House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Family and Community Services, Senator the Hon Amanda Vanstone)

Outline and financial impact statement

Nominees under the social security and family assistance laws

The amendments relating to nominees forms a part of the measures being undertaken to give effect to the Government's commitment to implement a simpler and more coherent social security system.

Nominees are particularly relevant to youth allowance, age pension and disability support pension recipients who have difficulty managing their own financial affairs.

Currently, the law only provides for a payment nominee and arrangements relating to correspondence are dealt with administratively. Similarly, the current law does not clearly set out the duties and obligations of nominees. With an ageing population the use of nominees is likely to increase so it is considered appropriate to address these issues now.

This Bill repeals the current nominee provisions in the social security law and the family assistance law and inserts new Part 3A in the Social Security (Administration) Act 1999 and new Part 8B in the A New Tax System (Family Assistance) (Administration) Act 1999, which addresses the deficiencies in the current law.

The provisions in the Bill distinguish between a correspondence nominee and a payment nominee and sets out the duties of payment nominees in relation to payments they receive.

The Bill also consolidates within the framework of the social security law a number of administrative practices relating to nominees.

Profoundly disabled child amendments

The amendments relating to profoundly disabled children will streamline the process to allow more people caring for certain terminally ill children to qualify for carer payment. The need for these amendments was identified in the Government's response to the Review of the measure to extend carer payment eligibility to carers of children with a profound disability.

Date of effect:

Sections 1 and 3 commence on Royal Assent.

Schedules 1 and 2 that relate to nominees commence on 1 July 2003.

Schedule 3 that relates to the definition of profoundly disabled child commences on Royal Assent.

Financial Impact:

The total costs of the amendments made by Schedules 1 and 2 of the Bill in 2003-2004 are negligible.

The total costs of the amendments made by Schedule 3 of the Bill to the definition of profoundly disabled child in section 197 of the Social Security Act 1991 in Schedule 2 of the Bill are:

Notes on clauses

Clause 1 - Short Title

This clause specifies that the short title of the Bill, when enacted, will be the Family and Community Services Legislation Amendment (Budget Initiatives and Other Measures) Act 2002 .

Clause 2 - Commencement

This clause specifies that:

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Sections 1 to 3 and anything in the Act not covered by the table commences on the day the Act receives the Royal Assent;

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Schedule 1 commences on 1 July 2003;

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Schedule 2 commences on 1 July 2003; and

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Schedule 3 commences on the day the Act receives the Royal Assent.

Clause 3 - Schedule(s)

This clause gives effect to the Schedules to the Bill.

Schedule 1 - amendments of the social security law relating to nominees

Amendments of the Social Security (Administration) Act 1999

Items 1 and 2 are technical amendments consequential upon the on the changes made in the new Part 3A dealing with nominees.

Item 3 repeals the existing generic payment nominees provisions in subsections 44(3) and (5) and substitutes a new subsection (3) that makes the section relating to payments to a person subject to the new Part 3A that deals with nominees.

The effect of item 4 is to repeal the existing payment nominees provision that relates to youth allowance as a consequence of the insertion of new Part 3A.

Item 5 inserts a new subsection 45(4) that makes section 45 relating to the payment of youth allowance subject to the new Part 3A that deals with nominees.

The amendments made by items 6 to 8 are consequential upon the insertion of Part 3A that deals with nominees.

Item 9 inserts new Part 3A after Part 3.

Part 3A - Nominees

Proposed Division 1 - Preliminary

Proposed section 123A - Definitions

Section 123A introduces and defines five new terms for the purposes of this Part:

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correspondence nominee;

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nominee;

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payment nominee;

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principal; and

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relevant payment.

Proposed Division 2 - Appointment of Nominees

Proposed section 123B - Appointment of payment nominee

Section 123B provides for the Secretary to be able to appoint a person to be the payment nominee of another person for the purposes of the social security law and direct that the whole or part of the payment be paid to the payment nominee.

Proposed section 123C - Appointment of correspondence nominee

Section 123C provides for the Secretary to be able to appoint a person to be the correspondence nominee of another person for the purposes of the social security law.

Proposed section 123D - Provisions relating to appointments

This section deals with the administrative procedures that relate to appointment. Subsection 123D(1) provides that a person may be both the payment nominee and the correspondence nominee of the same person. It is reasonably common for children of an elderly person who can no longer manage their own affairs to manage the financial affairs of their parent and to handle their correspondence relating to their age pension. It is also common for parents of children with a disability to manage the financial affairs of their children and to handle their correspondence relating to disability support pension. The new provision facilitates such arrangements.

Proposed section 123E -Suspension and revocation of nominee appointments

Subsection (1) provides that if a person withdraws their consent to be a nominee under section 123B or 123C, the Secretary must revoke the person's appointment as a nominee as soon as practicable.

Subsection (2) provides that the Secretary may suspend or revoke appointments in if the Secretary gives the nominee a notice under section 123K and the nominee informs the Department of an event or change of circumstances or the likelihood of such an event or change occurring and the event or change is likely affect the ability of the nominee to act as nominee or the ability of the Secretary to give notices or the ability of the nominee to comply.

Subsection (3) provides that the Secretary may suspend or revoke appointments in writing if the Secretary gives the nominee a notice under section 123K or 123L and the nominee does not comply with the notice.

Subsection (4) provides that while the appointment is suspended the appointment has no effect for the purposes of the social security law.

Subsection (5) provides that the Secretary may at any time cancel a suspension of an appointment under subsection (1).

Subsection (6) provides that any suspension or revocation of a nominee appointment must be made by the Secretary in writing.

Subsection (7) provides that the revocation of an appointment has effect on and from the day specified in the revocation.

Subsection (8) provides that subsection (2) does not apply to a person who is a nominee because of paragraph (b) of the definition of payment nominee in section 123A.

Proposed Division 3 - Payments to payment nominee

Proposed section 123F - Payments of instalments etc. to payment nominee

Subsection (1) provides that if a person has a payment nominee an amount payable to the person under the social security law is to be paid to the payment nominee.

Subsection (2) provides that the amount paid to the payment nominee of a person is paid on behalf of the person and is deemed to have been paid to the person when it is paid to the payment nominee.

Subsection (3) provides that an amount that is to be paid to the payment nominee of a person must be paid to the credit of a bank account and maintained by the nominee.

Subsection (4) provides that the Secretary may direct that an amount paid to a payment nominee may be paid to the payment nominee other than to the credit of a bank account maintained by the nominee.

Subsection (5) provides that subsections (3) and (4) do not apply where a person is payment nominee by virtue of paragraph (b) of section 123A.

Proposed Division 4 - Functions and responsibilities of nominees

Proposed section 123G - Interpretation

This section defined the term benefit recipient to mean a person who:

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has claimed or is receiving a social security payment; or

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has claimed or is the holder of a concession card.

Proposed section 123H - Actions of correspondence nominee on behalf of principal

Subsection (1) provides that, subject to subsection (4), any act that may be done by a person may be done by that person's payment nominee for the purposes of the social security law (other than one under Division 2 or 3). This is subject to Division 5.

Subsection (2) provides that an application or claim that may be made under the social security law by a person may be made by the person's payment nominee on behalf of that person.

Subsection (3) provides that the actions of a person's correspondence nominee are those of the person where they are done for the purposes of the social security law.

Subsection (4) deals with the situation where the Secretary gives a notice to benefit recipient because the act to be done under the notice is one that must be done by the benefit recipient, such as attending a medical examination, entering into a Newstart Activity Agreement or the things mentioned in subsection 601(2) of the Social Security Act 1991. The power to give notices to the benefit recipient is preserved by section 123Q. Subsection (4) limits subsection (1) to the extent that an act is required to be done by the benefit recipient.

Proposed section 123I - Giving of notices to correspondence nominee

Subsection (1) provides that any notice given by the Secretary to the benefit recipient under the social security law may be given to that person's correspondence nominee.

Subsection (2) provides that the notice must be in the same form as if it were being given to the benefit recipient and it may be given either personally or sent by post to the correspondence nominee.

Subsections (3) and (4) deal with the giving of notices to both the benefit recipient and the nominee.

Proposed section 123J - Compliance by correspondence nominee

This section details what a correspondence nominee must do to comply with a notice under section 123I and the consequences of the correspondence nominee complying or failing to comply with the notice.

Proposed section 123K - Notification by nominee of matters affecting ability to act as nominee

Subsection (1) provides that the Secretary may give a nominee a notice requiring the nominee to inform the Department of the occurrence of an event or a change in circumstances or if the nominee becomes aware of these as well as if the event or circumstances is likely to affect either the nominee's ability to act as a nominee or the Secretary's ability to give notices to the nominee or the nominee's ability to comply with notices given to the nominee by the Secretary.

Subsection (2) is subject to subsection (3) and deals with the requirements of notices given under subsection (1).

Subsection (3) provides that a notice under subsection (1) is not ineffective because it fails to inform the nominee how to give the required information to the Department.

Subsection (4) provides that a person must be given at least 14 days after either the day on which the event or change of circumstances occurs or the day on which the nominee becomes aware that the event or change of circumstances is likely to occur, to notify the Department. This is subject to subsection (5).

Subsection (5) provides that subsection (4) does not apply if a notice requires the nominee to inform the department of any proposal by the principal to leave Australia.

Subsection (6) provides that the section extends extraterritorially.

Proposed section 123L - Statement by payment nominee regarding disposal of money

Subsection (1) provides that the Secretary may give the payment nominee a notice requiring the nominee to give the Department a written statement about a matter relating to the disposal by the nominee of money paid to the nominee on behalf of the principal under the social security law.

Subsection (2) is subject to subsection (3) and deals with the requirements of notices under subsection (1).

Subsection (3) provides that a notice under subsection (1) is not ineffective because it fails to inform the nominee how to give the required information to the Department.

Subsection (4) provides that a person must be given at least 14 days after either the day on which the event or change of circumstances occurs or the day on which the nominee becomes aware that the event or change of circumstances is likely to occur, to notify the Department.

Subsection (5) provides that the statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.

Subsection (6) creates an offence in relation to the nominee who refuses or fails to comply with a notice under subsection (1). The penalty for a contravention of subsection (6) is 60 penalty units.

Subsections (7) and (8) set out defences for the purposes of subsection (6).

Subsection (9) provides that the offence of refusing or failing to comply with a notice is an offence of strict liability like similar offences in the Social Security (Administration) Act 1999.

Subsection (10) provides that the section extends extraterritorially.

Division 5 - Other matters

Proposed section 123M - Protection of principal against liability for actions of nominee

Subsection (1) provides that the principal is not guilty of an offence under this Division for the acts or omissions of the nominee.

Subsection (2) provides that subsection (1) does not prevent the principal from being guilty of an offence against this Act or another Act

Proposed section 123N - Protection of nominee against criminal liability

Subsection (1) provides that the nominee is not subject to any criminal liability under the social security law for any act or omission of the principal or anything done in good faith by the nominee in his or her capacity as nominee.

Subsection (2) provides that it is subject to section 123L.

Proposed section 123O - Duty of nominee to principal

Section 123O establishes a duty upon the payment or correspondence nominee to act at all times in what he or she believes in good faith to be the best interests of the principal.

Proposed section 123P - Saving of Secretary' powers of revocation of appointments

This section makes it clear that the power of revocation is that contained in subsection 33(3) of the Acts Interpretation Act 1901.

Proposed section 123Q - Saving of Secretary's powers to give notices to principal

This section makes it clear that the nothing in Part 3A is intended to limit the power of the Secretary to give notices to a benefit recipient. There are some things under the social security law that must be done by the benefit recipient, such as attending a medical examination.

Proposed section 123R - Notification of nominee where notice given to principal

This section provides the if the Secretary gives a notice to a benefit recipient and the person has a correspondence nominee then the Secretary may inform the correspondence nominee of the giving of the notice.

Proposed section 123S - Right of nominee to attend with principal

This provision deals with the situation where the Secretary gives a notice to a person who has a correspondence nominee because the Secretary requires the person to do something personally. The correspondence nominee is given the right to attend or accompany the person if the person wishes this to occur.

Item 10 inserts a new subsection 208(3A) to allow the disclosure of information to the nominee.

Item 11 is a transitional provision that provides for the continuation of existing payment directions.

Schedule 2 - amendments of the family assistance law relating to nominees

A New Tax System (Family Assistance) (Administration) Act 1999

Item 1 repeals subsection 23(4) as a consequence of the insertion of new Part 8B dealing with nominees.

Item 2 repeals subsection 23(6) and inserts a new subsection 23(6) that makes the section subject to Part 4, Division 3 of Part 8B and sections 225 and 226.

Item 3 repeals subsection 24(2) as a consequence of the insertion of new Part 8B dealing with nominees.

Item 4 repeals subsection 24(4) and inserts a new subsection 23(6) that makes the section subject to Part 4, Division 3 of Part 8B and sections 225 and 226.

Item 5 repeals section 35 and substitutes a new section 35 that deals with the payment of family tax benefit advance as a consequence of the insertion of new Part 8B dealing with nominees.

Item 6 makes a technical consequential amendment to subsection 47(1).

Item 7 repeals subsections 47(2) and (4) and substitutes a new subsection 47(2) that makes the section subject to Part 4, Division 3 of Part 8B and sections 225 and 226.

Item 8 repeals subsection 56(2) as a consequence of the insertion of Part 8B dealing with nominees.

Item 9 repeals subsection 56(4) and substitutes a new subsection 56(4) that makes the section subject to Part 4 and Division 3 of Part 8B.

Item 10 repeals subsection 56A(2) as a consequence of the insertion of Part 8B dealing with nominees.

Item 11 repeals subsection 56A(4) and substitutes a new subsection 56A(4) that makes the section subject to Part 4 and Division 3 of Part 8B.

Item 12 inserts new Part 8B that deals with nominees after Part 8A.

Part 8B - Nominees

Proposed Division 1 - Preliminary

Proposed section 219TA - Definitions

Section 219TA introduces and defines five new terms for the purposes of this Part:

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correspondence nominee;

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nominee;

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payment nominee;

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principal; and

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relevant benefit.

Division 2 - Appointment of nominees

Proposed section 219TB - Appointment of nominees

Section 219TB provides for the Secretary to be able to appoint a person to be the payment nominee of another person under the family assistance law and direct that the whole or part of the payment be paid to the payment nominee.

Proposed section 219TC - Appointment of correspondence nominee

Section 219TC provides for the Secretary to be able to appoint a person to be the correspondence nominee of another person for the purposes of the family assistance law.

Proposed section 219TD - Provisions relating to appointments

This section deals with the administrative procedures that relate to appointment. Subsection 219TD(1) provides that a person may be both the payment nominee and the correspondence nominee of the same person.

Proposed section 219TE -Suspension and cancellation of nominee appointments

Subsection (1) provides that if a person withdraws their consent to be a nominee under section 219K or 219L, the Secretary must revoke the person's appointment as nominee as soon as practicable.

Subsection (2) provides the Secretary the power to suspend or cancel an appointment where the nominee notifies an event or a change of circumstances under paragraph 123K(1)(b).

Subsection (3) provides that the Secretary may suspend or cancel appointments in writing if the Secretary gives the nominee a notice under section 219TJ or 219TK and the nominee does not comply with the notice.

Subsection (4) provides that while an appointment is suspended the appointment has no effect for the purposes of the family assistance law.

Subsection (5) provides that the Secretary may at any time cancel a suspension of an appointment under subsection (2) or (3).

Subsection (6) provides that any suspensions or cancellations of nominee appointments must be made by the Secretary in writing.

Subsection (7) provides that the cancellation of an appointment has effect on and from the day specified in the cancellation.

Proposed Division 3 - Payments to payment nominee

Proposed section 219TF - Payments of amounts to payment nominee

Subsection (1) provides that if a person has a payment nominee an amount payable to the person under the family assistance law is to be paid to the payment nominee.

Subsection (2) provides that the amount paid to the payment nominee of a person is paid on behalf of the person and is deemed to have been paid to the person when it is paid to the payment nominee.

Subsection (3) provides that an amount that is to be paid to the payment nominee of a person must be paid to the credit of a bank account nominated and maintained by the nominee.

Subsection (4) provides that the Secretary may direct that an amount paid to a payment nominee may be paid to the payment nominee other than to the credit of a bank account maintained by the nominee.

Proposed Division 4 - Function and responsibilities of nominees

Proposed section 219TG - Actions of correspondence nominee on behalf of principal

Subsection (1) provides that any act (other than one under Division 2 or 3) that may be done by a person may be done by that person's correspondence nominee for the purposes of the family assistance law. Subsection (1) is subject to subsection (4) and section 219TR.

Subsection (2) provides that an application or claim that may be made under the family assistance law by a person may be made by the person's payment nominee on behalf of that person.

Subsection (3) provides that the actions of a person's correspondence nominee under the section are those of the person for the purposes of the family assistance law.

Subsection (4) provides that subsection (1) does not extend to an act where the Secretary gives a notice to a person who has a correspondence nominee requiring the person to do the act.

Proposed section 219TH - Giving of notices to correspondence nominee

Subsection (1) provides that any notice given by the Secretary to a person under the family assistance law may be given to that person's correspondence nominee.

Subsection (2) provides that the notice must be in the same form as if it were being given to the person and it may be given either personally, sent by post to the correspondence nominee.

Subsections (3) and (4) deal with the giving of notices to both the assistance recipient and the correspondence nominee.

Proposed section 219TI - Compliance by correspondence nominee

This section details what a correspondence nominee must do to comply with a notice that has been given to them under section 219TI and the consequences of the correspondence nominee complying or failing to comply with the notice.

Proposed section 219TJ - Notification by nominee of matters affecting ability to act as nominee

Subsection (1) provides that the Secretary may give a nominee of a person, a notice requiring the nominee to inform the Department of the occurrence of an event or a change in circumstances or if the nominee becomes aware of these as well as if the event or circumstances is likely to affect either the nominee's ability to act as a nominee or the Secretary's ability to give notices to the nominee or the nominee's ability to comply with notices given to the nominee by the Secretary.

Subsection (2) is subject to subsection (3) and deals with what form a notice under subsection (1) should take. It must be in writing and be given personally or by post or such other means determined by the Secretary and specify how the nominee is to give information to the department and the period within which to do so.

Subsection (3) provides that a notice under subsection (1) is not ineffective because it fails to comply with paragraph (2)(c).

Subsection (4) is subject to subsections (5) and provides that the period under paragraph (2)(d) must not end earlier than 14 days after either the day on which the event or change of circumstances occurs or the day on which the nominee becomes aware that the event or change of circumstances is likely to occur.

Subsection (5) provides that subsection (4) does not apply if a notice requires the nominee to inform the Department of any proposal by the principal to leave Australia.

Subsection (6) provides that the section extends extraterritorially.

Proposed section 219TK - Statement by payment nominee regarding disposal of money

Subsection (1) provides that the Secretary may give the payment nominee a notice requiring the nominee to give the Department a written statement about a matter relating to the disposal by the nominee of money paid to the nominee on behalf of the principal under the family assistance law.

Subsection (2) is subject to subsection (3) and deals with the requirements of notices given under subsection (1).

Subsection (3) provides that a notice under subsection (1) is not ineffective because it fails to inform the nominee how to give the required information to the Department.

Subsection (4) provides that a person must be given at least 14 days after either the day on which the event or change of circumstances occurs or the day on which the nominee becomes aware that the event or change of circumstances is likely to occur, to notify the Department.

Subsection (5) provides that the statement given in response to the notice must be in writing and in accordance with a form approved by the Secretary.

Subsection (6) creates an offence in relation to the nominee who refuses or fails to comply with a notice under subsection (1). The penalty for a contravention of subsection (6) is 60 penalty units.

Subsections (7) and (8) set out defences for the purposes of subsection (6).

Subsection (9) provides that the offence of refusing or failing to comply with a notice is an offence of strict liability like similar offences in the A New Tax System (Family Assistance) (Administration) Act 1999.

Subsection (10) provides that the section extends extraterritorially.

Division 5 - Other matters

Proposed section 219TL - Protection of person against liability for actions of nominee

Section 219TL provides that a person is not guilty of an offence under this Division for the acts or omissions of the person's correspondence nominee.

Proposed section 219TM - Protection of nominee against criminal liability

Subsection (1) provides that the nominee is not subject to any criminal liability under the family assistance law for any act or omission of the person or anything done in good faith by the nominee in his or her capacity as nominee.

Subsection (2) provides that it is subject to section 219TK.

Proposed section 219TN - Duty of nominee to principal

Section 219TN establishes a duty upon the payment or correspondence nominee to act at all times in what he or she believes in good faith to be the best interests of the principal.

Proposed section 219TO - Saving of Secretary' powers of revocation of appointments

This section makes it clear that the power of revocation is that contained in subsection 33(3) of the Acts Interpretation Act 1901.

Proposed section 219TP - Saving of Secretary's powers to give notices to principal

This section makes it clear that the nothing in Part 8B is intended to limit the power of the Secretary to give notices to a person who has a nominee. There are some things under the social security law that must be done by the benefit recipient, such as attending a medical examination.

Proposed section 219TQ - Notification of nominee where notice given to principal

This section provides the if the Secretary gives a notice to a person who has a correspondence nominee then the Secretary may inform the correspondence nominee of the giving of the notice.

Proposed section 219TR - Right of nominee to attend with principal

This provision deals with the situation where the Secretary gives a notice to a person who has a correspondence nominee because the Secretary requires the person to do something personally. The correspondence nominee is given the right to attend or accompany the person if the person wishes this to occur.

Item 13 inserts a new subsection 168(4) to allow the disclosure of information to a correspondence nominee.

Item 14 is a transitional provision that provides for the continuation of existing payment directions.

Schedule 3 - further amendment of the social security law

Social Security Act 1991

Item 1 inserts a reference to the new subsection 197(2A) into the definition of profoundly disabled child in subsection 197(1). As a result, if a child satisfies the new subsection 197(2A), the definition of profoundly disabled child will be met, and the existing criteria in subsection 197(2) will not need to be considered in that case.

Item 2 inserts a condition into subparagraph 197(2)(c)(vi) which requires a medical practitioner to certify in writing that a child has a terminal condition for which palliative care has replaced active treatment. This will give effect to current practice and is consistent with the new subsection 197(2A) (see item 10).

Item 3 inserts a new subsection 197(2A) into the definition of profoundly disabled child in subsection 197(2).

Where a carer claims carer payment in respect of a disabled child (or children) for whom they provide care, the child must satisfy the definition of profoundly disabled child in subsection 197(2) of the Social Security Act. Currently, the definition of profoundly disabled child in subsection 197(2) requires that the child must satisfy the criteria in each of paragraphs 197(2)(a), 197(2)(b) and 197(2)(c), including meeting at least three of the seven criteria in paragraph 197(2)(c). One of these criteria, in subparagraph 197(2)(c)(vi) provides that in the case of a child with a terminal condition, a medical practitioner must have certified that palliative care has replaced active treatment for that child. Concerns have been raised that this requirement may unfairly exclude terminally ill children who continue to receive active treatment until their death. The process of establishing an additional two criteria under paragraph 197(2)(c), after establishing that the terminally ill child has satisfied subparagraph 197(2)(c)(vi), may also be considered unduly intrusive and traumatic for the child and their family.

New subsection 197(2A) is intended to address these concerns. New subsection 197(2A) introduces a separate requirement with the effect that a child will be a profoundly disabled child if a medical practitioner has certified, in writing, that the child is in the advanced phase of a terminal condition and has a life expectancy of weeks or months, or is unlikely to live for a period substantially greater than 12 months. The child must also require continuous personal care for the remainder of their life because of their terminal condition.