Social Security and Other Legislation Amendment Act 2011
No. 145, 2011
An Act to amend the law relating to social security, veterans’ entitlements and disability services, and for related purposes
Contents
1............ Short title............................................................................................. 1
2............ Commencement................................................................................... 2
3............ Schedule(s)......................................................................................... 2
Schedule 1—Bereavement allowance 3
Social Security Act 1991 3
Schedule 2—Special benefit 4
Social Security Act 1991 4
Schedule 3—Impairment Tables for disability support pension 5
Social Security Act 1991 5
Schedule 4—Disability advocacy services 9
Disability Services Act 1986 9
Schedule 5—Asset‑test exempt income streams 18
Part 1—Amendments 18
Social Security Act 1991 18
Veterans’ Entitlements Act 1986 20
Part 2—Application and transitional provisions 23
Schedule 6—Termination payments 24
Social Security Act 1991 24
Social Security and Other Legislation Amendment Act 2011
No. 145, 2011
An Act to amend the law relating to social security, veterans’ entitlements and disability services, and for related purposes
[Assented to 29 November 2011]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Social Security and Other Legislation Amendment Act 2011.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table
The day this Act receives the Royal Assent.
29 November 2011
2. Schedules 1, 2 and 3
1 January 2012.
1 January 2012
3. Schedules 4, 5 and 6
The day after this Act receives the Royal Assent.
30 November 2011
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Bereavement allowance
Social Security Act 1991
1 Paragraph 315(1)(c)
Repeal the paragraph.
2 Application
The amendment made by this Schedule applies in relation to deaths occurring on or after the commencement of this Schedule.
Schedule 2—Special benefit
Social Security Act 1991
1 At the end of section 739A
Add:
(8) Paragraphs 3(1)(e) and (g) of the Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997, so far as they relate to this section, do not apply to a person if:
(a) on or after 1 January 2012, the person makes a claim for special benefit; and
(b) subparagraph 729(2)(f)(v) of this Act applies in relation to the person; and
(c) the visa the person holds is in a class of visas determined by the Minister, by legislative instrument, for the purposes of this paragraph.
Schedule 3—Impairment Tables for disability support pension
Social Security Act 1991
1 Subsection 23(1) (definition of Impairment Tables)
Repeal the definition, substitute:
Impairment Tables means the tables determined by an instrument under subsection 26(1).
2 After section 25
Insert:
26 Impairment Tables and rules for applying them
Impairment Tables
(1) The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3) The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
27 Application of Impairment Tables
Claims for disability support pension
(1) If a person makes a claim, or is taken to have made a claim, for disability support pension, the Secretary, in determining the claim, must apply the instrument in force under section 26 on the day the claim was made or taken to have been made.
Note: Sections 12, 13 and 15 of the Administration Act and clause 4 of Schedule 2 to that Act deal with claims for disability support pension that are taken to have been made.
(2) If:
(a) the Secretary makes a decision (the original decision) relating to a claim referred to in subsection (1); and
(b) the Secretary, the SSAT or the AAT is reviewing the original decision or a later decision arising out of the original decision;
the Secretary, the SSAT or the AAT, in making a decision on the review, must apply the instrument in force under section 26 on the day the claim was made or taken to have been made.
Note: The effect of this subsection is that any change to the instrument under section 26 from the making of the claim to the making of a decision on the review must be disregarded.
Review of qualification for disability support pension
(3) If:
(a) a person is receiving disability support pension; and
(b) the Secretary gives the person a notice (the assessment notice) under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;
the Secretary, in assessing the person’s qualification for that pension, must apply the instrument in force under section 26 of this Act on the day the assessment notice was given.
(4) If:
(a) after assessing the person’s qualification for that pension, the Secretary makes a determination under section 80 of the Administration Act in relation to that pension; and
(b) the Secretary, the SSAT or the AAT is reviewing that determination or a later decision arising out of that determination;
the Secretary, the SSAT or the AAT, in making a decision on the review, must apply the instrument in force under section 26 of this Act on the day the assessment notice was given.
Note: The effect of this subsection is that any change to the instrument under section 26 from the giving of the assessment notice to the making of a decision on the review must be disregarded.
3 Subsection 94(1) (note 2)
Repeal the note, substitute:
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
4 Schedule 1B
Repeal the Schedule.
5 Application
(1) The amendments made by items 1, 2 (so far as it inserts section 26 of the Social Security Act 1991) and 4 apply for the purposes of working out a person’s qualification for disability support pension in respect of days occurring on or after 1 January 2012.
(2) However, if:
(a) a claim for disability support pension is made, or is taken to have been made, by a person before 1 January 2012; and
(b) the Secretary has not determined the claim before 1 January 2012;
those amendments do not apply in relation to working out the person’s qualification for disability support pension in respect of days occurring on or before the day on which the Secretary determines the claim.
(3) Subsections 27(1) and (2) of the Social Security Act 1991, as inserted by this Schedule, apply in relation to claims for disability support pension made, or taken to have been made, on or after the commencement of this item.
(4) Subsections 27(3) and (4) of the Social Security Act 1991, as inserted by this Schedule, apply in relation to a person receiving disability support pension on or after the commencement of this item (whether the person started to receive that pension before, on or after that commencement).
Note: Sections 12, 13 and 15 of the Administration Act and clause 4 of Schedule 2 to that Act deal with claims for disability support pension that are taken to have been made.
Schedule 4—Disability advocacy services
Disability Services Act 1986
1 After paragraph 5A(1)(b)
Insert:
(ba) disability advocacy standards to be observed in the provision of an advocacy service referred to in that Part; and
2 Subsection 5A(2)
After “paragraph (1)(b)”, insert “, disability advocacy standards under paragraph (1)(ba)”.
3 Section 6A (definition of certificate of compliance)
After “section 6D”, insert “, 6DA”.
4 Section 6A (after subparagraph (a)(i) of the definition of certifying functions)
Insert:
(ia) whether an advocacy service meets the disability advocacy standards; and
5 Section 6A (paragraph (b) of the definition of certifying functions)
After “employment services”, insert “or advocacy services”.
Note: The heading to section 6D is altered by omitting “States or eligible organisations” and substituting “providers of employment services”.
6 After section 6D
Insert:
6DA Accredited certification body may give certificates of compliance to providers of advocacy services
(1) If:
(a) an accredited certification body is requested by a State or eligible organisation to give the State or organisation a certificate under this section in respect of an advocacy service provided by the State or organisation; and
(b) the accredited certification body is satisfied that the service meets the disability advocacy standards;
the accredited certification body must give to the State or organisation a certificate (a certificate of compliance) stating that the service meets those standards.
Revocation of certificate
(2) If:
(a) an accredited certification body has given a certificate of compliance to a State or eligible organisation in respect of an advocacy service; and
(b) the accredited certification body ceases to be satisfied that the service meets the disability advocacy standards;
the accredited certification body must, by written notice given to the State or organisation, revoke the certificate.
Notification to Secretary
(3) If:
(a) an accredited certification body gives a certificate of compliance to a State or eligible organisation; or
(b) an accredited certification body revokes a certificate of compliance;
the accredited certification body must, as soon as practicable, notify the Secretary in writing of the giving or revocation of the certificate and of its reasons for giving or revoking the certificate.
Period certificate of compliance is in force
(4) A certificate of compliance continues in force until:
(a) it is revoked; or
(b) if the accredited certification body that gave the certificate ceases to be accredited—the end of the period of 3 months after the cessation;
whichever occurs first.
Certificates are not legislative instruments
(5) A certificate under subsection (1) is not a legislative instrument.
7 Section 7
Insert:
advocacy service means:
(a) a service that seeks to support persons with disabilities to exercise their rights and freedoms, being rights and freedoms recognised or declared by the Disabilities Convention, through:
(i) one‑to‑one support; or
(ii) supporting them to advocate for themselves, whether individually, through a third party or on a group basis; or
(b) a service that seeks to introduce and influence long‑term changes to ensure that the rights and freedoms of persons with disabilities, being rights and freedoms recognised or declared by the Disabilities Convention, are attained and upheld so as to positively affect the quality of their lives; or
(c) a service included in a class of services approved by the Minister under section 9B.
8 Section 7 (definition of advocacy services)
Repeal the definition.
9 Section 7
Insert:
Disabilities Convention means the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006.
Note: The text of the Convention is set out in Australian Treaty Series 2008 No. 12 ([2008] ATS 12). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
10 Section 7
Insert:
disability advocacy standards means the standards determined by the Minister under paragraph 5A(1)(ba) in relation to the provision of an advocacy service.
11 Section 7 (paragraph (b) of the definition of eligible service)
Repeal the paragraph.
12 At the end of Division 1 of Part II
Add:
9B Approval of additional advocacy services
The Minister may, by legislative instrument, approve a class of services for the purposes of paragraph (c) of the definition of advocacy service in section 7 if the Minister is satisfied that the provision of a service included in that class of services would:
(a) further the objects of this Act set out in section 3 and the principles and objectives formulated under section 5; and
(b) further the implementation of the Disabilities Convention.
13 Subsection 12AE(4)
Omit “Part”, substitute “Division”.
14 After Division 2A of Part II
Insert:
Division 3—Grants for advocacy services
13 Financial assistance for advocacy services
(1) The Minister may approve:
(a) the making of a grant of financial assistance to a State in relation to the provision by the State of an advocacy service for persons included in the target group; or
(b) the making of a grant of financial assistance to an eligible organisation in relation to the provision by the organisation of an advocacy service for persons included in the target group.
(2) However, the Minister must not approve the making of a grant under subsection (1) unless:
(a) the Minister is satisfied that the making of the grant would:
(i) further the objects of this Act set out in section 3 and the principles and objectives formulated under section 5; and
(ii) comply with the guidelines formulated under section 5 that are applicable to the making of grants under subsection (1); and
(b) either of the following applies:
(i) the State or organisation holds a current certificate of compliance in respect of the advocacy service;
(ii) the Minister has, under this section, specified a day by which the State or organisation must obtain a certificate of compliance in respect of the advocacy service and the State or organisation has given a written notice to the Minister stating its intention to seek to obtain such a certificate on or before that day.
Ministerial determinations
(3) The Minister may make a determination specifying a day for the purposes of subparagraph (2)(b)(ii). The day cannot be later than 18 months after the day on which the determination is made.
(4) If subparagraph (2)(b)(ii) applies in respect of a grant, the Minister may vary the determination under subsection (3) to specify a later day. The later day cannot be later than 18 months after the day on which the grant is approved.
Statutory conditions
(5) A grant of financial assistance under this section to a State or eligible organisation in relation to the provision of an advocacy service is subject to the condition that the State or organisation holds a current certificate of compliance in respect of the service:
(a) if subparagraph (2)(b)(i) applies in respect of the grant—at all times during the period to which the grant relates; or
(b) if subparagraph (2)(b)(ii) applies in respect of the grant—at all times on and after:
(i) the day specified in relation to the service under whichever of subsections (3) and (4) applies; or
(ii) the day on which the State or organisation receives a certificate of compliance in respect of the service;
whichever is the earlier, and before the end of the period to which the grant relates.
Note: See section 14 for other conditions.
Approvals and determinations are not legislative instruments
(6) The following are not legislative instruments:
(a) an approval under subsection (1);
(b) a determination under subsection (3).
14 Ancillary provisions relating to grants in respect of advocacy services
(1) Without limiting subsection 13(1), the Minister may, under that subsection, approve the making of a grant of financial assistance, in relation to the provision of an advocacy service, about any of the following:
(a) recurrent expenditure incurred or to be incurred;
(b) the cost of acquiring land (with or without buildings);
(c) the cost of acquiring, erecting, altering or extending buildings;
(d) the cost of acquiring, altering or installing equipment.
(2) If the Minister approves the making of a grant of financial assistance under subsection 13(1), the Minister must, subject to subsection (4) of this section and to the regulations:
(a) determine the amount of the financial assistance or the manner in which the amount of the financial assistance is to be worked out; and
(b) determine the time or times at which, and the instalments (if any) in which, the financial assistance is to be paid; and
(c) determine any other terms and conditions on which the financial assistance is granted.
Examples of conditions
(3) Without limiting paragraph (2)(c), the terms and conditions that may be determined include terms and conditions about any of the following:
(a) the purposes for which the financial assistance may be applied;
(b) the amounts to be applied by the State or organisation for those purposes or any other purpose, and the source of amounts to be so applied;
(c) the outcomes to be achieved by persons included in the target group by the provision of the advocacy service, and the rights of those persons in relation to the provision of the advocacy service or otherwise;
(d) the provision of information;
(e) the provision of certificates with respect to the fulfilment of terms and conditions;
(f) the repayment of financial assistance;
(g) the giving of security for the fulfilment of terms and conditions;
(h) the use and disposal of, and the recovery of amounts that under the terms and conditions are to be taken as representing the Commonwealth’s interest in:
(i) land acquired (with or without buildings); and
(ii) buildings acquired, erected, altered or extended; and
(iii) equipment acquired, altered or installed;
as a result of the application of the financial assistance or of the financial assistance and other money.
Instalment payments
(4) If a grant of financial assistance under this Division is to be paid in instalments, the instalments must be paid within 5 years after the approval of the making of the grant.
Determinations are not legislative instruments
(5) A determination under subsection (2) is not a legislative instrument.
15 Subsections 14GA(1) and (2)
Repeal the subsections, substitute:
(1) This section applies if:
(a) an eligible organisation is receiving a grant of financial assistance in relation to the provision of an employment service or an advocacy service; and
(b) the organisation is in breach of the condition of the grant referred to in subsection 12AD(5) or 13(5), as the case requires.
(2) The Minister may make a declaration:
(a) stating that the organisation is in breach of that condition of the grant; and
(b) specifying the actions that will be taken as a result of that breach.
Note: The heading to section 14GA is altered by omitting “Declaration” and substituting “Consequences”.
16 Paragraph 14GA(3)(a)
Omit “the failure to comply with the condition specified under paragraph (2)(a)”, substitute “a breach of the condition referred to in subsection 12AD(5) or 13(5), as the case requires”.
17 At the end of section 14GA
Add:
(6) A declaration made under subsection (2) is not a legislative instrument.
18 Paragraph 14J(1)(a)
Omit “or an employment service”, substitute “, an employment service or an advocacy service”.
19 Subsection 14K(1)
Omit “(1)”.
Note: The heading to section 14K is altered by omitting “Division 2, or Subdivision A of Division 2A, of”.
20 Subsection 14K(1)
Omit “or an employment service”, substitute “, an employment service or an advocacy service”.
21 Subsection 14K(2)
Repeal the subsection.
22 Paragraph 15(4)(a)
Omit “or an employment service”, substitute “, an employment service or an advocacy service”.
23 After paragraph 33(1)(ca)
Insert:
(caa) the power to give approvals under section 9B; and
24 Saving—accreditations
The amendments made by items 4 and 5 do not affect the validity of an approval in force under section 6B, or an accreditation in force under section 6C, of the Disability Services Act 1986 immediately before the commencement of those items.
25 Saving—existing grants in respect of advocacy services
Despite the amendments and repeals made by this Schedule, the Disability Services Act 1986, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to grants of financial assistance approved before that commencement in respect of advocacy services.
26 Saving—existing declarations of failure to hold certificate
A declaration made under subsection 14GA(2) of the Disability Services Act 1986 before the commencement of this item has effect, on and after that commencement, as if it had been made under subsection 14GA(2) of that Act as amended by this Act.
Schedule 5—Asset‑test exempt income streams
Part 1—Amendments
Social Security Act 1991
1 Paragraph 9A(1)(b)
Omit “and (1C)”, substitute “, (1C) and (1D)”.
2 Paragraph 9A(1)(b)
Omit “in the actuary’s opinion”, substitute “the actuary is of the opinion that, for the financial year in which the certificate is given,”.
3 At the end of subsection 9A(1)
Add:
Note: For paragraph (b), financial year means a period of 12 months commencing on 1 July: see the Acts Interpretation Act 1901.
4 Subsection 9A(1C)
Repeal the subsection, substitute:
Exception to paragraph (1)(b)
(1C) If, on 30 June in a financial year, an actuarial certificate referred to in paragraph (1)(b) is in force in relation to an income stream, then paragraph (1)(b) does not apply in relation to the next financial year (the later year) for the period:
(a) beginning on 1 July of the later year; and
(b) ending at the earlier of the following:
(i) the start of the first day in the later year on which any actuarial certificate is given to the Secretary in relation to that income stream;
(ii) the end of the period of 26 weeks beginning on 1 July of the later year.
5 After subsection 9A(1C)
Insert:
One certificate a financial year
(1D) For the purposes of paragraph (1)(b), if an actuarial certificate is given to the Secretary in a financial year in relation to an income stream, then any actuarial certificate given to the Secretary later in that financial year in relation to that income stream has no effect.
6 Paragraph 9B(1A)(b)
Omit “subsection (1C)”, substitute “subsections (1C), (1D) and (1E)”.
7 Paragraph 9B(1A)(b)
Omit “in the actuary’s opinion”, substitute “the actuary is of the opinion that, for the financial year in which the certificate is given,”.
8 At the end of subsection 9B(1A)
Add:
Note: For paragraph (b), financial year means a period of 12 months commencing on 1 July: see the Acts Interpretation Act 1901.
9 Subsection 9B(1C)
Repeal the subsection, substitute:
Exception to paragraph (1A)(b)
(1C) If, on 30 June in a financial year, an actuarial certificate referred to in paragraph (1A)(b) is in force in relation to an income stream, then paragraph (1A)(b) does not apply in relation to the next financial year (the later year) for the period:
(a) beginning on 1 July of the later year; and
(b) ending at the earlier of the following:
(i) the start of the first day in the later year on which any actuarial certificate is given to the Secretary in relation to that income stream;
(ii) the end of the period of 26 weeks beginning on 1 July of the later year.
Note: The following heading to subsection 9B(1D) is inserted “Guidelines relating to actuarial certificates”.
10 After subsection 9B(1D)
Insert:
One certificate a financial year
(1E) For the purposes of paragraph (1A)(b), if an actuarial certificate is given to the Secretary in a financial year in relation to an income stream, then any actuarial certificate given to the Secretary later in that financial year in relation to that income stream has no effect.
Veterans’ Entitlements Act 1986
11 Paragraph 5JA(1)(b)
Omit “and (1C)”, substitute “, (1C) and (1D)”.
12 Paragraph 5JA(1)(b)
Omit “in the actuary’s opinion”, substitute “the actuary is of the opinion that, for the financial year in which the certificate is given,”.
13 At the end of subsection 5JA(1)
Add:
Note: For paragraph (b), financial year means a period of 12 months commencing on 1 July: see the Acts Interpretation Act 1901.
14 Subsection 5JA(1C)
Repeal the subsection, substitute:
Exception to paragraph (1)(b)
(1C) If, on 30 June in a financial year, an actuarial certificate referred to in paragraph (1)(b) is in force in relation to an income stream, then paragraph (1)(b) does not apply in relation to the next financial year (the later year) for the period:
(a) beginning on 1 July of the later year; and
(b) ending at the earlier of the following:
(i) the start of the first day in the later year on which any actuarial certificate is given to the Commission in relation to that income stream;
(ii) the end of the period of 26 weeks beginning on 1 July of the later year.
15 After subsection 5JA(1C)
Insert:
One certificate a financial year
(1D) For the purposes of paragraph (1)(b), if an actuarial certificate is given to the Commission in a financial year in relation to an income stream, then any actuarial certificate given to the Commission later in that financial year in relation to that income stream has no effect.
16 Paragraph 5JB(1A)(b)
Omit “and (1D)”, substitute “, (1D) and (1E)”.
17 Paragraph 5JB(1A)(b)
Omit “in the actuary’s opinion”, substitute “the actuary is of the opinion that, for the financial year in which the certificate is given,”.
18 At the end of subsection 5JB(1A)
Add:
Note: For paragraph (b), financial year means a period of 12 months commencing on 1 July: see the Acts Interpretation Act 1901.
19 Subsection 5JB(1D)
Repeal the subsection, substitute:
Exception to paragraph (1A)(b)
(1D) If, on 30 June in a financial year, an actuarial certificate referred to in paragraph (1A)(b) is in force in relation to an income stream, then paragraph (1A)(b) does not apply in relation to the next financial year (the later year) for the period:
(a) beginning on 1 July of the later year; and
(b) ending at the earlier of the following:
(i) the start of the first day in the later year on which any actuarial certificate is given to the Commission in relation to that income stream;
(ii) the end of the period of 26 weeks beginning on 1 July of the later year.
20 After subsection 5JB(1D)
Insert:
One certificate a financial year
(1E) For the purposes of paragraph (1A)(b), if an actuarial certificate is given to the Commission in a financial year in relation to an income stream, then any actuarial certificate given to the Commission later in that financial year in relation to that income stream has no effect.
Part 2—Application and transitional provisions
21 Application and transitional provisions
(1) The amendments made by items 2, 5, 7, 10, 12, 15, 17 and 20 apply in relation to the financial year beginning on 1 July 2012 and all later financial years.
(2) The amendments made by items 4, 9, 14 and 19 apply in relation to the financial year ending on 30 June 2012 and all later financial years.
(3) For the purposes of subitem (2), in relation to the financial year ending on 30 June 2012:
(a) a reference in subsection 9A(1C) of the Social Security Act 1991 to an actuarial certificate referred to in paragraph (1)(b); and
(b) a reference in subsection 9B(1C) of the Social Security Act 1991 to an actuarial certificate referred to in paragraph (1A)(b); and
(c) a reference in subsection 5JA(1C) of the Veterans’ Entitlements Act 1986 to an actuarial certificate referred to in paragraph (1)(b); and
(d) a reference in subsection 5JB(1D) of the Veterans’ Entitlements Act 1986 to an actuarial certificate referred to in paragraph (1A)(b);
is a reference to an actuarial certificate referred to in that paragraph, as that paragraph was in force immediately before the commencement of this item.
Schedule 6—Termination payments
Social Security Act 1991
1 Point 1064‑F14 (definition of redundancy payment)
Before “does”, insert “includes a payment in lieu of notice, but”.
2 Point 1066A‑G14 (definition of redundancy payment)
Before “does”, insert “includes a payment in lieu of notice, but”.
3 Point 1067G‑H19 (definition of redundancy payment)
Before “does”, insert “includes a payment in lieu of notice, but”.
4 Point 1067L‑D15 (definition of redundancy payment)
Before “does”, insert “includes a payment in lieu of notice, but”.
5 Point 1068‑G7AQ (definition of redundancy payment)
Before “does”, insert “includes a payment in lieu of notice, but”.
6 Point 1068A‑E12 (definition of redundancy payment)
Before “does”, insert “includes a payment in lieu of notice, but”.
7 Point 1068B‑D18 (definition of redundancy payment)
Before “does”, insert “includes a payment in lieu of notice, but”.
8 Application
The amendments made by this Schedule apply in relation to payments made on or after the commencement of this Schedule.
[Minister’s second reading speech made in—
House of Representatives on 6 July 2011
Senate on 18 August 2011]
(127/11)
