takes the form of a pension supplement that is added to a persons maximum basic rate of pension. Amendments intended to achieve this objective were undertaken in the A New Tax System (Compensation Measures Legislation Amendment) Act 1999 (the Compensation Act).
Certain technical amendments were not undertaken by the Compensation Act. Those technical amendments are included in Part 2 and Part 3 of this Schedule. In respect of Part 3, the amendments ensure the 4% supplement is included for the purposes of the retirement assistance for farmers scheme.
Paragraph 1185K of the Social Security Act is relevant to the operation of the farmers income test for the purposes of the retirement assistance for farmers scheme (RAFS). One of the qualification criteria for RAFS is satisfaction of the farmers income test. To be able to satisfy that test, a farmers income over the three years preceding the transfer of the farm property must be less than the persons maximum basic entitlement for age pension for the same period. Item 104 amends subsection 1185K(4) to ensure that, when calculating a farmers maximum basic entitlement, the 4% pension supplement is included as part of that calculation.
Part 4 - Claiming unclaimed overseas entitlements
At present, only persons from an a country with which Australia has a social security agreement are required to take reasonable steps to obtain a "comparable foreign payment" from that country.
These amendments, in conjunction with amendments to s66 of the Social Security (Administration) Act 1999 will extend that requirement to persons from all countries, with effect from 20 September 2000.
An amnesty is provided - see Item 133.
This is a consequential amendment that repeals the definition of CFP country that will be redundant after these amendments.
This is a consequential amendment to repeal section 38A (relating to CFP countries ) which will be redundant after these amendments.
This item inserts a new item 132 into Schedule 1A, to give effect to the social security amnesty.
In consideration that some persons may already be receiving a "comparable foreign payment" (ie a pension) which has not been disclosed to the Secretary, a social security amnesty period is established under these provisions (from 20 September 2000 to 19 January 2001) during which a person may disclose the existence of any previously undisclosed "comparable foreign payment" without incurring an overpayment in relation to any period before the disclosure to the Secretary.
Part 5 - Simplifying qualifying residence
This Part contains amendments simplifying the qualifying residence provisions.
This item repeals a redundant definition - exempt resident.
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- Most categories of visa listed under exempt resident (437, 781, 783 & 784) are no longer issued, and the Department of Immigration and Multicultural Affairs advises that none of those granted are still valid.
This item repeals a redundant definition - former exempt resident.
This item makes a technical amendment to correct an incorrect cross-reference.
This item repeals a redundant definition - special purpose visa, and is consequential upon Item 139.
This item repeals a redundant reference - special purpose visa, and is consequential upon Item 139.
This item removes the holder of a special purpose visa from the list of persons contained in the definition of Australian resident.
The Department of Immigration and Multicultural Affairs has advised that the inclusion of special purpose visa holders in the definition is not consistent with the provisions in the Migration Act and Migration Regulations. Under subsection 33(2) of the Migration Act, special purpose visas are temporary visas, taken to have been granted to:
- (a)
- non-citizens who have a prescribed status under migration regulation 2.40; or
- (b)
- non-citizens who the Minister declares in writing to have been granted a special purpose visa under paragraph 33(2)(b) of the Migration Act.
There is a significant difference between special purpose visa holders and the others included in the definition of "Australian resident" in the Social Security Act. Under migration regulation 2.40, special purpose visas allow people to come to Australia for very limited duration and for special purposes. Therefore no one can legitimately remain indefinitely in Australia on his or her special purpose visa.
This item repeals subsection 7(4A), which is redundant.
This section provides that for the purposes of wife pension and carer payment, residence of a claimant in an external Territory is taken not to interrupt the continuity of residence of the claimant in Australia. However, as continuous residence is not a qualification criterion for either of these payments this section is inoperative.
At present the Act refers to certain visa holders by listing in the Act the type of visa held by that person. The Act contains a provision to enable the Minister to make a determination adding further classes of visa to this list. However, this approach has its drawbacks, as it requires the casual reader to consult both the Act and any published determinations, and it requires the legislation to be periodically updated (as listed classes of visa become defunct, etc).
To avoid this, this item will amend subsection 7(6AA) so that in the future the list of visas will be contained solely in a determination made by the Minister.
For the avoidance of doubt, it is intended that the first determination made will include those visas which are presently listed in subsection 7(6AA) (unless they become defunct in the interim). These visas are:
- s7(6AA)
-
- "(a)
- a subclass 820 visa-Extended eligibility (spouse);
- (c)
- a subclass 826 visa-Interdependency,
- (d)
- a subclass 832 visa-Close ties;
- (e)
- a subclass 833 visa-Certain unlawful citizens"
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- similar amendments are made in subsequent items in this Schedule to other provisions in the Act containing "lists" of visas
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- a determination made by the Minister is a disallowable instrument (see item145).
This item repeals subsection 7(6A), which relates to a qualifying residence exemption for special benefit
Subsection 7(6A) gives a qualifying residence exemption for special benefit to a person who is an exempt resident, a former exempt resident or a family member of an exempt resident at the time that person arrived in Australia.
Subsection 7(6A) (and, indeed, the whole concept of an exempt resident) is now redundant. Most categories of visa listed under exempt resident (437, 781, 783 and 784) are no longer issued.
- •
- consequential amendments are also made to the following provisions:
- subsection 7(6C) - Item 143
- section 25A,
- paragraph 729(2)(f)(ii) and Note 2.
- paragraph 739A(6)(a).
In addition consequential amendments are made to remove references to exempt resident from subsection 5BA of the Health Insurance Act 1973, 5BA(4)(iv), 5BA(4)(v) and 5BA(4)(vi) - as to which see Schedule 6 of this Act.
This item repeals subsection 7(6C), and is associated with the amendment made by Item 142.
This amendment is consequential upon the amendment made by Item 142.
This item provides that a determination made by the Minister under paragraph 7(6AA)(f) is a disallowable instrument - as to which see item 141.
This item repeals a redundant definition - inhabitant of Australia in subsection 23(1).
The term is no longer used in the Act.
This item repeals section 25A, and is associated with the amendment made by Item 142.
This item repeals subsection 23(13) that is redundant following the repeal of the term inhabitant of Australia - as to which see item 146.
Section 201AA describes those people who are subject to a newly arrived residents waiting period for carer payment, and those people to whom the waiting period does not apply.
At present there is no provision to allow the Minister to determine the holders of other types of visa as being exempt from the waiting period for carer payment.
This amendment will insert new subsection 201AA(5) to that effect.
Section 315 describes the qualifications for bereavement allowance. Specifically, paragraph (d) contains the various options for meeting the residence requirements for the payment.
The residence requirements for bereavement allowance are different from, and in some ways more stringent than, the comparable provisions for age pension. Subparagraphs (ii) and (iii) provide for five continuous years as an Australian resident immediately before the claim, or 10 continuous years as an Australian resident at any time. The five years option is related to the old sole parent pension and widow B pension provisions but, as those payments are no longer granted, there is no need to keep that link (parenting payment qualification is based on a period of, or periods totalling, 104 weeks).
Since widow B Pension is not granted any longer and sole parent pension was replaced by parenting payment (single) with a 104 week qualifying residence requirement it is logical to align subparagraph 315(1)(d) (ii) with a 104 week period.
This amendment will amend that provision accordingly.
Subparagraph 315(1)(d)(iii) is redundant following the amendment made by item 150, and is therefore repealed.
This item amends section 408BA, which relates to the qualifications for widow allowance.
At present paragraph 408BA(2)(d) contains the various options for meeting the residence requirements for the payment.
One of the criteria (subparagraph 408BA(2)(d) (ii)) for meeting the residence requirements for widow allowance is that the person has, at any time, been an Australian resident for a continuous period of at least 10 years. This is more stringent than the requirement for age pension, as it does not allow for a situation where the person has more than 10 years residence, made up of shorter periods.
This amendment will align the residence qualification in subparagraph 408BA(2)(d) (ii) with those for age pension by providing for qualification after 10 years "qualifying Australian residence".
This item repeals a redundant provision - s.660YCFA(3)
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- This is one of a range of redundant provisions repealed in this Schedule; - mature age allowance (s.660YCFA(3) and s.660YCFB(2)) and partner allowance (s.771HNB(2)).
- •
- These provisions have ceased to be operative since, if the persons covered by those provisions stayed in Australia they would have been granted permanent visa and either (or both) have already served a newly arrived resident's waiting period (s.660YCFA(4)(b) or s.771HNA(4)(b)) or have held a permanent visa last time they left Australia (s.660YCFA(4)(c) or s.771HNA(4)(c)). If those persons left Australia without getting permanent residence, and returned at some future date, then the newly arrived resident's waiting period would apply.
This item repeals a redundant provision - s660YCFB(2) - see item 153.
This item makes a consequential amendment to subsection 660YCFB(3) following the repeal of a redundant provision - see items 153 and 154.
This item will amend paragraph 729(2)(f) to omit references to specific visas. In the future, the list of visas will be contained solely in a determination made by the Minister.
For the avoidance of doubt, it is intended that the first determination made will include those visas that are presently listed in paragraph 729(2)(f) (unless they become defunct in the interim). These visas are:
- paragraph 729(2)(f):
- (iii)
- a subclass 820 visa-Extended eligibility (spouse);
- (iv)
- a subclass 826 visa-Interdependency;
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- this amendment is similar to that made by item 141.
This item repeals the redundant note 2 to subsection 729(2).
This item will amend subsection 739A(1) to omit references to specific visas. In the future, the list of visas will be contained solely in a determination made by the Minister under new paragraph 739(1)(e).
For the avoidance of doubt, it is intended that the first determination made will include those visas that are presently listed in subsection 739A(1) (unless they become defunct in the interim). These visas are:
- subsection 739A(1):
- (c)
- a subclass 820 visa-Extended eligibility (spouse);
- (d)
- a subclass 826 visa-Interdependency;
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- this amendment is similar to that made by item 141.
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- a determination made under this provision is a disallowable instrument - see item 163.
This item will amend subsection 739A(2) to omit references to specific visas. In the future, the list of visas will be contained solely in a determination made by the Minister.
For the avoidance of doubt, it is intended that the first determination made will include those visas that are presently listed in subsection 739A(2) (unless they become defunct in the interim). These visas are:
- subsection 739A(2):
- (c)
- a subclass 820 visa-Extended eligibility (spouse);
- (d)
- a subclass 826 visa-Interdependency;
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- this amendment is similar to that made by item 141.
- •
- a determination made under this provision is a disallowable instrument - see item 163.
This item will amend paragraph 739A(3)(b) to omit references to specific visas. In the future, the list of visas will be contained solely in a determination made by the Minister.
For the avoidance of doubt, it is intended that the first determination made will include those visas that are presently listed in paragraph 739A(3)(b) (unless they become defunct in the interim). These visas are:
- paragraph 739A(3)(b):
- (c)
- a subclass 820 visa-Extended eligibility (spouse);
- (d)
- a subclass 826 visa-Interdependency;
- •
- this amendment is similar to that made by item 141.
- •
- a determination made under this provision is a disallowable instrument - see item 163.
This item will amend paragraph 739A(4)(b) to omit references to specific visas. In the future, the list of visas will be contained solely in a determination made by the Minister.
For the avoidance of doubt, it is intended that the first determination made will include those visas that are presently listed in paragraph 739A(4)(b) (unless they become defunct in the interim). These visas are:
- paragraph 739A(4)(b):
- (c)
- a subclass 820 visa-Extended eligibility (spouse);
- (d)
- a subclass 826 visa-Interdependency;
- •
- this amendment is similar to that made by item 141.
- •
- a determination made under this provision is a disallowable instrument - see item 163.
This item will amend subsection 739A(6) to omit references to specific visas. In the future, the list of visas will be contained solely in a determination made by the Minister.
For the avoidance of doubt, it is intended that the first determination made will include those visas that are presently listed in subsection 739A(6) (unless they become defunct in the interim). These visas are:
- subsection 739A(6):
- (c)
- a subclass 820 visa-Extended eligibility (spouse);
- (d)
- a subclass 826 visa-Interdependency;
- •
- this amendment is similar to that made by item 141.
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- a determination made under this provision is a disallowable instrument - see item 163.
This item amends section 739A to provide that determinations made under paragraph 739A(1)(e), subsection 739A(2), paragraph 739A(3)(b), paragraph 739A(4)(b) or subsection 739A(6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
This item repeals redundant provisions in section 771HNA and 771HNB - see item 153.
This item makes a consequential amendment to subsection 771HNB(3) following the repeal of a redundant provision - see item 153 and 164.