Explanatory Memorandum
(Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston)OUTLINE
The Family Assistance Legislation Amendment (Extend Family Assistance to ABSTUDY Secondary School Boarding Students Aged 16 and over) Bill 2019 (the Bill) implements the 2019-20 Budget measure 'Extending Family Tax Benefit to ABSTUDY recipients aged 16 and over who study away from home'. Upon its commencement, the Bill will extend Family Tax Benefit (FTB) eligibility to the families of ABSTUDY secondary school students who are aged 16 or over, and are required to live away from home to attend school.
Under Family Assistance Legislation families of Indigenous boarding students aged under 16 are generally eligible for both ABSTUDY and FTB. ABSTUDY for these students is paid directly to the school and boarding provider to cover tuition and boarding costs, while FTB is paid to the family to help with the cost of raising children. FTB supports families through assisting with the ongoing costs of their children's daily incidentals while they are away at school, such as clothing, toiletries, medicines and pocket money as well as their essential living costs when they are at home during school holidays. This Bill will ensure that families of ABSTUDY boarding students aged 16 to 19 are eligible for FTB until the student completes year 12.
Schedule 1 - Amendments
Schedule 1 amends the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act) to provide that FTB will continue to be payable to families of ABSTUDY children who live away from home to study once they turn 16.
Financial impact statement
| MEASURE | FINANCIAL IMPACT OVER THE FORWARD ESTIMATES |
| Extending Family Tax Benefit to ABSTUDY recipients aged 16 and over who study away from home | $36.4 million |
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this explanatory memorandum.
Notes on Clauses
Abbreviations and Acronyms used in this explanatory memorandum
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- DSS means the Department of Social Services;
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- Family Assistance Act means the A New Tax System (Family Assistance) Act 1999;
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- Family Assistance Administration Act means the A New Tax System (Family Assistance)(Administration) Act 1999;
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- FTB means Family Tax Benefit.
Clause 1 sets out how the new Act is to be cited - that is, as the Family Assistance Legislation Amendment (Extend Family Assistance to ABSTUDY Secondary School Boarding Students Aged 16 and Over) Act 2019.
Clause 2 provides a table setting out the commencement date of the new Act. If passed, and the Act receives Royal Assent in 2019, then the Act will commence on 1 January 2020. If the Act receives Royal Assent on or after 1 January 2020 then the Act will commence on the first 1 January, 1 April, 1 July or 1 October to occur after the day the Act receives Royal Assent.
Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule to the Bill has effect according to its terms.
Schedule 1 - Amendments
A New Tax System (Family Assistance) Act 1999
Summary
Schedule 1 amends the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act) to provide that FTB will continue to be payable at the same rates to families of ABSTUDY children who live away from home to study once they turn 16.
Explanation of the changes
A New Tax System (Family Assistance) Act 1999
Item 1 inserts "(1)" before the word "Despite" in current section 22A of the Family Assistance Act.
Item 2 includes the text ", unless subsection (2) applies to the individual" at the end of table item 2(c) to section 22A. This provides for new subsection 22A(2) inserted into the Family Assistance Act by item 3, detailed below.
Item 3 inserts new subsection 22A(2) which provides for the interaction of section 22A with ABSTUDY.
Item 4 amends section 35 of the Family Assistance Act, which deals with when an approved care organisation is not eligible for FTB, to include the words ", unless subsection (1A) applies to the individual" to the end of the text at table item 2 of subsection 35(1).
Item 5 inserts a new subsection 35(1A) which provides an exception to the circumstances in which an approved care organisation will not be eligible to receive FTB. New subsection 35(1A) provides that an approved care organisation will be eligible for FTB in respect of an individual, where the individual is aged 16 or more; is receiving ABSTUDY which is being paid on the basis that the individual is undertaking full-time study at a secondary school, and is approved under the ABSTUDY scheme to live away from home and is boarding away from home for the purposes of attending school.
The note to new subsection 35(1A) refers to subsection 3(1) of the Family Assistance Act for the meaning of "undertaking full-time study". Subsection 3(1) provides that "undertaking full-time study" has the same meaning as provided in the Social Security Act 1991, which is provided for in section 541B of that Act.
A New Tax System (Family Assistance) (Administration) Act 1999
Item 6 inserts the text ", unless subsection (1A) applies to the individual" at the end of paragraph 28B(1)(c)(iv).
Item 7 inserts new subsection 28(B)(1A) which is equivalent to new subsection 35(1A) inserted to the Family Assistance Act by item 5, detailed above.
Item 8 provides for the application of the amendments, with the amendments to the Family Assistance Act to apply in relation to working out eligibility for FTB on or after the commencement of the Bill and the amendments to the Family Assistance Administration Act to apply to a claim, referred to in paragraph 28B(1)(c), made on or after the commencement of the Bill.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Family Assistance Legislation Amendment (Extend Family Assistance to ABSTUDY Secondary School Boarding Students Aged 16 and Over) Bill 2019
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
This Bill will extend Family Tax Benefit to the families of ABSTUDY secondary school boarding students aged 16 to 19 years. This measure will retain families of Indigenous boarding students in the Family Tax Benefit system until their child reaches the end of secondary school. This means Indigenous families with children aged 16 years and over who board away from home for school will continue to receive ABSTUDY to cover boarding and school fees and Family Tax Benefit to assist them with the ongoing costs of raising the child (as is already the case for students aged under 16).
This Bill is compatible with human rights. To the extent that a human rights obligation is engaged or limited, the impact is reasonable and proportionate in achieving the objectives of the measure and the welfare payments system more broadly.
Human rights implications
This Bill engages the following human rights:
Right to social security
Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right of everyone to social security.
The right to social security requires that a system be established under domestic law and that public authorities must take responsibility for the effective administration of the system. The social security system must provide a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.
Article 4 of ICESCR provides that countries may limit the rights to social security in a way determined by law only in so far as this may be compatible with the nature of the rights contained within the ICESCR and solely for the purpose of promoting the general welfare in a democratic society. Such a limitation must be proportionate to the objective to be achieved.
This Bill increases access to social security for the families of secondary school boarding students aged 16 to 19 years of age who receive ABSTUDY.
Right to education
Article 13 of the ICESCR recognises the right of everyone to education. It provides that education shall be directed to the full development of the human personality and the sense of its dignity and shall strengthen the respect for human rights and fundamental freedoms, and that higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means.
This Bill supports access to education for the impacted cohorts. It will remove the present anomaly in Family Assistance Legislation that prevents families from continuing to receive Family Tax Benefit once their ABSTUDY boarding student reaches the age of 16 years. The aim of the measure is to help students stay in school by providing ongoing support for their families until the student completes year 12.
This Bill will ensure families of Indigenous boarding students are retained in the Family Tax Benefit system until their child reaches the end of secondary school. Providing Family Tax Benefit to these families will assist them with the ongoing costs of raising the child (as is already the case for students aged under 16). This means families of Indigenous boarding students will be better positioned to support their child's completion of senior secondary school.
Conclusion
The amendments in this Bill are compatible with human rights because they promote access to social security and support the right to education. To the extent a human rights obligation is engaged or limited, the impact is for a legitimate objective and is reasonable, necessary and proportionate as outlined above.
By extending Family Tax Benefit to the families of ABSTUDY secondary school boarding students aged 16 to 19 years of age, more families will be able to access social security to support their children's education.