Explanatory Memorandum
(Circulated by the authority of the Minister for Families, Community Services and Indigenous Affairs, Minister for Disability Reform, the Hon Jenny Macklin MP)Schedule 6 - Other amendments
Summary
This Schedule makes amendments to the family assistance law and social security law to clarify various provisions. The amendments are mainly of a minor or technical nature.
Background
The amendments in this Schedule do not involve any changes to policy. The following changes are included:
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- correcting a longstanding error in the legislation (since 1 January 2005) in relation to the FTB Part B supplement for an absent overseas FTB child (that is, absent overseas for more than 13 weeks);
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- consequential amendments to the maintenance income ceiling provisions due to the new clean energy supplement from 1 July 2013;
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- amending the clean energy advance top-up provision to allow for a legislative instrument (rather than subsection 108(1) of the Family Assistance Act) to set out the amount of the top-up if a member of a couple separates after being paid clean energy advance for one or more children, and the care of the child(ren) after separation is shared or split with the former partner;
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- correcting two drafting issues in the health check requirement for the FTB Part A supplement; and
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- other minor or technical amendments.
Explanation of the changes
Amendments to the Family Assistance Act
Item 1 repeals and substitutes subsection 21(1A) to clarify the structure and grammar of this provision, which relates to holders of certain temporary visas who satisfy the residence criteria for FTB. The new provision is consistent with the same provision for single income family supplement in new subsection 57G(2) (to commence on 14 May 2012). There is no change to the FTB residence policy in the new provision.
Item 2 inserts a new heading before subsection 21(2).
Items 3 and 12 amend paragraphs 31(3)(a) and 65(2)(a) to reinsert reference to 'studying overseas full-time' in these provisions from 1 January 2012. This reference was inadvertently removed on 1 January 2012 due to changes to the age requirements in these provisions at that time (by items 2 and 4 of Schedule 1 to the Family Assistance and Other Legislation Amendment Act 2011 ). Reinserting reference to 'studying overseas full-time' ensures that the eligibility and amount of FTB for a child who dies and who was studying overseas will be based on the same higher age limit of 21 that applies to a child studying in Australia (rather than the age limit of 20 that applies to non-students).
Items 4 and 13 are the application provisions for items 3 and 12 respectively. The application provisions set out that each of the amendments in items 3 and 12 applies to deaths occurring on or after 1 January 2012.
Item 5 amends paragraph 32(2)(b) to clarify this provision. The period for which an individual is eligible for FTB under subsection 31(2) after a child dies may be less than 14 weeks. For example, a student child would have turned 22, or a non-student child would have turned 21, before the end of the 14-week period (as set out in subsection 31(3)). For this reason, the existing reference to the period of 14 weeks in paragraph 32(2)(b) will be replaced with the correct reference to the period under subsection 31(2).
Item 6 is the application provision for item 5. The application provision sets out that the amendment in item 5 applies to deaths occurring on or after the day this Act receives the Royal Assent.
Item 7 repeals subsections 61A(1) and (2), and substitutes subsections 61A(1), (2) and (2A), so as to correct two unintended outcomes of a technical nature. .
There is no change to the policy for the health check requirement in section 61A.
New subsections 61A(1) and (2A) provide that, if an individual, or the individual's partner, is a parent of an FTB child on the last day of the income year the child turned four, then the FTB Part A supplement must be disregarded for all the days spent receiving income support and being a carer of the FTB child unless one of the exceptions in new subsection 61A(2A) applied within the required timeframe.
New subsections 61A(2) and (2A) provide that, if the individual, and the individual's partner, is a non-parent carer of an FTB child on the last day of the income year the child turned four, and the child was the individual's FTB child for at least 182 days in that income year, then the FTB Part A supplement must be disregarded for all the days spent receiving income support and being a carer of the FTB child unless one of the exceptions in new subsection 61A(2A) applied within the required timeframe.
New subsection 61A(2A) brings together the same exceptions currently set out in paragraphs 61A(1)(c) and (d) and paragraphs 61A(2)(e) and (f).
Item 8 repeals and substitutes the heading before subsection 61A(3).
Item 9 amends subsection 61A(3) to reflect the changes made by item 7 .
Item 10 provides that the amendments made to the health check requirement in section 61A by items 7, 8 and 9 apply in relation to an individual's eligibility for FTB Part A supplement in the 2012-13 income year and later income years.
Item 11 amends table item 2 in subsection 63(4) to include clause 31A of Schedule 1, which provides for the amount of an individual's FTB Part B supplement. This will result in an absent overseas FTB child being disregarded in working out whether an individual's rate of FTB includes the FTB Part B supplement. An FTB child generally becomes an absent overseas FTB child after 13 weeks' absence from Australia. The amendment corrects a longstanding error in the Family Assistance Act.
The amendment will commence retrospectively from 1 January 2005 as this is the day that the FTB Part B supplement commenced under the Family Assistance Act. The correction reflects the current administration of the policy and will therefore not have any actual adverse effect on individuals.
Items 14 and 15 make consequential amendments to subsection 108(1) because of the inclusion of new subsections 108(1A) and (1B) by item 16 .
Item 16 inserts new subsections 108(1A) and (1B) into the Family Assistance Act. New subsection 108(1A) provides that the amount of an individual's top-up payment of clean energy advance will be worked out in accordance with an instrument made under new subsection 108(1B), rather than under subsection 108(1), if: the individual is a member of a couple on the decision day for the original advance; on a later day before 1 July 2013, the individual's circumstances change; and the individual is entitled to a top-up payment in accordance with an instrument made under new subsection 108(1B). New subsection 108(1B) is a legislative instrument-making power that allows the Minister to specify the circumstances in which individuals are entitled to a top-up payment, and a method for working out the amount, for the purposes of new subsection 108(1A).
The intention is for the instrument under new subsection 108(1B) to apply if a member of a couple separates after being paid a clean energy advance for one or more children, and the care of the child(ren) after separation is shared or split with the former partner.
Items 17 and 18 make minor amendments to subsection 108(2).
Item 19 makes a minor amendment to subsection 108(2) to refer to the trigger day, to reflect the reference to trigger day in paragraph 65J(2)(a) of the Family Assistance Administration Act.
Items 20 to 24 make consequential amendments to the provisions for the maintenance income ceiling to reflect the introduction of the clean energy supplement from 1 July 2013 due to changes made by the Clean Energy (Household Assistance Amendments) Act 2011 .
Item 20 inserts a new step 1A into the method statement in clause 24G of Schedule 1.
Item 21 inserts new clause 24HA of Schedule 1 into the Family Assistance Act. This provision is similar to clause 24H with the difference being that the 'above base clean energy supplement amount' would refer to the difference between the clean energy supplement under clause 38AA and the clean energy supplement under clause 38AF. This amount can then be used in the new formula in clause 24L to work out an individual's maintenance income ceiling. Item 22 sets out the revised formula that includes the 'above base clean energy supplement amount for the income'.
Item 23 inserts a new step 4A into the method statement in clause 24N of Schedule 1.
Item 24 inserts new clause 24RA of Schedule 1 into the Family Assistance Act. This provision is similar to clause 24R with the difference being that the 'clean energy supplement amount' refers to the clean energy supplement under clause 38AA.
Item 25 is an application provision for the amendments made by items 20 to 24 and sets out that items 20 to 24 apply in relation to the 2013-14 income year and later income years.
Amendments to the Family Assistance Administration Act
Item 26 inserts new subsection 21(1A) into the Family Assistance Administration Act for consistency between entitlement and non-entitlement determinations for a claim for FTB by instalments. Currently under the family assistance law, if an individual makes a claim for FTB by instalments and it is determined that they are entitled, this can be backdated to the day the claim was made. If it is determined that they are not entitled, this only applies from the day the determination is made. New subsection 21(1A) provides that a determination that an individual is not entitled to FTB by instalments can be backdated to the day of the claim, if applicable.
Item 27 is an application provision for item 26 and sets out that the amendment made by item 26 applies in relation to determinations made on or after the day this Act receives the Royal Assent.
Item 28 makes a minor amendment to paragraph 65J(2)(a) to reflect the change made by item 16 .
Item 29 amends paragraph (a) of the definition of family assistance payment in subsection 93A(6) to clarify that baby bonus is included in the definition.
Items 30, 31 and 32 make technical amendments to subsection 107(3B) and paragraphs 109D(4)(e) and 109E(3)(e) to reflect the changes made by item 7 .
Amendments to the Social Security Act
Item 33 amends paragraph 1061ZK(4)(b) of the Social Security Act to ensure that, if an individual would be entitled to a rate of FTB Part A above nil but for the rate being reduced to nil for the repayment of an FTB advance, they will still qualify for a health care card, provided they meet the other requirements in subsection 1061ZK(4) (that is, that the individual is entitled to FTB by instalments and that the individual's ATI does not exceed the income free area for FTB Part A).