House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Kevin Andrews MP)

Schedule 3 - Machinery of government changes

Summary

This Schedule will make minor and technical amendments to several Acts in the social services portfolio to reflect changed public service administrative arrangements.

Background

On 18 September 2013, an Administrative Arrangements Order was made to reflect the new Ministry following the 2013 elections. A further Administrative Arrangements Order was made on 12 December 2013 to clarify the division of responsibilities between Ministers and Departments. As a result, some existing references to Ministers, Secretaries and Departments in various Acts in the social services portfolio are no longer accurate.

Notably, the Minister for Social Services now has responsibility for the Social Security Act and the Social Security Administration Act, except to the extent administered by the Minister for Employment and the Attorney-General. The Minister for Employment now has responsibility for the Social Security Act and the Social Security Administration Act insofar as they relate to participation and activity test requirements and compliance obligations for participation payment recipients.

The Attorney-General continues to have responsibility for the Social Security Act and the Social Security Administration Act insofar as they relate to the Australian Government Disaster Recovery Payment and the Australian Victims of Terrorism Overseas Payment. The amendments in this Schedule do not affect the Attorney-General's responsibilities.

The Data-matching Program (Assistance and Tax) Act 1990 is also amended to reflect the new portfolio arrangements.

The amendments in this Schedule commence on the day after Royal Assent.

Explanation of the changes

Amendments to the Data-matching Program (Assistance and Tax) Act 1990

Items 1 to 4 amend the definition of assistance agency in subsection 3(1), so the definition refers to the current titles of the relevant Departments, and by deleting references to the Health Department, which will no longer participate in data-matching under the Act. The agencies that are now participating in data-matching under the Act are:

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the Education Department;

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the Social Services Department;

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the Veterans' Affairs Department; and

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the Human Services Department.

Item 5 inserts a definition of Education Department in subsection 3(1), meaning the Department that has responsibility for administering the payments known as child care benefit and child care rebate. Likewise, item 9 inserts a definition of Social Services Department and item 10 inserts a definition of Veterans' Affairs Department into subsection 3(1).

Each of these departments is defined by reference to an Act of Parliament, or to a policy area, for which each department has responsibility under the Administrative Arrangements Order.

Item 6 updates the name of the Social Services Department in the definition of matching agency in paragraph 3(1)(a). Likewise, items 11, 12 and 17 update the name of the Social Services Department in the heading before section 3A, in paragraph 3A(1)(a) and in subsection 4(1).

Item 7 amends the definition of personal assistance in paragraph 3(1)(b) to remove references to agencies no longer responsible for the relevant types of assistance.

Item 8 repeals paragraphs 3(1)(ca), (da), (db), (dc), (de) and (df) of the definition of personal assistance as those types of assistance are no longer available, and data-matching is no longer conducted in relation to those types of assistance.

Items 13 to 16 make grammatical amendments within subsection 3A(1).

Amendments to the Social Security Act 1991

Item 18 amends the definition of approved program of work for income support payment in subsection 23(1) by replacing the reference to 'Employment Secretary' with 'Secretary'. Similarly, items 24 and 25 amend sections 28 and 28A by replacing references to 'Employment Secretary' with 'Secretary'.

As the approval of programs of work and programs of assistance falls within the responsibilities of both the Employment Department and the Social Services Department, the Secretary for either department may exercise the powers under sections 28 and 28A of the Social Security Act. Either Secretary may make a declaration and sign an instrument under S28 and S28A, but there must be formal administrative agreement between the departments before the declaration is made.

Item 26 is a transitional provision, ensuring that approvals made under old section 28 or 28A continue to have effect following commencement of these amendments as if the approvals were made under new section 28 or 28A.

Item 19 amends the definition of Employment Department. It is intended that, even if the name of the Employment Department is changed in the future, the department being referred is the department that is administered by the Minister administering the Fair Entitlements Guarantee Act 2012 according to the Administrative Arrangements Orders applicable at any given time.

Item 20 makes a grammatical amendment to the definition of Employment Secretary in subsection 23(1).

Items 21 and 22 repeal the definitions of Health Department and Health Secretary. These two definitions are no longer necessary as the Secretary for the Health Department no longer exercises any powers or functions under the Social Security Act.

Item 23 repeals subparagraph 23(1)(b)(ii) of the definition of Secretary. This subparagraph is no longer necessary because the review of decisions under the Student Assistance Act is provided for under Part 9 of the Student Assistance Act itself, rather than under Division 4 of Part 4 of the Social Security Administration Act.

Item 27 repeals subparagraph 94(1)(c)(ii) and substitutes a new subparagraph. New subparagraph 94(1)(c)(ii) provides that one of the qualification criteria for disability support pension is that the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system. This amendment is necessary because the supported wage system is now administered by the Social Services Department, and not the Health Department, as currently reflected in the subparagraph. Accordingly, existing references to the Health Secretary and the Health Department are now deleted.

Items 28 and 29 amend sub-subparagraph 1035(1)(d)(ii)(C) and subparagraph 1046(2B)(b)(iii) (relating to mobility allowance) by replacing the reference to the 'Secretary of the Employment Department' with 'the Secretary'.

Item 30 is a transitional provision, ensuring that nominations of service providers in force under sub-subparagraph 1035(1)(d)(ii)(C) and subparagraph 1046(2B)(b)(iii) continue to have effect after commencement as if the nominations were given under new sub-subparagraph 1035(1)(d)(ii)(C) and subparagraph 1046(2B)(b)(iii).

Items 31 and 32 amend paragraph 1061ZZGE(1)(b) and subsection 1061ZZGH(3) (relating to assurances of support), by referring to the Minister administering the Migration Act 1958.

Item 33 repeals the note after subsection 1228(2) (relating to overpayments), as the reference to the Employment Department is now out of date and the note is unnecessary.

Amendments to the Social Security Administration Act

Item 34 repeals paragraph 129(4)(e) (relating to internal review), as the Health Secretary no longer has any decision-making power under the social security law.

Item 35 amends paragraph 144(e) (relating to review by the Social Security Appeals Tribunal) by replacing the reference to the 'Employment Secretary' with the 'Secretary'. As the matters under paragraph 144(e) are no longer solely the responsibility of the Employment Secretary, it is intended that the Administrative Arrangements Order would aid in the interpretation of who is the relevant Secretary, or who are the relevant Secretaries, who may exercise a power or function in a given situation.

Item 36 also amends paragraph 144(e) by replacing the reference to 'unemployment payment' with 'income support payment', as programs of work are now also relevant to other income support payments.

Item 37 repeals subsection 234(5) (relating to delegation) because the Health Secretary no longer has any powers or functions under the Act. It also repeals subsection 234(6), which refers to the Employment Secretary's powers of delegation under section 28 of the Act. This subsection is unnecessary given subsection 234(1), which refers to the Secretary's powers of delegation more broadly.