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Social Security (Administration) Act 1999

  • - C2005C00416
  • In force - Superseded Version
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Act No. 191 of 1999 as amended, taking into account amendments up to Act No. 61 of 2005
An Act to provide for the administration of the social security law, and for related purposes
Administered by: DEST; DEWR; FaCSIA; Attorney-General's; Education, Employment and Workplace Relations; Families, Housing, Community Services and Indigenous Affairs
General Comments: This compilation is affected by a retrospective amendment, please see Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 [Act No. 91 of 2011], for details.
Registered 05 Jul 2005
Start Date 01 Jul 2005
End Date 13 Dec 2005

Social Security (Administration) Act 1999

Act No. 191 of 1999 as amended

This compilation was prepared on 4 July 2005
incorporating amendments up to Act No. 61 of 2005

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

2A......... Application of the Criminal Code...................................................... 1

3............ Interpretation...................................................................................... 1

4............ Social security law.............................................................................. 2

5............ Manner of giving notice...................................................................... 2

6............ Effect of certain determinations.......................................................... 2

6A......... Secretary may arrange for use of computer programs to make decisions                2

Part 2—General administration of social security law                                       3

7............ General administration of social security law..................................... 3

8............ Principles of administration................................................................ 3

9............ Government policy statements.......................................................... 4

10.......... Agreement on administrative arrangements........................................ 4

Part 3—Provision of benefits                                                                                            6

Division 1—Claim for social security payment or concession card     6

Subdivision A—Need for claim                                                                                 6

11.......... General rule......................................................................................... 6

Subdivision B—Cases where claim not necessary                                               6

12.......... Certain transfers between payments.................................................. 6

12A....... One-off payment to the aged.............................................................. 7

12AA.... One-off payment to carers................................................................. 7

12AB.... 2005 one-off payments to carers........................................................ 7

12B....... Language, literacy and numeracy supplement.................................... 7

12C....... Utilities allowance.............................................................................. 7

12D....... Seniors concession allowance............................................................. 8

13.......... Deemed claim—person contacting Department about a claim for a social security payment 8

14.......... Deemed claim—person contacting Department about a claim for a concession card              10

15.......... Deemed claim—incorrect or inappropriate claims........................... 12

Subdivision C—Manner of making a claim                                                          14

16.......... How to make a claim........................................................................ 14

17.......... Special requirements regarding claims for pension bonus................. 15

18.......... Additional provisions regarding claim for special employment advance 16

Subdivision D—Time limits for claims for maternity allowance and maternity immunisation allowance     17

Subdivision E—Time limits for claims for pension bonus                                 17

20.......... Interpretation.................................................................................... 17

21.......... General rule....................................................................................... 17

22.......... Last bonus period a full-year period................................................ 17

23.......... Last bonus period a part-year period............................................... 17

24.......... Claim by exempt partnered person.................................................. 18

25.......... Claim where membership has become non-accruing......................... 19

26.......... Claim where person has post-75 work period................................. 19

Subdivision F—Time limit for claims for fares allowance                                20

27.......... Time limit for claim.......................................................................... 20

Subdivision G—Age requirement for certain claims                                         21

28.......... Claims for disability support pension.............................................. 21

Subdivision H—Residence requirements for claimants                                    21

29.......... General rule....................................................................................... 21

30.......... Residence requirements for claimants for special benefit................. 21

31.......... Exclusion of certain claims from requirements of section 29............ 21

31A....... Exclusion of certain claims by special category visa holders from section 29 residence requirement     22

32.......... Claims for sickness allowance.......................................................... 22

Subdivision I—Withdrawal of claim                                                                      22

33.......... Right to withdraw............................................................................. 22

34.......... Manner of withdrawal...................................................................... 23

Subdivision J—Special provision for certain claims                                          23

35.......... Claims by persons in gaol etc........................................................... 23

35A....... Claims for advance pharmaceutical allowance.................................. 24

Division 2—Determination of claim                                                                    25

36.......... Obligation of Secretary to determine claim....................................... 25

37.......... Grant of claim................................................................................... 25

37A....... Duration of certain health care cards................................................ 28

38.......... Refusal of claim for special employment advance............................ 29

39.......... Deemed refusal of claim.................................................................... 29

40.......... Rejection of claim for failure to obtain foreign payment.................. 30

Division 3—Commencement of social security payment                        32

41.......... Commencement................................................................................ 32

42.......... Start day........................................................................................... 32

Division 4—Payment of social security payment                                         33

43.......... Payment by instalments................................................................... 33

44.......... Payment of instalments to person or nominee................................. 33

45.......... Payment of youth allowance—person under 18 and not independent 34

46.......... Payment of special employment advance........................................ 34

47.......... Payment of lump sum benefits......................................................... 34

47A....... Payment of one-off payment to the aged......................................... 35

47B....... Payment of one-off payment to carers............................................. 36

47C....... Payment of 2005 one-off payments to carers.................................. 36

48.......... Payment of telephone allowance...................................................... 36

48A....... Payment of utilities allowance.......................................................... 37

48B....... Payment of seniors concession allowance........................................ 38

49.......... Timing of payment of fares allowance............................................. 38

50.......... To whom fares allowance is to be paid............................................ 38

51.......... Advance in case of severe financial hardship.................................... 39

52.......... Payment of certain amounts outside Australia................................. 40

53.......... Payment of instalments where pension received under other legislation 41

54.......... Rounding off instalments of social security payments.................... 42

55.......... Payment into bank account etc......................................................... 42

56.......... Youth allowance—failure to nominate parent.................................. 44

57.......... Change of particular payday............................................................ 44

58.......... Payment of social security payment, other than pension bonus, after death          44

59.......... Payment of pension bonus after death............................................. 45

Division 5—Protection of social security payments                                   47

60.......... Protection of social security payment.............................................. 47

61.......... Deduction at request of recipient..................................................... 47

62.......... Effect of garnishee or attachment order............................................ 47

Division 6—Requirement to provide information, undergo medical examination etc.  49

Subdivision A—General                                                                                           49

63.......... Requirement to attend Department etc............................................ 49

64.......... Requirement to undergo medical examination etc............................. 52

65.......... Medical certificate in support of claim for sickness allowance........ 54

66.......... Notice to obtain foreign payment..................................................... 55

Subdivision B—Requirement to give information about change of circumstances etc.     56

67.......... Person who has made a claim........................................................... 56

68.......... Person receiving social security payment or holding concession card 57

69.......... Person who has received a social security payment or who has held a concession card         58

70.......... Care receiver in respect of whom carer payment being made........... 59

72.......... Provisions relating to notice............................................................. 59

73.......... Application of notice provisions...................................................... 62

74.......... Offence—failure to comply with notice........................................... 62

Subdivision C—Provision of tax file numbers                                                     62

75.......... Secretary’s power to request tax file numbers................................. 62

76.......... Effect of failure by person to satisfy request for person’s tax file number             63

77.......... Effect of failure by person to satisfy request for partner’s or related person’s tax file number             64

Division 7—Various determinations                                                                   67

Subdivision A—Provisions relating to social security payments                    67

78A....... When this Subdivision does not apply............................................. 67

78.......... Rate increase determination.............................................................. 67

79.......... Rate reduction determination............................................................ 67

80.......... Cancellation or suspension determination........................................ 67

81.......... Cancellation or suspension for non-compliance with certain notices 68

81A....... Rate reduction determination for non-compliance with notice relating to rent assistance       69

82.......... Cancellation or suspension for failure to take action to obtain foreign payment    70

83.......... Changes to payments by computer.................................................. 71

84.......... Automatic transfer by computer...................................................... 71

85.......... Resumption of payment after cancellation or suspension............... 72

85A....... Rate increase determination following rate reduction for non-compliance with notice relating to rent assistance  72

Subdivision B—Provisions relating to concession cards                                  73

86.......... Cancellation—person not qualified.................................................. 73

87.......... Cancellation—non-compliance with certain notices......................... 73

88.......... Changes to qualification by computer.............................................. 73

89.......... Resumption of qualification............................................................. 74

Division 8—Automatic cancellations and variations                                  75

Subdivision A—Social security payments                                                            75

90A....... When this Subdivision does not apply............................................. 75

90.......... Automatic cancellation—transfer to new payment type................. 75

91.......... Automatic cancellation of parenting payment on transfer to new payment type—member of couple  75

93.......... Automatic cancellation—recipient complying with subsection 68(2) notice          76

94.......... Automatic cancellation—recipient not complying with subsection 68(2) notice    78

95.......... Automatic cancellation—failure to provide statement under subsection 68(2)       79

96.......... Disability support pension—suspension instead of cancellation in some cases     80

97.......... Disability support pension—suspension taken to have been under section 96      82

98.......... Automatic rate reduction—partner starting to receive pension or benefit              83

99.......... Automatic rate reduction—recipient complying with subsection 68(2) notice       84

100........ Automatic rate reduction—recipient not complying with subsection 68(2) notice                86

101........ Automatic rate reduction—receipt of pension by person receiving parenting payment         87

103........ Changes to payments by computer following automatic cancellation or reduction                88

Subdivision B—Concession cards                                                                         88

104........ Automatic cancellation—holder complying with subsection 68(4) notice              88

105........ Automatic cancellation—holder not complying with subsection 68(4) notice        89

106........ Changes by computer following automatic cancellation................... 89

106A..... Automatic cancellation on cessation of qualification........................ 89

Subdivision C—Additional provision for certain pensioner concession cards and automatic issue health care cards                                                                                                         90

106B..... Automatic cancellation..................................................................... 90

Division 9—Date of effect of determinations                                                 92

Subdivision A—Determinations relating to claims                                            92

107........ General rule....................................................................................... 92

Subdivision B—Determinations under section 78, 81A, 85 or 85A                93

108........ Definition.......................................................................................... 93

109........ Date of effect of favourable determination resulting from review.... 94

110........ Date of effect of favourable determination....................................... 95

111........ Date of effect of section 78 determination resulting from indexation or adjustment               99

114........ Date of effect of other favourable determinations.......................... 100

Subdivision C—Determinations under section 89                                            100

115........ Definition........................................................................................ 100

116........ Date of effect of favourable determination resulting from review—concession cards             100

Subdivision D—Date of effect of adverse determinations relating to social security payments       102

117........ Definition........................................................................................ 102

118........ Date of effect of adverse determinations—general rules................ 102

120........ Additional rules in the case of carer payment................................ 110

Subdivision E—Date of effect of adverse determinations relating to concession cards     114

121........ Definition........................................................................................ 114

122........ Date of effect of adverse determinations........................................ 114

Division 10—Continuing effect of determinations                                    115

123........ Continuing effect of determinations............................................... 115

Part 3A—Nominees                                                                                                           116

Division 1—Preliminary                                                                                          116

123A..... Definitions...................................................................................... 116

Division 2—Appointment of nominees                                                           117

123B..... Appointment of payment nominee................................................ 117

123C..... Appointment of correspondence nominee..................................... 117

123D..... Provisions relating to appointments............................................... 117

123E...... Suspension and revocation of nominee appointments................... 118

Division 3—Payments to payment nominee                                                 120

123F...... Payment of instalments etc. to payment nominee......................... 120

Division 4—Functions and responsibilities of nominees                       121

123G..... Definition........................................................................................ 121

123H..... Actions of correspondence nominee on behalf of benefit recipient 121

123I....... Giving of notices to correspondence nominee................................ 122

123J...... Compliance by correspondence nominee....................................... 122

123K..... Notification by nominee of matters affecting ability to act as nominee  124

123L...... Statement by payment nominee regarding disposal of money....... 125

Division 5—Other matters                                                                                    127

123M.... Protection of principal against liability for actions of nominee...... 127

123N..... Protection of nominee against criminal liability.............................. 127

123O..... Duty of nominee to principal......................................................... 127

123P...... Saving of Secretary’s powers of revocation................................... 127

123Q..... Saving of Secretary’s powers to give notices to principal.............. 128

123R..... Notification of nominee where notice given to principal................ 128

123S...... Right of nominee to attend with principal...................................... 128

Part 4—Review of decisions                                                                                         130

Division 1—Effect of Part                                                                                       130

124........ Application of Part to decisions under repealed laws.................... 130

125........ Decisions by officers under instruments........................................ 130

Division 2—Internal review                                                                                  131

126........ Review of decisions by Secretary................................................... 131

127........ Decisions that are not reviewable by the Secretary........................ 131

128........ Notice to Executive Director or AAT Registrar............................. 132

129........ Application for review................................................................... 132

130........ Withdrawal of application.............................................................. 133

131........ Secretary may continue payment pending outcome of application for review       134

132........ Guidelines for exercise of Secretary’s power to continue payment 135

132A..... Automatic payment if review of section 501C terms decision sought 135

133........ Automatic payment if review of section 544C terms decision sought 136

134........ Automatic payment if review of section 607 terms decision sought 137

134A..... Automatic payment if review sought of decision under section 731N of the 1991 Act         137

135........ Review of decisions following application under section 129........ 138

136........ Notice of decision on review.......................................................... 139

137........ Certain decisions not to be revived................................................. 139

138........ Notification of further rights of review.......................................... 141

Division 3—Review by the Social Security Appeals Tribunal             143

Subdivision A—Preliminary                                                                                 143

139........ Continuance of Social Security Appeals Tribunal.......................... 143

Subdivision B—Review by SSAT                                                                          143

140........ Application of Division.................................................................. 143

141........ SSAT objective............................................................................... 144

142........ Application for review by SSAT................................................... 144

143........ Application requirement for certain decisions................................ 145

144........ Non-reviewable decisions............................................................... 145

145........ Secretary may continue payment pending outcome of application for review       147

146........ Guidelines for exercise of Secretary’s power to continue payment 148

146A..... Automatic payment if review of decision under section 501C of the 1991 Act sought          148

147........ Automatic payment if review of decision under section 544C of the 1991 Act sought          149

148........ Automatic payment if review of decision under section 607 of the 1991 Act sought            150

148A..... Automatic payment if review of decision under section 731N of the 1991 Act sought         150

149........ SSAT review powers...................................................................... 151

150........ SSAT review powers (Activity Agreement decisions).................. 152

151........ Powers of the SSAT....................................................................... 153

152........ Date of effect of SSAT decisions (other than Activity Agreement decisions)        154

153........ Date of effect of SSAT decision (Activity Agreement decision)... 155

154........ Application requirements............................................................... 156

155........ Variation of decision before review completed............................... 157

156........ Parties to SSAT review.................................................................. 157

Division 4—Procedures for review by the SSAT                                       158

Subdivision A—Preliminary procedures                                                            158

157........ Procedure on receipt of application for review by SSAT.............. 158

158........ Parties to be given a statement about the decision under review.... 159

159........ Arrangements for hearing of application........................................ 159

160........ Notice of application to person affected by decision..................... 160

Subdivision B—How the SSAT informs itself about the decision under review  160

161........ Submissions to SSAT..................................................................... 160

162........ SSAT hearings on written submissions only.................................. 161

163........ SSAT hearings without oral submissions by party........................ 162

164........ Evidence on oath or affirmation...................................................... 163

165........ Provision of further information by Secretary............................... 163

166........ Exercise by Secretary of powers under section 192....................... 163

Subdivision C—The hearing                                                                                 163

167........ Hearing procedure........................................................................... 163

168........ Hearing in private........................................................................... 164

169........ Restrictions on disclosure of information obtained at hearing........ 164

Subdivision D—Other procedural matters                                                         164

170........ Adjournment of SSAT hearings...................................................... 164

171........ Withdrawal of application for review............................................. 165

172........ Dismissal of an application............................................................ 165

173........ Chairperson for each SSAT hearing................................................ 166

174........ Decision of questions before SSAT................................................ 166

175........ Directions as to procedure for hearings.......................................... 166

176........ Costs of review............................................................................... 167

Subdivision E—Notification of decisions                                                            168

177........ Procedure following SSAT decision............................................... 168

Division 5—Review by the Administrative Appeals Tribunal            169

Subdivision A—Preliminary                                                                                 169

178........ Application of Division.................................................................. 169

Subdivision B—Right to review by AAT                                                             169

179........ Review of decisions by AAT......................................................... 169

180........ Variation of decision before AAT review completed..................... 170

181........ Review by AAT limited to decisions reviewed by SSAT.............. 171

182........ Settlement of proceedings before the AAT.................................... 171

Subdivision C—Modification of Administrative Appeals Tribunal Act         171

183........ Definition........................................................................................ 171

184........ Notice of application for review..................................................... 171

185........ Parties to a review by the AAT..................................................... 171

186........ Lodgment of documents with the AAT......................................... 172

187........ Power of AAT to obtain additional information............................ 172

188........ Operation and implementation of the decision under review......... 173

189........ Failure of party to appear.............................................................. 173

Part 5—Information management                                                                             174

Division 1—Information gathering                                                                    174

191........ Application of Division.................................................................. 174

192........ General power to obtain information............................................. 174

193........ Power to obtain information from a person who owes a debt to the Commonwealth            175

194........ Obtaining information about a person who owes a debt to the Commonwealth     175

195........ Obtaining information to verify claims etc..................................... 176

196........ Written notice of requirement......................................................... 178

197........ Offence—failure to comply with requirement............................... 179

198........ Obligations not affected by State or Territory laws....................... 179

Division 2—End-of-employment statements                                               180

199........ Request for end-of-employment statement.................................... 180

200........ Offence—failure to give end-of-employment statement................ 180

Division 3—Confidentiality                                                                                    181

201........ Operation of Division..................................................................... 181

201A..... Definition of officer........................................................................ 181

202........ Protection of personal information................................................. 181

203........ Offence—unauthorised access to information................................ 182

204........ Offence—unauthorised use of protected information.................... 183

204A..... Use of tax file numbers................................................................... 183

205........ Offence—soliciting disclosure of protected information................ 184

206........ Offence—offering to supply protected information...................... 184

207........ Protection of certain documents etc. from production to court etc. 185

208........ Disclosure of information by Secretary.......................................... 185

209........ Guidelines for exercise of Secretary’s disclosure powers............... 186

210........ Officer’s declaration....................................................................... 186

Part 6—Offences                                                                                                                 187

Division 1—Preliminary                                                                                          187

211........ Application of Part......................................................................... 187

Division 2—Offences                                                                                                188

212........ False statement in connection with claim or hardship request....... 188

213........ False statement to deceive or affect rates....................................... 188

214........ False statement or document.......................................................... 189

215........ Obtaining payment that is not payable.......................................... 189

216........ Payment obtained through fraud etc............................................... 190

Division 3—Penalties                                                                                               192

217........ Penalty for contravention of Division 2......................................... 192

218........ Repayment of social security payment.......................................... 192

219........ Penalty where person convicted of more than one offence............ 192

Division 4—Procedural matters                                                                          193

220........ Joining of charges............................................................................ 193

221........ Particulars of each offence.............................................................. 193

222........ Trial of joined charges..................................................................... 193

223........ Evidentiary effect of Secretary’s certificate................................... 193

224........ Enforcement of court certificate as judgment................................. 194

Division 5—Liability of certain employers and principals for offences  195

Subdivision A—Interpretation                                                                              195

225........ State of mind of a person................................................................ 195

228........ Offence........................................................................................... 195

Subdivision C—Proceedings against non-corporations                                  195

231........ State of mind of individual.............................................................. 195

232........ Conduct of employee or agent........................................................ 196

233........ Exclusion of imprisonment as penalty for certain offences............ 196

Part 7—Miscellaneous                                                                                                     197

234........ Delegation....................................................................................... 197

235........ Authorised review officers............................................................. 198

236........ Decisions to be in writing............................................................... 198

237........ Notice of decisions......................................................................... 198

238........ Payments to Commissioner of Taxation or the Child Support Registrar                199

239........ Judicial notice of certain matters.................................................... 199

240........ Documentary evidence................................................................... 199

240A..... Form of cards.................................................................................. 201

240B..... Restrictions on listing of dependants............................................. 202

240C..... Issue of replacement card on expiry of automatic issue card......... 203

241........ Annual report................................................................................. 203

242........ Appropriation................................................................................ 204

243........ Regulations..................................................................................... 204

Part 8—Transitional and saving provisions                                                         206

244........ Construction of references to 1991 Act......................................... 206

245........ Correspondence of provisions........................................................ 206

246........ Saving of social security payments and concession cards.............. 206

247........ Saving of instruments under 1991 Act........................................... 207

248........ Saving of claims for social security payments and concession cards 207

249........ Transitional instalment period........................................................ 208

250........ Application for amount owing at recipient's death........................ 208

251........ Power to obtain information about events etc. before 20 March 2000 209

252........ Unfinished reviews by Secretary.................................................... 209

253........ Unfinished reviews by SSAT......................................................... 210

254........ Unfinished reviews by AAT.......................................................... 210

255........ Saving of steps in review process................................................... 211

256........ Entitlements and liabilities.............................................................. 211

257........ Transitional regulations.................................................................. 211

Schedule 1—Dictionary                                                                                                   212

1............ Definitions...................................................................................... 212

Schedule 2—Rules for working out start day                                                     214

Part 1—Introductory                                                                                                         214

1............ Definitions...................................................................................... 214

2............ Different start days under Parts 2 and 3........................................ 214

Part 2—General rules                                                                                                       216

3............ Start day—general rule................................................................... 216

4............ Start day—early claim.................................................................... 216

5............ Effect of exclusion period............................................................... 218

6............ Saving.............................................................................................. 218

Part 3—Backdated start day                                                                                        219

Division 1—Explanatory                                                                                         219

7............ Explanation of Part......................................................................... 219

Division 2—Rules applying to all or most social security payments 220

8............ Claim made soon after partner’s claim........................................... 220

9............ Claim by transferee......................................................................... 220

10.......... Claim soon after childbirth............................................................. 221

11.......... Incapacitated claimant.................................................................... 221

12.......... Claim after death of partner............................................................ 222

13.......... Claim for social security payment following claim for disaster relief payment      222

14.......... Claim where Part 3.14A of the 1991 Act applies.......................... 222

14A....... Claim where Part 3.14B of the 1991 Act applies........................... 223

Division 3—Rules applying to particular social security payments 224

15.......... Certain persons subject to cancellation of austudy payment, newstart allowance, youth allowance or special benefit........................................................................................................ 224

16.......... Carer allowance for disabled child or children................................ 224

17.......... Carer allowance for disabled adult.................................................. 225

18.......... Double orphan pension.................................................................. 225

19.......... Double orphan pension—claim following death of former recipient 226

28.......... Newstart allowance—claimant for disability support pension...... 226

29.......... Parenting payment.......................................................................... 226

30.......... Pensioner education supplement.................................................... 227

31.......... Pensioner education supplement: claim before 1 April.................. 227

32.......... Pensioner education supplement: claim before 1 August............... 227

33.......... Sickness allowance: incapacitated claimant.................................... 228

34.......... Youth allowance: incapacitated claimant........................................ 228

35.......... Youth allowance—claimant for disability support pension........... 228

36.......... Youth allowance—initial claim for family tax benefit.................... 229

Division 4—Rules applying to health care cards                                       230

37.......... Health care cards, other than automatic issue health care cards..... 230

Schedule 3—Constitution and membership of the Social Security Appeals Tribunal          232

Part 1—Membership of the SSAT                                                                            232

1............ Composition of the SSAT.............................................................. 232

2............ The Executive Director................................................................... 232

3............ Appointment of members.............................................................. 232

4............ Period of appointment.................................................................... 233

5............ Conditions of appointment............................................................ 233

6............ Acting appointment: Executive Director........................................ 233

7............ Acting appointments: Directors and other members...................... 233

8............ Extension of acting appointments.................................................. 234

9............ Effect of acts done by persons appointed to act............................ 235

Part 2—Organisation of the business of the SSAT                                          237

10.......... Constitution of SSAT for each hearing........................................... 237

11.......... Number of members for hearings.................................................... 237

12.......... Member unavailable to complete review........................................ 237

Part 3—Administrative matters                                                                                  239

13.......... Remuneration and allowances of members..................................... 239

14.......... Leave of absence............................................................................. 239

15.......... Approval to engage in outside employment................................... 239

16.......... Resignation..................................................................................... 240

17.......... Removal from office....................................................................... 240

18.......... Disclosure of interests.................................................................... 241

19.......... Disclosure of confidential information........................................... 242

20.......... Delegation by the Executive Director............................................. 244

21.......... Protection of members and witnesses............................................ 244

22.......... Fees for witnesses.......................................................................... 244

23.......... Oath or affirmation of office........................................................... 244

24.......... Staff of the SSAT........................................................................... 245

25.......... Annual report................................................................................. 245

Part 4—Saving provisions                                                                                              246

26.......... Saving of appointments.................................................................. 246

27.......... Saving of acts done......................................................................... 246

28.......... Saving of reviews in progress......................................................... 247

Schedule 4—Forms of oath and affirmation                                                         248

Schedule 5—Provisions consequential on the enactment of the Commonwealth Services Delivery Agency Act 1997                                                                                                                249

1............ References to the Secretary and the Department—requirements etc. by delegate  249

2............ References to the Secretary and the Department—directions by Secretary            250

Notes                                                                                                                                          253


An Act to provide for the administration of the social security law, and for related purposes

Part 1Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Social Security (Administration) Act 1999.

2  Commencement [see Note 1]

             (1)  Subject to subsections (2) and (3), this Act commences on 20 March 2000.

             (2)  This Part and section 257 commence on the day on which this Act receives the Royal Assent.

             (3)  Section 54 commences on 1 July 2000.

2A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

3  Interpretation

             (1)  Unless a contrary intention appears, an expression that is defined in Schedule 1 has in this Act the meaning given in that Schedule.

             (2)  Unless a contrary intention appears, an expression that is used in the 1991 Act has the same meaning, when used in this Act, as in the 1991 Act.

             (3)  A reference in this Act to the social security law (other than the reference in section 4) is a reference to this Act, the 1991 Act and any other Act that is expressed to form part of the social security law.

             (4)  A reference in this Act to a provision of the social security law is a reference to a provision of this Act, the 1991 Act or any other Act that is expressed to form part of the social security law.

             (5)  To the extent that a provision of this Act relates to a double orphan pension, a reference in the provision to a person includes a reference to an approved care organisation.

             (6)  Unless a contrary intention appears, a reference in this Act (other than a reference in section 243):

                     (a)  to this Act; or

                     (b)  to the social security law;

includes a reference to regulations made under section 243.

4  Social security law

                   This Act forms part of the social security law.

5  Manner of giving notice

             (1)  If a provision of the social security law requires that a written notice be given to a person, it is sufficient compliance with that provision if the notice is given in a manner approved by the Secretary.

             (2)  Nothing in subsection (1) prevents a notice being given in accordance with section 28A of the Acts Interpretation Act 1901.

6  Effect of certain determinations

                   If the social security law provides that a determination takes effect on a day (the earlier day) before the day on which the determination is made, the social security law has effect as if the determination had taken effect on the earlier day.

6A  Secretary may arrange for use of computer programs to make decisions

             (1)  The Secretary may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the Secretary may make decisions under the social security law.

             (2)  A decision made by the operation of a computer program under an arrangement made under subsection (1) is taken to be a decision made by the Secretary.


 

Part 2General administration of social security law

  

7  General administration of social security law

                   The Secretary is, subject to any direction of the Minister, to have the general administration of the social security law.

8  Principles of administration

                   In administering the social security law, the Secretary is to have regard to:

                     (a)  the desirability of achieving the following results:

                              (i)  the ready availability to members of the public of advice and information services relating to income support generally and to the social security payments that are available;

                             (ii)  the ready availability of publications containing clear statements about income support entitlements and procedural requirements;

                            (iii)  the delivery of services under the law in a fair, courteous, prompt and cost-efficient manner;

                            (iv)  the development of a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on social security recipients;

                             (v)  the establishment of procedures to ensure that abuses of the social security system are minimised; and

                     (b)  the special needs of disadvantaged groups in the community; and

                     (c)  the need to be responsive to the interests of the Aboriginal and Torres Strait Islander communities and to cultural and linguistic diversity; and

                     (d)  the importance of the system of review of decisions under the social security law; and

                     (e)  the need to ensure that social security recipients have adequate information regarding the system of review of decisions under the social security law; and

                      (f)  the need to apply government policy in accordance with the law and with due regard to relevant decisions of the Administrative Appeals Tribunal and the Social Security Appeals Tribunal.

9  Government policy statements

             (1)  The Minister may prepare a written statement of the policy of the Commonwealth Government in relation to the administration of the social security law and may give a copy of the statement to:

                     (a)  the Secretary; and

                     (b)  the Executive Director of the Social Security Appeals Tribunal.

             (2)  If the Minister gives a copy of a statement to the Secretary or the Executive Director under subsection (1), the Minister must cause a copy of the statement to be laid before each House of the Parliament within 15 sitting days of that House after the Minister gives the copy under that subsection.

             (3)  In exercising powers under the social security law, an officer must have regard to any statement a copy of which has been given to the Secretary under subsection (1).

             (4)  In exercising powers under the social security law, the Executive Director and the Social Security Appeals Tribunal must have regard to any statement a copy of which has been given to the Executive Director under subsection (1).

10  Agreement on administrative arrangements

             (1)  The Secretary and the Executive Director of the Social Security Appeals Tribunal may agree on administrative arrangements to further the objectives of Part 4 of this Act.

             (2)  The Secretary and the Employment Secretary may agree on administrative arrangements to further the objectives of Part 2.12 of the 1991 Act.

             (3)  Administrative arrangements agreed on under subsection (2) may provide for officers of the Employment Department to perform functions or duties, or exercise powers, under Part 2.12 of the 1991 Act.

             (4)  The Secretary and the Secretary to the Department of Agriculture, Fisheries and Forestry may agree on administrative arrangements to further the objectives of sections 26 and 27 of the 1991 Act.


 

Part 3Provision of benefits

Division 1Claim for social security payment or concession card

Subdivision ANeed for claim

11  General rule

             (1)  Subject to subsection (2) and Subdivision B, a person who wants to be granted:

                     (a)  a social security payment; or

                     (b)  a concession card;

must make a claim for the payment or card in accordance with this Division.

             (2)  Subsection (1) does not apply to a concession card for which a person is qualified under Division 1 of Part 2A.1 of the 1991 Act or under Subdivision A of Division 3 of that Part.

Subdivision BCases where claim not necessary

12  Certain transfers between payments

             (1)  Subject to subsection (3), if:

                     (a)  a person is receiving an income support payment; and

                     (b)  while receiving the payment, the person becomes qualified for another income support payment (the other payment); and

                     (c)  the Secretary determines that the person is to be transferred to the other payment;

the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.

             (2)  Subject to subsection (3), if:

                     (a)  a person who has been receiving an income support payment ceases to receive the payment; and

                     (b)  immediately after ceasing to receive that payment, the person becomes qualified for another income support payment (the other payment); and

                     (c)  the Secretary determines that the person is to be transferred to the other payment;

the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.

             (3)  The Secretary may only make a determination under subsection (1) or (2) if the transfer is one that the Secretary could have determined should occur apart from this section.

12A  One-off payment to the aged

                   A claim is not required for one-off payment to the aged.

12AA  One-off payment to carers

                   A claim is not required for one-off payment to carers (carer allowance related) or one-off payment to carers (carer payment related).

12AB  2005 one-off payments to carers

                   A claim is not required for:

                     (a)  2005 one-off payment to carers (carer payment related); or

                     (b)  2005 one-off payment to carers (carer service pension related); or

                     (c)  2005 one-off payment to carers (carer allowance related).

12B  Language, literacy and numeracy supplement

                   A claim is not required for language, literacy and numeracy supplement.

12C  Utilities allowance

                   A claim is not required for utilities allowance.

12D  Seniors concession allowance

                   A claim is not required for seniors concession allowance.

13  Deemed claim—person contacting Department about a claim for a social security payment

             (1)  For the purposes of the social security law, if:

                     (a)  the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

                     (b)  the person is, on the day on which the Department is contacted, qualified for the social security payment; and

                     (c)  the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

                     (d)  the person lodges a claim for the social security payment within 14 days after the Department is contacted;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

             (2)  For the purposes of the social security law, if:

                     (a)  the Department is contacted by or on behalf of a person in relation to a claim for a social security payment, other than crisis payment or special employment advance; and

                     (b)  the person is, on the day on which the Department is contacted, qualified for the social security payment; and

                     (c)  the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

                     (d)  the person lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

                     (e)  the Secretary is satisfied that:

                              (i)  throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and

                             (ii)  that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

             (3)  For the purposes of the social security law, if:

                     (a)  the Department is contacted by or on behalf of a person (the claimant) in relation to a claim for a social security payment, other than crisis payment or special employment advance; and

                     (b)  the claimant is, on the day on which the Department is contacted, qualified for the social security payment; and

                     (c)  the Secretary gives the claimant a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

                     (d)  the claimant lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

                     (e)  the Secretary is satisfied that:

                              (i)  throughout the period starting on the day on which the Department was contacted and ending on the day on which the claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and

                             (ii)  throughout that period, the other person suffered from a medical condition; and

                            (iii)  the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant’s ability to lodge the claim earlier;

the claimant is taken to have made a claim for the social security payment on the day on which the Department was contacted.

          (3A)  For the purposes of the social security law, if:

                     (a)  the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

                     (b)  the person is, on the day on which the Department is contacted, qualified for the social security payment; and

                     (c)  the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

                     (d)  the person lodges a claim for the social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

                     (e)  the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

             (4)  A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of facsimile, computer equipment or other electronic means.

             (5)  This section has effect subject to section 18.

14  Deemed claim—person contacting Department about a claim for a concession card

             (1)  For the purposes of the social security law, if:

                     (a)  the Department is contacted by or on behalf of a person in relation to a claim for a concession card; and

                     (b)  the person is, on the day on which the Department is contacted, qualified for the concession card; and

                     (c)  the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

                     (d)  the person lodges a claim for the concession card within 14 days after he or she contacts the Department;

the person is taken to have made a claim for the concession card on the day on which the Department was contacted.

             (2)  For the purposes of the social security law, if:

                     (a)  the Department is contacted by or on behalf of a person in relation to a claim for a concession card; and

                     (b)  the person is, on the day on which the Department is contacted, qualified for the concession card; and

                     (c)  the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

                     (d)  the person lodges a claim for the concession card more than 14 days, but not more than 13 weeks, after the Department is contacted; and

                     (e)  the Secretary is satisfied that:

                              (i)  throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and

                             (ii)  that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier;

the person is taken to have made a claim for the concession card on the day on which the Department was contacted.

             (3)  For the purposes of the social security law, if:

                     (a)  the Department is contacted by or on behalf of a person (the claimant) in relation to a claim for a concession card; and

                     (b)  the claimant is, on the day on which the Department is contacted, qualified for the concession card; and

                     (c)  the Secretary gives the claimant a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

                     (d)  the claimant lodges a claim for the concession card more than 14 days, but not more than 13 weeks, after the Department is contacted; and

                     (e)  the Secretary is satisfied that:

                              (i)  throughout the period starting on the day on which the Department was contacted and ending on the day on which the claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and

                             (ii)  throughout that period, the other person suffered from a medical condition; and

                            (iii)  the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant’s ability to lodge the claim earlier;

the claimant is taken to have made a claim for the concession card on the day on which the Department was contacted.

          (3A)  For the purposes of the social security law, if:

                     (a)  the Department is contacted by or on behalf of a person in relation to a claim for a concession card; and

                     (b)  the person is, on the day on which the Department is contacted, qualified for the concession card; and

                     (c)  the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

                     (d)  the person lodges a claim for the concession card more than 14 days, but not more than 13 weeks, after the Department is contacted; and

                     (e)  the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;

the person is taken to have made a claim for the concession card on the day on which the Department was contacted.

             (4)  A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of facsimile, computer equipment or other electronic means.

             (5)  This section has effect subject to section 18.

15  Deemed claim—incorrect or inappropriate claims

             (1)  For the purposes of the social security law, if:

                     (a)  a person makes an incorrect claim; and

                     (b)  the person subsequently makes a claim for a social security payment for which the person is qualified; and

                     (c)  the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made a claim for that social security payment on the day on which he or she made the incorrect claim.

             (2)  For the purposes of this section, a claim made by a person is an incorrect claim if:

                     (a)  the claim is for a social security payment, other than a supplementary payment; and

                     (b)  when the claim was made, the person was not qualified for the payment claimed but was qualified for another social security payment, other than a supplementary payment.

             (3)  For the purposes of this section, a claim made by a person is an incorrect claim if:

                     (a)  the claim is for a supplementary payment; and

                     (b)  when the claim was made, the person was not qualified for the payment claimed but was qualified for another supplementary payment.

             (4)  For the purposes of the social security law, if:

                     (a)  a person makes a claim for a pension, allowance, benefit or other payment under a law of the Commonwealth, other than this Act or the 1991 Act, or under a program administered by the Commonwealth, that is similar in character to a social security payment, other than a supplementary payment (the initial claim); and

                     (b)  when the claim was made, the person was qualified for a social security payment, other than a supplementary payment; and

                     (c)  the person subsequently makes a claim for the social security payment referred to in paragraph (b) (the later claim); and

                     (d)  the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made the later claim on the day on which the initial claim was made.

          (4A)  For the purposes of the social security law, if:

                     (a)  a person makes a claim for an income support payment (the initial claim); and

                     (b)  on the day on which the initial claim is made, the person is qualified for another income support payment (the other income support payment); and

                     (c)  the person subsequently makes a claim for the other income support payment (the later claim); and

                     (d)  the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made the later claim on the day on which the initial claim was made.

          (4B)  For the purposes of the social security law, if:

                     (a)  a person makes a claim for a supplementary payment (the initial claim); and

                     (b)  on the day on which the initial claim is made, the person is qualified for another supplementary payment (the other supplementary payment); and

                     (c)  the person subsequently makes a claim for the other supplementary payment (the later claim); and

                     (d)  the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made the later claim on the day on which the initial claim was made.

             (5)  In this section:

supplementary payment means:

                     (a)  carer allowance; or

                     (b)  double orphan pension; or

                     (c)  education entry payment; or

                     (d)  employment entry payment; or

                      (i)  mobility allowance; or

                      (j)  pensioner education supplement.

Subdivision CManner of making a claim

16  How to make a claim

             (1)  A person makes a claim for a social security payment or a concession card:

                     (a)  by lodging a written claim for the payment or card; or

                     (b)  by making the claim in accordance with subsection (7).

             (2)  A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.

             (3)  Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.

             (4)  A written claim is lodged by being delivered:

                     (a)  to a person apparently performing duties at a place approved for the purpose by the Secretary; or

                     (b)  to a person approved for the purpose by the Secretary; or

                     (c)  in a manner, and to a place, approved for the purpose by the Secretary.

             (5)  Subject to subsection (6), a place or person approved for the purposes of subsection (4) must be a place or person in Australia.

             (6)  The Secretary may approve a place or person outside Australia for the purposes of subsection (4) for the lodgment of claims made under a scheduled international social security agreement.

             (7)  A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.

             (8)  The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section.

17  Special requirements regarding claims for pension bonus

             (1)  A claim for pension bonus must be either:

                     (a)  attached to a proper claim made by the person for age pension and lodged together with that claim for age pension; or

                     (b)  made in accordance with an invitation under subsection (3).

             (2)  A claim for pension bonus may be made even though it is not certain whether the person will start to receive an age pension at or after the time when the person makes the claim. The claim has effect as a claim that is contingent on the person receiving an age pension.

             (3)  If:

                     (a)  a person makes a claim for an age pension; and

                     (b)  the claim is in accordance with a form that does not require the claimant to disclose whether the claimant is registered as a member of:

                              (i)  the pension bonus scheme; or

                             (ii)  the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act; and

                     (c)  the person is, to the knowledge of the Secretary, registered as a member of the pension bonus scheme; and

                     (d)  a claim by the person for pension bonus is not attached to the claim for age pension;

the Secretary must give the claimant a written notice inviting the claimant to lodge a claim for pension bonus:

                     (e)  within such period after the lodgment of the claim for age pension as is specified in the notice; and

                      (f)  at such place as in specified in the notice.

             (4)  If a claim for pension bonus is made in accordance with an invitation under subsection (3), the person is taken to have claimed the pension bonus at the same time as the person claimed age pension.

18  Additional provisions regarding claim for special employment advance

             (1)  A claim for special employment advance must specify the amount of special employment advance sought.

             (2)  Subject to subsection (3), if a claim based on the effect of the unreceived income on the claimant’s special employment advance qualifying entitlement is lodged before the first day for which special employment advance is not payable or is reduced as a result of the claimant, or the claimant’s partner, having earned the income, the claim is taken to have been made on that day.

             (3)  If:

                     (a)  the claimant’s special employment advance qualifying entitlement referred to in subsection (2) is an entitlement in respect of which the Secretary has determined that this subsection applies; and

                     (b)  the claim is lodged before the day referred to in subsection (2);

the Secretary may treat the claim as having been made on a day earlier than the day referred to in subsection (2) that the Secretary considers appropriate having regard to the kind of entitlement concerned.

             (4)  A claim based on the need for financial assistance from the Commonwealth to take up offered employment must set out:

                     (a)  particulars (including the duration) of the employment; and

                     (b)  the way in which the financial assistance is to be expended to enable the claimant to take up the employment.

Subdivision DTime limits for claims for maternity allowance and maternity immunisation allowance

Subdivision ETime limits for claims for pension bonus

20  Interpretation

                   An expression used in this Subdivision has the same meaning as it has in Part 2.2A of the 1991 Act.

21  General rule

                   A claim for pension bonus must be made within the lodgment period fixed by this Subdivision.

22  Last bonus period a full-year period

             (1)  If a person’s last bonus period is a full-year period, the lodgment period for a claim by the person for pension bonus is the period of 13 weeks immediately following that bonus period. However, this rule does not apply if:

                     (a)  the person is an exempt partnered person for the purposes of section 24 at the end of the person’s last bonus period; or

                     (b)  the person’s membership of the pension bonus scheme becomes non-accruing immediately after the end of the person’s last bonus period; or

                     (c)  the person is a post-75 member of the pension bonus scheme and has a post-75 work period (see subsection 26(2)).

             (2)  For the purposes of this section, if a person has accrued only one full-year bonus period, that period is the person’s last bonus period.

23  Last bonus period a part-year period

             (1)  If a person’s last bonus period is a part-year period, the lodgment period for a claim by the person for pension bonus is:

                     (a)  the period of 13 weeks beginning at the end of that bonus period; or

                     (b)  if the Secretary allows a longer period—that longer period.

However, this subsection does not apply if:

                     (c)  the person is an exempt partnered person (see subsection 24(2)) at the end of the person’s last bonus period; or

                     (d)  the person’s membership of the pension bonus scheme becomes non-accruing immediately after the end of the person’s last bonus period; or

                     (e)  the person is a post-75 member of the pension bonus scheme and has a post-75 work period (see subsection 26(2)).

             (2)  If:

                     (a)  subsection (1) applies to a person’s claim for pension bonus; and

                     (b)  the claim is lodged within a period allowed under paragraph (1)(b);

Division 6 of Part 2.2A of the 1991 Act has effect, in relation to the calculation of the amount of that pension bonus, as if the person had not accrued the part-year bonus period.

24  Claim by exempt partnered person

             (1)  If a person is an exempt partnered person at the end of the person’s last bonus period, the lodgment period applicable to the person’s claim for pension bonus is the period:

                     (a)  beginning at the end of that bonus period; and

                     (b)  ending at:

                              (i)  the time of the last occasion on which the person’s partner could have lodged a claim for a pension bonus; or

                             (ii)  the end of the period of 13 weeks after the person ceases to be a member of the same couple (whether because of the death of the person’s partner or for any other reason);

                            whichever comes first.

             (2)  For the purposes of this section, a person is an exempt partnered person at a particular time if, at that time, the person is a member of a couple and:

                     (a)  the person’s partner is an accruing or non-accruing member of the pension bonus scheme; or

                     (b)  the person’s partner is an accruing or non-accruing member of the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act.

25  Claim where membership has become non-accruing

                   If a person’s membership of the pension bonus scheme becomes non-accruing immediately after the end of the person’s last bonus period, the lodgment period applicable to the person’s claim for pension bonus is the period:

                     (a)  beginning at the end of the person’s last bonus period; and

                     (b)  ending 13 weeks after the time when the person’s membership of the scheme ceases to be non-accruing.

26  Claim where person has post-75 work period

             (1)  If a post-75 member of the pension bonus scheme has a post-75 work period, the lodgment period for a claim by the person for pension bonus is the period of 13 weeks beginning at the end of the period nominated in the claim as the person’s post-75 work period.

             (2)  For the purposes of this section, a post-75 member of the pension bonus scheme has a post-75 work period if all of the following requirements are satisfied:

                     (a)  the person’s claim for pension bonus nominates a particular period as the person’s post-75 work period;

                     (b)  the nominated period begins immediately after the end of the person’s last bonus period;

                     (c)  if it were assumed that the person had been an accruing member of the pension bonus scheme throughout each test period that is applicable to the person, the person would have passed the work test for each test period.

             (3)  For the purposes of subsection (2), the test period or test periods applicable to a person are worked out as follows:

                     (a)  identify the extended period, which is that part of the nominated period when the person was neither:

                              (i)  subject to a compensation preclusion period or a carer preclusion period; nor

                             (ii)  covered by a declaration under section 92Q of the 1991 Act;

                     (b)  if the extended period is 365 days or less—the extended period is the only test period;

                     (c)  if the extended period is longer than 365 days—each of the following periods is a test period:

                              (i)  the full-year period beginning at the start of the extended period;

                             (ii)  if 2 or more succeeding full-year periods are included in the extended period—each of those full-year periods;

                            (iii)  the period (if any) consisting of the remainder of the extended period.

             (4)  In addition to its effect apart from this subsection, section 93B of the 1991 Act also has the effect it would have if each reference in paragraph 93B(1)(a), (2)(a), (3)(a) or (4)(a) to an accruing member of the pension bonus scheme were a reference to a post-75 member of the scheme.

Subdivision FTime limit for claims for fares allowance

27  Time limit for claim

             (1)  Subject to this section, a claim for fares allowance must be lodged in the study year to which the claim relates or before 1 April next following the end of that year (the final date).

             (2)  A claim for fares allowance may be lodged on or after the final date if the Secretary is satisfied that:

                     (a)  the claimant took reasonable steps to lodge the claim, or have the claim lodged, before the final date; and

                     (b)  circumstances beyond the claimant’s control prevented the claim being lodged before the final date.

             (3)  A claim for fares allowance may be lodged on or after the final date if the Secretary is satisfied that:

                     (a)  circumstances beyond the claimant’s control prevented the claimant taking reasonable steps to lodge the claim, or have the claim lodged, before the final date; and

                     (b)  the claimant has sought to lodge the claim as soon as practicable after those circumstances ceased to exist.

Subdivision GAge requirement for certain claims

28  Claims for disability support pension

                   A person cannot make a claim for a disability support pension unless the person is under the pension age on the day on which the claim is lodged.

Subdivision HResidence requirements for claimants

29  General rule

             (1)  Subject to sections 30, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:

                     (a)  is an Australian resident; and

                     (b)  is in Australia.

             (2)  Subject to sections 30, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.

30  Residence requirements for claimants for special benefit

                   A claim for special benefit may only be made by a person who:

                     (a)  is in Australia; and

                     (b)  satisfies one of the following subparagraphs:

                              (i)  the person is an Australian resident;

                             (ii)  the person has a qualifying residence exemption for special benefit;

                            (iii)  the person holds a visa determined by the Minister to be a visa to which this subparagraph applies.

31  Exclusion of certain claims from requirements of section 29

             (2)  Section 29 does not apply to a claim for parenting payment if:

                     (a)  the claimant is an Australian resident; and

                     (b)  the claimant, while outside Australia, has been receiving an income support payment; and

                     (c)  the income support payment has been cancelled or has ceased to be payable; and

                     (d)  the claim is made within 13 weeks after the income support payment was cancelled or ceased to be payable, as the case may be.

             (3)  Section 29 does not apply to a claim for double orphan pension.

31A  Exclusion of certain claims by special category visa holders from section 29 residence requirement

                   Despite paragraph 29(1)(a), a person who is not an Australian resident may make a claim for a social security payment or a concession card if:

                     (a)  the person is a special category visa holder residing in Australia; and

                     (b)  in order to qualify for the payment or concession card concerned, the person is not required to be an Australian resident if the person is a special category visa holder residing in Australia.

32  Claims for sickness allowance

             (1)  This section only has effect in relation to a claim for sickness allowance.

             (2)  For the purposes of section 29, if:

                     (a)  a person is temporarily absent from Australia; and

                     (b)  the person is absent in order to seek medical treatment of a kind that is not available in Australia;

the person is taken to be in Australia:

                     (c)  if the period of absence does not exceed 13 weeks—during the whole of that period; or

                     (d)  if the period of absence exceeds 13 weeks—during the first 13 weeks of that period.

Subdivision IWithdrawal of claim

33  Right to withdraw

             (1)  A claimant for a social security payment or a concession card, or a person acting on behalf of such a claimant, may withdraw a claim that has not been determined.

             (2)  A claim that is withdrawn is taken not to have been made.

34  Manner of withdrawal

             (1)  A claim may be withdrawn orally or in writing or in any other manner approved by the Secretary.

             (2)  If:

                     (a)  a person claims both a pension bonus and an age pension; and

                     (b)  the claim for an age pension is withdrawn;

the claim for a pension bonus is taken to have been withdrawn.

             (3)  If:

                     (a)  a person claims both a pension bonus and an age pension; and

                     (b)  the claim for an age pension is rejected as a direct or indirect result of the operation of:

                              (i)  Division 2 of Part 3.12 of the 1991 Act; or

                             (ii)  Part 3.14 of that Act;

the claim for a pension bonus is taken to have been withdrawn.

Subdivision JSpecial provision for certain claims

35  Claims by persons in gaol etc.

             (1)  A person who is:

                     (a)  in gaol; or

                     (b)  undergoing psychiatric confinement because he or she has been charged with an offence;

may make a claim for a social security pension or benefit or for a crisis payment not earlier than 3 weeks before the person’s expected release day.

             (2)  A day is a person’s expected release day for the purpose of subsection (1) if there are reasonable grounds for believing that the person will be released from gaol or psychiatric confinement on that day.

35A  Claims for advance pharmaceutical allowance

             (1)  A person may only make a claim for advance pharmaceutical allowance if the claim is made in accordance with subsection (2), (3) or (4).

             (2)  A person may make a claim for advance pharmaceutical allowance to be paid in a calendar year if:

                     (a)  the person has received an instalment of a social security pension in relation to an instalment period that included 31 December in the previous calendar year; and

                     (b)  the claim is lodged within 14 days after the end of that instalment period.

             (3)  A person may make a claim for advance pharmaceutical allowance to be paid in a calendar year if:

                     (a)  the person claims a social security pension in that year; and

                     (b)  the claim for advance pharmaceutical allowance is lodged:

                              (i)  when the claim for the pension is lodged; or

                             (ii)  after the claim for the pension is lodged but before that claim is determined.

             (4)  A person may make a claim for advance pharmaceutical allowance to be paid in a calendar year if:

                     (a)  the person has been qualified for pharmaceutical allowance for a period (the qualification period) during the calendar year; and

                     (b)  the amount spent by the person during the qualification period on the purchase of pharmaceutical benefits is equal to or greater than the total amount that has been paid to the person in the calendar year by way of:

                              (i)  pharmaceutical allowance; and

                             (ii)  advance pharmaceutical allowance.


 

Division 2Determination of claim

36  Obligation of Secretary to determine claim

             (1)  Subject to subsection (2), the Secretary must, in accordance with the social security law, determine a claim for a social security payment or a concession card, either granting or rejecting the claim.

             (2)  If a person claims both a pension bonus and an age pension, the Secretary must not determine the claim for pension bonus until the claim for age pension has been granted.

37  Grant of claim

             (1)  Subject to section 40, the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that:

                     (a)  the claimant is qualified for the social security payment; and

                     (b)  the social security payment is payable.

          (1A)  The Secretary must determine that a claim for parenting payment is to be granted if the Secretary is satisfied that:

                     (a)  the claimant is qualified, or is expected to be qualified, for the payment; and

                     (b)  the payment would be payable apart from:

                              (i)  the application of a participation agreement breach non-payment period; or

                             (ii)  the application of a participation agreement breach rate reduction period where the rate reduction reduces the claimant’s rate of parenting payment to nil.

             (2)  The Secretary must determine that a claim for a newstart allowance is to be granted if the Secretary is satisfied that:

                     (a)  the claimant is qualified, or is expected to be qualified, for the allowance; and

                     (b)  the allowance would be payable apart from:

                              (i)  the application of a waiting period; or

                             (ii)  the application of an activity test non-payment period; or

                            (iii)  the application of an activity test breach rate reduction period where the activity test breach rate reduction reduces the rate of newstart allowance payable to the claimant to nil; or

                            (iv)  the application of an administrative breach rate reduction period where the administrative breach rate reduction reduces the rate of newstart allowance payable to the person to nil; or

                             (v)  the application of an income maintenance period where the rate of newstart allowance payable to the person is nil.

             (3)  The Secretary must determine that a claim for a social security payment to which this subsection applies is to be granted if the Secretary is satisfied that:

                     (a)  the person is qualified, or is expected to be qualified, for the payment; and

                     (b)  the payment would be payable if the person were not subject to a seasonal work preclusion period.

             (4)  Subsection (3) applies to the following social security payments:

                     (a)  mature age allowance under Part 2.12A;

                     (b)  mature age allowance under Part 2.12B;

                     (c)  newstart allowance;

                     (d)  parenting payment;

                     (e)  partner allowance;

                      (f)  widow allowance;

                     (g)  youth allowance.

             (5If:

                     (a)  a determination has been made under subsection (1) granting a claim for a newstart allowance to a person who was qualified for the allowance under subsection 593(1B) of the 1991 Act; and

                     (b)  the person ceases to be qualified for the allowance under subsection 593(1B) of the 1991 Act but becomes qualified for the allowance under subsection 593(1) of that Act within 14 days after the person ceased to be qualified under subsection 593(1B);

the Secretary may make a determination varying the first-mentioned determination to give effect to any change in the person’s start day.

             (6)  The Secretary must determine that a claim for youth allowance or austudy payment is to be granted if the Secretary is satisfied that:

                     (a)  the person is qualified, or is expected to be qualified, for the allowance or payment; and

                     (b)  the allowance or payment would be payable, apart from:

                              (i)  the application of a waiting period; or

                             (ii)  the application of an activity test non-payment period; or

                            (iii)  the application of an activity test breach rate reduction period where the activity test breach rate reduction reduces the rate of allowance or payment payable to the claimant to nil; or

                            (iv)  the application of an administrative breach rate reduction period where the administrative breach rate reduction reduces the rate of allowance or payment payable to the person to nil; or

                             (v)  the application of an income maintenance period where the rate of allowance or payment payable to the person is nil.

             (7)  The Secretary must determine that a claim made in accordance with section 35 for a social security pension or benefit or for a crisis payment is to be granted if the Secretary is satisfied that:

                     (a)  the claimant:

                              (i)  is in gaol; or

                             (ii)  is undergoing psychiatric confinement because he or she has been charged with an offence; and

                     (b)  the claimant is expected to be in gaol or undergoing psychiatric confinement for at least 14 days; and

                     (c)  there are reasonable grounds for believing that the claimant will be released from gaol or psychiatric confinement on or before the day that is the claimant’s expected release day for the purposes of subsection 35(1); and

                     (d)  either:

                              (i)  in the case of a claim for a social security pension or benefit, the claimant is qualified for the pension or benefit; or

                             (ii)  in any case, the claimant is expected to be qualified for the pension, benefit or payment immediately after the claimant is released from gaol or psychiatric confinement; and

                     (e)  the pension, benefit or payment is expected to be payable to the claimant immediately after the claimant is released from gaol or psychiatric confinement.

             (8)  The Secretary must make a determination granting a claim for a concession card if the Secretary is satisfied that the claimant is qualified for the card.

             (9)  A determination under subsection (8) granting a claim for a seniors health card:

                     (a)  must specify the period at the end of which the determination ceases to have effect; and

                     (b)  unless it has already been cancelled, ceases to have effect at the end of that period.

           (10)  A determination under subsection (8) granting a claim for a health care card under Subdivision B of Division 3 of Part 2A.1 of the 1991 Act:

                     (a)  must specify the period at the end of which the determination ceases to have effect; and

                     (b)  unless it has already been cancelled, ceases to have effect at the end of that period.

           (11)  The Minister may determine the periods that are to be specified in determinations for the purposes of subsections (9) and (10).

           (12)  A determination under subsection (11):

                     (a)  must be in writing; and

                     (b)  is a disallowable instrument.

37A  Duration of certain health care cards

             (1)  A seniors health card expires at the end of the period specified, for the purposes of subsection 37(9), in the determination granting the claim for the card.

             (2)  A health care card granted to a person qualified for the card under Subdivision B of Division 3 of Part 2A.1 of the 1991 Act expires at the end of the period specified, for the purposes of subsection 37(10), in the determination granting the claim for the card.

             (3)  A person to whom a concession card referred to in subsection (1) or (2) has been granted may make a claim for a further concession card before the first-mentioned card expires.

38  Refusal of claim for special employment advance

             (1)  Subject to subsection (2), the Secretary must refuse a claim for special employment advance if:

                     (a)  the claim is based on the effect of unreceived income on the claimant’s special employment advance qualifying entitlement; and

                     (b)  the Secretary is satisfied that the income will be received within 2 days after the claim is made.

             (2)  Subsection (1) does not apply if the Secretary considers that the claimant’s financial needs are such that the claim should be granted.

             (3)  In this section:

unreceived income has the same meaning as in subsection 1061EM(1) of the 1991 Act.

39  Deemed refusal of claim

             (1)  Subject to subsection (3), if the Secretary does not make a determination regarding a claim within the period of 13 weeks after the day on which the claim was made, the Secretary is taken to have made, at the end of that period, a determination rejecting the claim.

             (3)  If:

                     (a)  a person makes a claim for a social security payment that is a relevant social security payment for the purposes of subclause 4(1) of Schedule 2; and

                     (b)  the person is not, on the day on which the claim is made, qualified for the payment; and

                     (c)  assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

                     (d)  the person becomes so qualified within that period;

the claim is taken, for the purposes of subsection (1), to be made on the day on which the person becomes qualified.

             (4)  If the Secretary asks a person who has made a claim for a social security payment or a concession card or another person for information in relation to the claim, the period that:

                     (a)  begins on the day on which the Secretary asks for the information; and

                     (b)  ends on the day on which the information is given to the Secretary;

is not counted for the purpose of subsection (1).

             (5)  If:

                     (a)  a person makes a claim (the actual claim); and

                     (b)  apart from this subsection, the person would, by virtue of section 13 or 14, be taken to have made the claim on a particular day;

then, in spite of section 13 or 14, as the case may be, a reference in subsection (1) of this section to the day on which the claim was made is a reference to the day on which the actual claim was made.

40  Rejection of claim for failure to obtain foreign payment

             (1)  The Secretary may make a determination rejecting a claim for a social security payment if:

                     (a)  the claimant has been given a notice under subsection 66(2); and

                     (b)  the Secretary is not satisfied that the claimant has taken reasonable action to obtain a comparable foreign payment at the highest rate applicable to the claimant within the period specified in the notice.

             (2)  The Secretary may make a determination rejecting a claim for a social security payment if:

                     (a)  the claimant has been given a notice under subsection 66(3); and

                     (b)  the Secretary is not satisfied that the claimant’s partner has taken reasonable action to obtain a comparable foreign payment at the highest rate applicable to the partner within the period specified in the notice.


 

Division 3Commencement of social security payment

41  Commencement

             (1)  Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.

             (2)  Unless another provision of the social security law provides otherwise, a concession card takes effect on the person’s start day in relation to the card.

42  Start day

                   For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.


 

Division 4Payment of social security payment

43  Payment by instalments

             (1)  A social security periodic payment is to be paid:

                     (a)  in arrears; and

                     (b)  by instalments relating to such periods (not exceeding 14 days) as the Secretary determines.

             (2)  Subject to sections 52 and 53, instalments of a social security periodic payment are to be paid at such times as the Secretary determines.

             (3)  Subject to subsection (4), the amount that is to be paid to a person as an instalment of a social security periodic payment in relation to a period is the total of the amounts of the social security periodic payment (calculated by reference to the daily rate of payment applicable to each day) payable to the person for days in that period on which the social security periodic payment was payable to the person.

             (4)  If:

                     (a)  an amount (the added amount) of pharmaceutical allowance is added to a person’s maximum basic rate in working out the amount of an instalment of a social security payment; and

                     (b)  apart from this subsection, the amount of the instalment would be less than the person’s fortnightly PA rate;

the amount of the instalment is to be increased to the person’s fortnightly PA rate.

             (5)  For the purposes of subsection (4), a person’s fortnightly PA rate is worked out by dividing the added amount by 26.

             (6)  Each of the periods determined by the Secretary under subsection (1) is an instalment period in relation to the social security periodic payment.

44  Payment of instalments to person or nominee

             (1)  Subject to section 45, instalments of a person’s social security periodic payment are to be paid to that person.

             (2)  If, by virtue of a determination under subsection 46(2), a person’s special employment advance is to be paid by instalments, the instalments are to be paid to that person.

             (3)  This section has effect subject to Part 3A.

45  Payment of youth allowance—person under 18 and not independent

             (1)  Subject to subsection (2), instalments of youth allowance of a person who is under 18 years of age and is not independent are to be paid on behalf of the person:

                     (a)  if the person has only one living parent—to that parent; or

                     (b)  if the person has more than one living parent—to the parent nominated in writing by the person to the Secretary.

             (2)  The Secretary may direct that the whole or a part of the instalments of youth allowance of a person referred to in subsection (1) is to be paid to the person.

             (3)  If the Secretary gives a direction under subsection (2), the instalments are to be paid in accordance with the direction.

             (4)  This section has effect subject to Part 3A.

46  Payment of special employment advance

             (1)  Unless the Secretary makes a determination under subsection (2), a person’s special employment advance is to be paid in accordance with section 47.

             (2)  If the Secretary considers that it is appropriate for a person’s special employment advance to be paid by instalments, the Secretary may determine that the person’s special employment advance is to be so paid.

47  Payment of lump sum benefits

             (1)  In this section:

lump sum benefit means:

                     (a)  an advance payment under section 864A or Part 2.22 of the 1991 Act; or

                     (b)  crisis payment; or

                     (c)  disaster relief payment; or

                     (d)  education entry payment; or

                     (e)  employment entry payment; or

                      (f)  fares allowance; or

                     (g)  one-off payment to the aged; or

                     (h)  one-off payment to carers (carer allowance related); or

                    (ha)  one-off payment to carers (carer payment related); or

                    (hb)  2005 one-off payment to carers (carer payment related); or

                    (hc)  2005 one-off payment to carers (carer service pension related); or

                    (hd)  2005 one-off payment to carers (carer allowance related); or

                      (i)  pension bonus; or

                      (j)  special employment advance, except where the Secretary has made a determination under subsection 46(2).

             (2)  If a claim for crisis payment is granted because of subsection 37(7), the Secretary may pay an amount equal to the amount of the crisis payment to the claimant before the claimant is released from gaol or psychiatric confinement if the Secretary thinks it is necessary to do so in order to ensure that the claimant, on release, will not suffer severe financial hardship.

             (3)  If an amount is paid to a person under subsection (2), the amount is taken, after the person’s release from gaol or psychiatric confinement, to be a payment of crisis payment made in relation to the claim referred to in subsection (2).

             (4)  Subject to Part 3A, a person’s lump sum benefit is to be paid to the person.

47A  Payment of one-off payment to the aged

                   One-off payment to the aged is to be paid to a person on the date that is determined by the Secretary to be the earliest date on which it is reasonably practicable for the payment to be made to the person.

47B  Payment of one-off payment to carers

                   If an individual is entitled to a one-off payment to carers (carer allowance related) or a one-off payment to carers (carer payment related), the Secretary must pay the payment to the individual in a single lump sum:

                     (a)  on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be made; and

                     (b)  in such manner as the Secretary considers appropriate.

47C  Payment of 2005 one-off payments to carers

             (1)  If an individual is entitled to a payment of:

                     (a)  2005 one-off payment to carers (carer payment related); or

                     (b)  2005 one-off payment to carers (carer service pension related); or

                     (c)  2005 one-off payment to carers (carer allowance related);

the Secretary must pay the payment to the individual in a single lump sum.

             (2)  The lump sum must be paid:

                     (a)  on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be made; and

                     (b)  in such manner as the Secretary considers appropriate.

48  Payment of telephone allowance

             (1)  Telephone allowance is to be paid by instalments.

             (2)  An instalment of telephone allowance is to be paid to a person on each telephone allowance payday on which telephone allowance is payable to the person.

             (3)  The amount of an instalment of telephone allowance is worked out by dividing the amount of the annual rate of telephone allowance by 4.

             (4)  In this section:

telephone allowance payday means:

                     (a)  for a person who is qualified for telephone allowance otherwise than under subsection 1061Q(4A)—the first day on which an instalment of a social security periodic payment would normally be paid to the person on or after any of the following:

                              (i)  1 January;

                             (ii)  20 March;

                            (iii)  1 July;

                            (iv)  20 September; and

                     (b)  for a person who is qualified for telephone allowance under subsection 1061Q(4A)—any of the following:

                              (i)  1 January;

                             (ii)  20 March;

                            (iii)  1 July;

                            (iv)  20 September;

                            or the first working day after that day if that day is not a working day.

working day means a day other than:

                     (a)  a Saturday; or

                     (b)  a Sunday; or

                     (c)  a day that is a public holiday or bank holiday in Canberra or Sydney.

48A  Payment of utilities allowance

             (1)  Utilities allowance is to be paid by instalments.

             (2)  If utilities allowance is payable to a person in relation to a utilities allowance test day, then an instalment of the allowance is to be paid to the person on the person’s first payday on or after that test day.

             (3)  The amount of an instalment of utilities allowance is worked out by dividing the amount of the annual rate of utilities allowance by 2.

             (4)  In this section:

utilities allowance test day means:

                     (a)  20 March; and

                     (b)  20 September.

48B  Payment of seniors concession allowance

             (1)  Seniors concession allowance is to be paid by instalments.

             (2)  An instalment of seniors concession allowance is to be paid to a person as soon as is reasonably practicable on or after the seniors concession allowance test day in relation to which the allowance is payable to the person.

             (3)  The amount of an instalment of seniors concession allowance is worked out by dividing the amount of the annual rate of seniors concession allowance by 2.

             (4)  In this section:

seniors concession allowance test day means:

                     (a)  1 June; and

                     (b)  1 December.

49  Timing of payment of fares allowance

             (1)  Subject to subsection (2), fares allowance for a journey by a person is to be paid as a reimbursement after the journey is made.

             (2)  If the journey has not been made, the fares allowance for the journey is to be paid before the journey is made.

50  To whom fares allowance is to be paid

             (1)  Subject to subsection (4), if the person is or was receiving youth allowance at the time of the making of the journey, fares allowance is to be paid to the person to whom instalments of the youth allowance are or were being paid under section 44 or 45.

             (2)  Subject to subsection (4), if the person is or was receiving austudy payment at the time of the making of the journey, fares allowance is to be paid to the person to whom instalments of the austudy payment are or were being paid under section 44.

             (3)  Subject to subsection (4), if the person is or was receiving pensioner education supplement at the time of the making of the journey, fares allowance is to be paid to the person to whom instalments of the pensioner education supplement are or were being paid under section 44.

             (4)  If the fares allowance is to be paid as referred to in subsection 49(2), it is to be paid, on behalf of the person, to the commercial operator who provides the person’s means of travel.

             (5)  This section has effect subject to section 58.

51  Advance in case of severe financial hardship

             (1)  If:

                     (a)  the Secretary determines:

                              (i)  that a claim by a person who is in Australia for a social security benefit or pension is to be granted; or

                             (ii)  that a social security benefit or pension is payable to a person under section 85; and

                     (b)  the Secretary is satisfied that, if the person is required to wait until the end of:

                              (i)  the first instalment period in relation to the benefit or pension; or

                             (ii)  the first instalment period in relation to the benefit or pension after the resumption of payment of the benefit or pension;

                            for payment of an instalment, the person will suffer severe financial hardship;

the Secretary may determine that a specified amount is to be paid to the person in advance.

             (2)  If:

                     (a)  a claim for a social security pension or benefit is granted because of subsection 37(7); and

                     (b)  the Secretary makes a determination under subsection (1);

the amount payable by virtue of that determination may be paid before the claimant is released from gaol or psychiatric confinement if the Secretary thinks it is necessary to do so in order to ensure that the claimant, on release, will not suffer severe financial hardship.

             (3)  The operation of subsection (2) is not affected by section 1158, 1162 or 1162A of the 1991 Act.

             (4)  The amount paid under a determination under subsection (1) is not to exceed the amount that, in the opinion of the Secretary, would be the total of the amounts payable to the person for the first 14 days on which the benefit or pension is payable to the person.

             (5)  An amount paid to a person under subsection (1) is taken to be an advance payment of the instalment or instalments, or of that part of the instalment or instalments, that relate to the days referred to in subsection (4).

52  Payment of certain amounts outside Australia

             (1)  This section applies to the following social security payments:

                     (a)  age pension;

                     (b)  bereavement allowance;

                     (c)  carer payment;

                     (d)  disability support pension;

                     (e)  mature age allowance payable under Part 2.12A of the 1991 Act;

                      (f)  mature age partner allowance payable under Part 2.12A of the 1991 Act;

                     (g)  pension PP (single) to which clause 105A of Schedule 1A to the 1991 Act applies;

                     (h)  pensioner education supplement;

                      (i)  widow B pension;

                      (j)  wife pension;

                     (k)  special benefit.

             (2)  If a person who is receiving a social security payment to which this section applies is outside Australia, instalments of the payment are to be paid to the person at such times as the Secretary determines for the purposes of this section.

53  Payment of instalments where pension received under other legislation

             (1)  If:

                     (a)  an age pension or a disability support pension is payable to a person; and

                     (b)  the person is receiving a veteran’s disability pension; and

                     (c)  the Secretary has made a determination, for the purposes of this subsection, that instalments of age pension or disability support pension, as the case may be, are to be paid to the person on the days on which instalments of the veteran’s disability pension are paid to the person; and

                     (d)  the determination has not been revoked;

instalments of age pension or disability support pension are to be paid to the person in accordance with the determination.

             (2)  If:

                     (a)  an age pension or a disability support pension is payable to a person; and

                     (b)  the person’s partner is receiving:

                              (i)  an age pension and a veteran’s disability pension; or

                             (ii)  a disability support pension and a veteran’s disability pension; and

                     (c)  the Secretary has made a determination, for the purposes of this subsection, that instalments of age pension or disability support pension, as the case may be, are to be paid to the person on the days on which instalments of the veteran’s disability pension are paid to the person’s partner; and

                     (d)  the determination has not been revoked;

instalments of age pension or disability support pension are to be paid to the person in accordance with the determination.

             (3)  If:

                     (a)  a person is receiving a wife pension; and

                     (b)  the person’s partner is receiving:

                              (i)  an age pension and a veteran’s disability pension; or

                             (ii)  a disability support pension and a veteran’s disability pension; and

                     (c)  the Secretary has made a determination, for the purposes of this subsection, that instalments of wife pension are to be paid to the person on the days on which instalments of the veteran’s disability pension are paid to the person’s partner; and

                     (d)  the determination has not been revoked;

instalments of wife pension are to be paid to the person in accordance with the determination.

54  Rounding off instalments of social security payments

             (1)  In this section:

instalment means an instalment of a social security payment.

             (2)  If the amount of an instalment would be:

                     (a)  one or more whole dollars and a part of a cent; or

                     (b)  one or more whole dollars and cents and a part of a cent;

the amount is to be increased or decreased to the nearest whole cent.

             (3)  If the amount of an instalment would be:

                     (a)  one or more whole dollars and 0.5 cent; or

                     (b)  one or more whole dollars and cents and 0.5 cent;

the amount is to be increased by 0.5 cent.

             (4)  If, apart from this subsection, the amount of an instalment would be less than $1.00, the amount is to be increased to $1.00.

55  Payment into bank account etc.

             (1)  Subject to Part 3A, an amount (the relevant amount) that is to be paid to a person under section 44, 45, 47, 48, 48A, 48B or 50 is to be paid in the manner set out in this section.

             (2)  Subject to subsections (4) and (4A), the relevant amount is to be paid to the credit of a bank account nominated and maintained by the person.

             (3)  The account may be an account that is maintained by the person either alone or jointly or in common with another person.

             (4)  The Secretary may direct that the whole or a part of the relevant amount be paid to the person in a different way from that provided for by subsection (2). If the Secretary gives a direction, the relevant amount is to be paid in accordance with the direction.

          (4A)  Fares allowance is to be paid to a person as follows:

                     (a)  fares allowance is to be paid to the credit of the bank account to the credit of which payments of youth allowance, austudy payment or pensioner education supplement payable to the person are or were made;

                     (b)  if, because of a direction under subsection (4), youth allowance, austudy payment or pensioner education supplement is not paid to the credit of a bank account, fares allowance is to be paid in the same way as the youth allowance, austudy payment or pensioner education supplement, as the case may be.

             (5)  If, at the end of the period of 28 days starting on the day on which the Secretary requested the person to nominate an account for the purposes of subsection (2) (the 28 day period):

                     (a)  the person has not nominated an account for the purposes of subsection (2); and

                     (b)  the Secretary has not given, or has revoked, a direction under subsection (4) in relation to the payment of the relevant amount to the person;

the relevant amount ceases to be payable to the person.

             (6)  If the person nominates an account for the purposes of subsection (2) after the end of the 28 day period, the relevant amount again becomes payable to the person and is so payable:

                     (a)  if the nomination is made within 13 weeks after the end of the 28 day period—on and from the first day after the end of that period; or

                     (b)  if the nomination is not so made—on and from the day on which the nomination is made.

             (7)  Subsection (6) does not apply at a time when, because of the operation of another provision of the social security law, the relevant amount is not payable to the person.

56  Youth allowance—failure to nominate parent

             (1)  This section applies to a person if:

                     (a)  the person is under 18 years of age and is not independent; and

                     (b)  youth allowance has become payable to the person; and

                     (c)  the person has more than one living parent; and

                     (d)  at the end of the period of 28 days starting on the day on which youth allowance became payable to the person:

                              (i)  the person has not nominated a parent for the purposes of subsection 45(1); and

                             (ii)  the Secretary has not given a direction under subsection 45(2) in relation to payment of instalments of the person’s youth allowance.

             (2)  Youth allowance is not payable to a person while this section applies to the person.

             (3)  If a person to whom this section applies nominates a parent for the purposes of subsection 45(1), this section ceases to apply to the person.

57  Change of particular payday

                   If the Secretary is satisfied that an amount that would, apart from this section, be paid on a particular day cannot reasonably be paid on that day, the Secretary may direct that the amount be paid on an earlier day.

58  Payment of social security payment, other than pension bonus, after death

             (1)  If:

                     (a)  an amount representing a social security payment (other than pension bonus) is payable to a person; and

                     (b)  the person dies; and

                     (c)  another person applies to receive the amount; and

                     (d)  the application is made:

                              (i)  within 26 weeks after the death; or

                             (ii)  within such further period as is allowed by the Secretary in the special circumstances of the case;

the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.

             (2)  If the Secretary pays an amount of a social security payment under subsection (1), the Commonwealth has no further liability to any person in respect of that amount.

59  Payment of pension bonus after death

             (1)  This section sets out the only circumstances in which a pension bonus will be payable after the death of the person concerned.

             (2)  If:

                     (a)  a person claims a pension bonus; and

                     (b)  the person dies; and

                     (c)  at the time of the person’s death, the claim had been granted, but the person had not received the bonus;

the bonus is payable to the legal personal representative of the person.

             (3)  If:

                     (a)  a person claims a pension bonus; and

                     (b)  the person dies; and

                     (c)  at the time of the person’s death, the claim had not been determined;

then:

                     (d)  the Secretary must determine the claim after the person’s death as if the person had not died; and

                     (e)  if the claim is granted—the bonus is payable to the legal personal representative of the person.

             (4)  If:

                     (a)  under paragraph (3)(d), the Secretary is required to determine a claim for pension bonus after a person’s death; and

                     (b)  at the time of the person’s death, the person’s claim for age pension had not been determined;

then, for the purposes of the determination of the claim for pension bonus, the following provisions have effect:

                     (c)  the requirements of paragraph 92C(a) of the 1991 Act are taken to be satisfied if:

                              (i)  the person would have started to receive an age pension if he or she had not died; and

                             (ii)  that age pension would have been received otherwise than because of a scheduled international social security agreement;

                     (d)  Division 6 of Part 2.2A of the 1991 Act has effect as if:

                              (i)  a reference in that Division to a particular rate were a reference to the rate that would have been applicable to the person if the person had not died; and

                             (ii)  a reference in that Division to the date of grant of the age pension were a reference to the date on which the age pension would have been granted if the person had not died;

                     (e)  this Act has effect as if subsections 17(2) and 34(2) were omitted.

             (5)  If a pension bonus is paid under subsection (2) or (3), the Commonwealth has no further liability to any person in respect of that bonus.


 

Division 5Protection of social security payments

60  Protection of social security payment

             (1)  A social security payment is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.

             (2)  This section has effect subject to:

                     (a)  sections 61 and 238 of this Act; and

                     (b)  sections 1231 and 1234A of the 1991 Act.

61  Deduction at request of recipient

                   The Secretary may make deductions from instalments of a social security payment payable to a person if the person asks the Secretary:

                     (a)  to make the deductions; and

                     (b)  to pay the amounts deducted to the Commissioner of Taxation.

62  Effect of garnishee or attachment order

             (1)  If:

                     (a)  a person has an account with a financial institution; and

                     (b)  either or both of the following subparagraphs apply:

                              (i)  instalments of a social security payment payable to the person (whether on the person’s own behalf or not) are being paid to the credit of the account;

                             (ii)  an advance payment of a social security payment payable to the person (whether on the person’s own behalf or not) has been paid to the credit of the account; and

                     (c)  a court order in the nature of a garnishee order comes into force in respect of the account;

the court order does not apply to the saved amount (if any) in the account.

             (2)  The saved amount is worked out as follows:

Method statement

Step 1.   Work out the total amount payable to the person in respect of the social security payment that has been paid to the credit of the account during the 4 week period immediately before the court order came into force.

Step 2.   Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount.

             (3)  This section applies to an account whether it is maintained by a person:

                     (a)  alone; or

                     (b)  jointly with another person; or

                     (c)  in common with another person.


 

Division 6Requirement to provide information, undergo medical examination etc.

Subdivision AGeneral

63  Requirement to attend Department etc.

             (1)  This section applies to a person if:

                     (a)  either:

                              (i)  the person is receiving, or has made a claim for, a social security payment; or

                             (ii)  the person is the holder of, or has made a claim for, a concession card; and

                     (b)  the person is not a person to whom section 64 applies.

             (2)  If the Secretary is of the opinion that a person to whom this section applies, other than a person to whom subsection (3) applies, should:

                     (a)  attend an office of the Department; or

                     (b)  contact the Department; or

                     (c)  attend a particular place for a particular purpose; or

                     (d)  give information to the Secretary;

the Secretary may give the person written notice that he or she is required, within a specified time, to:

                     (e)  attend that office; or

                      (f)  contact the Department; or

                     (g)  attend that place for that purpose; or

                     (h)  give that information;

as the case may be.

             (3)  If the Secretary is of the opinion that a person to whom this subsection applies should:

                     (a)  attend an office of the Department; or

                     (b)  contact the Department; or

                     (c)  attend a particular place for a particular purpose; or

                     (d)  give information to the Secretary;

the Secretary may notify the person that he or she is required, within a specified time, to:

                     (e)  attend that office; or

                      (f)  contact the Department; or

                     (g)  attend that place for that purpose; or

                     (h)  give that information;

as the case may be.

          (3A)  Subsection (3) applies to a person:

                     (a)  who is receiving, or has made a claim for, newstart allowance; or

                     (b)  who is a nominated visa holder as defined by subsection 23(1) of the 1991 Act and who is receiving, or has made a claim for, special benefit.

             (4)  If:

                     (a)  a person is receiving, or has made a claim for, a social security payment; and

                     (b)  the Secretary gives the person a notice under subsection (2); and

                     (c)  the requirement of the notice is reasonable; and

                     (d)  the person does not comply with the requirement;

the following paragraphs have effect:

                     (e)  if the person is receiving a youth allowance and is neither:

                              (i)  subject to a requirement by the Secretary to participate in the PSP; nor

                             (ii)  a party to a youth allowance activity agreement under which the person is required to participate in the PSP;

                            the allowance is not payable and if, at a later time, a youth allowance becomes payable to the person, an administrative breach rate reduction period applies to the person;

                      (f)  in any other case, the payment that the person is receiving or has claimed is not payable.

             (5)  If:

                     (a)  the Secretary notifies a person under subsection (3) of a requirement; and

                     (b)  the requirement is reasonable; and

                     (c)  the person does not comply with the requirement;

then:

                     (d)  newstart allowance or special benefit is not payable to the person; and

                     (e)  an administrative breach rate reduction period applies to the person if:

                              (i)  the person meets the conditions in subsection (5A) at the time of the non-compliance and newstart allowance later becomes payable to the person; or

                             (ii)  special benefit later becomes payable to the person.

          (5A)  The conditions are that the person:

                     (a)  is receiving newstart allowance; and

                     (b)  is not subject to a requirement by the Secretary to participate in the PSP; and

                     (c)  is not a party to a Newstart Activity Agreement under which the person is required to participate in the PSP.

             (6)  If:

                     (a)  a person is the holder of, or has made a claim for, a concession card; and

                     (b)  the Secretary gives the person a notice under subsection (2); and

                     (c)  the requirement of the notice is reasonable; and

                     (d)  the person does not comply with the requirement;

the person ceases to be qualified, or is not qualified, as the case requires, for a concession card.

             (7)  The Secretary may give a person a notice under subsection (2) by sending the notice by prepaid post addressed to the person at the postal address of the person last known to the Secretary. This subsection does not prevent the Secretary from giving the person notice in any other way.

             (8)  The Secretary may notify a person for the purposes of subsection (3) by sending a written notification by prepaid post addressed to the person at the postal address of the person last known to the Secretary. This subsection does not prevent the Secretary from notifying the person in any other way.

             (9)  The Secretary may determine:

                     (a)  that a social security payment that was not payable because of paragraph (4)(f) or subsection (5) is payable to a person; or

                     (b)  that an administrative breach rate reduction period does not apply to a person under paragraph (4)(e) or subsection (5);

if the Secretary is satisfied that the person had a reasonable excuse for not complying with the requirement under subsection (2) or (3), as the case may be.

           (10)  The Secretary may determine that a person who, by virtue of subsection (6), has ceased to be, or is not, qualified for a concession card is qualified for such a card if the Secretary is satisfied that the person has a reasonable excuse for not complying with the requirement of the notice under subsection (2).

           (11)  A notice under subsection (2) or a notification under subsection (3) must inform the person to whom it is given of the effect of this section.

64  Requirement to undergo medical examination etc.

             (1)  This section applies to a person if:

                     (a)  the person has made a claim for a disability support pension; or

                     (b)  the person is receiving a disability support pension; or

                     (c)  the person has made a claim for sickness allowance; or

                     (d)  the person is receiving sickness allowance; or

                     (e)  the person has made a claim for a newstart allowance but is temporarily incapacitated for work because of sickness or the occurrence of an accident; or

                      (f)  the person is receiving a newstart allowance and is exempt from the activity test under Subdivision BA of Division 1 of Part 2.12 of the 1991 Act; or

                    (fa)  the person is receiving special benefit and:

                              (i)  is a person to whom the activity test under section 731A of the 1991 Act does not apply because the person would qualify for disability support pension under section 94 or 95 of that Act if the person were an Australian resident; or

                             (ii)  is exempt from the activity test under section 731A of the 1991 Act because of section 731K of that Act; or

                     (g)  the person has made a claim for youth allowance and:

                              (i)  is temporarily incapacitated for work; or

                             (ii)  does not have the capacity to undertake the course of education as part of which he or she is undertaking full-time study; or

                     (h)  the person is receiving a youth allowance and has a temporary incapacity exemption under section 542A of the 1991 Act; or

                      (i)  the person has made a claim for mobility allowance; or

                      (j)  the person is receiving mobility allowance.

             (2)  If:

                     (a)  this section applies to a person; and

                     (b)  the Secretary is of the opinion that the person should:

                              (i)  attend an office of the Department; or

                             (ii)  contact the Department; or

                            (iii)  attend a particular place for a particular purpose; or

                            (iv)  complete a questionnaire; or

                             (v)  undergo a medical, psychiatric or psychological examination; or

                            (vi)  give information to the Secretary;

the Secretary may give the person written notice that the person is required, within a specified time, to:

                     (c)  attend that office; or

                     (d)  contact the Department; or

                     (e)  attend that place for that purpose; or

                      (f)  complete that questionnaire; or

                     (g)  undergo that examination and provide to the Secretary the report, in the approved form, of the person who conducts the examination; or

                     (h)  give that information to the Secretary;

as the case may be.

             (3)  The Secretary may give a person notice for the purposes of subsection (2) by sending the notice by prepaid post addressed to the person at his or her postal address last known to the Secretary. This subsection does not prevent the Secretary from giving the person notice in any other way.

             (4)  If:

                     (a)  the Secretary gives a person a notice under subsection (2); and

                     (b)  the Secretary is satisfied that it is reasonable for this section to apply to the person; and

                     (c)  the person does not take reasonable steps to comply with the requirement of the notice;

the following paragraphs have effect:

                     (d)  if the person is a person referred to in paragraph (1)(a), a disability support pension is not payable to the person;

                     (e)  if the person is a person referred to in paragraph (1)(b), disability support pension ceases to be payable to the person;

                      (f)  if the person is a person referred to in paragraph (1)(c), sickness allowance is not payable to the person;

                     (g)  if the person is a person referred to in paragraph (1)(d), sickness allowance ceases to be payable to the person;

                     (h)  if the person is a person referred to in paragraph (1)(e), (f), (g) or (h):

                              (i)  newstart allowance or youth allowance, as the case may be, is not payable; and

                             (ii)  if at a later time, such an allowance becomes payable to the person, an administrative breach rate reduction period applies to the person; and

                            (iii)  in the case of a person referred to in paragraph (1)(f), the person ceases to be exempt from the activity test under Subdivision BA of Division 1 of Part 2.12 of the 1991 Act; and

                            (iv)  in the case of a person referred to in paragraph (1)(h), the person ceases to have a temporary incapacity exemption under section 542A of the 1991 Act;

                      (i)  if the person is a person referred to in paragraph (1)(i), mobility allowance is not payable to the person;

                      (j)  if the person is a person referred to in paragraph (1)(j), mobility allowance ceases to be payable to the person.

             (5)  A notice under subsection (2) must inform the person to whom it is given of the effect of this section.

65  Medical certificate in support of claim for sickness allowance

             (1)  Subject to subsection (3), a claim for sickness allowance must be supported by the certificate of a medical practitioner which states:

                     (a)  the medical practitioner’s diagnosis; and

                     (b)  the medical practitioner’s prognosis; and

                     (c)  that the person is incapacitated for work; and

                     (d)  the period for which the person is incapacitated for work.

             (2)  A certificate for the purpose of subsection (1) must be in accordance with a form approved by the Secretary.

             (3)  A person’s claim for sickness allowance need not be supported by a medical certificate if the person is claiming to be qualified for sickness allowance under section 667 of the 1991 Act.

             (4)  The Secretary may, in special circumstances, direct that subsection (1) or (2) does not apply in relation to a claim.

66  Notice to obtain foreign payment

             (1)  This section applies to the following social security payments:

                     (a)  age pension;

                     (b)  bereavement allowance;

                     (c)  carer payment:

                     (d)  disability support pension;

                     (e)  parenting payment;

                      (f)  special needs age pension;

                     (g)  special needs disability support pension;

                     (h)  special needs widow B pension;

                      (i)  special needs wife pension;

                      (j)  widow allowance;

                     (k)  widow B pension;

                      (l)  wife pension.

             (2)  If:

                     (a)  a person claims, or is receiving, a social security payment to which this section applies; and

                     (b)  the Secretary is satisfied that the person may be entitled to a comparable foreign payment from a foreign country if the person applied for the payment;

the Secretary may give the person a notice that requires the person to take reasonable action to obtain the payment at the highest rate applicable to the person.

             (3)  If:

                     (a)  a person claims, or is receiving, a social security payment to which this section applies; and

                     (b)  the Secretary is satisfied that the person’s partner may be entitled to a comparable foreign payment from a foreign country if the partner applied for the payment;

the Secretary may give the person a notice that requires the partner to take reasonable action to obtain the payment at the highest rate applicable to the partner.

             (4)  A notice under subsection (2) or (3):

                     (a)  must be given in writing; and

                     (b)  may be given personally or by post or in any manner approved by the Secretary; and

                     (c)  must specify the period within which the reasonable action is to be taken.

             (5)  The period specified under paragraph (4)(c) must not end earlier than 14 days after the day on which the notice is given.

Subdivision BRequirement to give information about change of circumstances etc.

67  Person who has made a claim

             (1)  Subsection (2) applies to a person if:

                     (a)  the person has made a claim for a social security payment; and

                     (b)  either:

                              (i)  the claim has been granted; or

                             (ii)  the claim has not been determined.

             (2)  The Secretary may give a person to whom this subsection applies a notice in writing that requires the person to do either or both of the following:

                     (a)  inform the Department if:

                              (i)  a specified event or change of circumstances occurs; or

                             (ii)  the person becomes aware that a specified event or change of circumstances is likely to occur;

                     (b)  give the Department a statement about a matter that might affect the payment to the person of the social security payment.

             (3)  Subsection (4) applies to a person if:

                     (a)  the person has made a claim for a concession card; and

                     (b)  either:

                              (i)  the claim has been granted; or

                             (ii)  the claim has not been determined.

             (4)  The Secretary may give a person to whom this subsection applies a notice in writing that requires the person to do either or both of the following:

                     (a)  inform the Department if:

                              (i)  a specified event or change of circumstances occurs; or

                             (ii)  the person becomes aware that a specified event or change of circumstances is likely to occur;

                     (b)  give the Department a statement about a matter that might affect the person’s qualification for the concession card.

             (5)  An event or change of circumstances is not to be specified in a notice under this section unless the occurrence of the event or change of circumstances might affect the payment of the social security payment or the person’s qualification for the concession card, as the case requires.

68  Person receiving social security payment or holding concession card

             (1)  Subsection (2) applies to a person to whom a social security payment (other than utilities allowance or seniors concession allowance) is being paid.

             (2)  The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:

                     (a)  inform the Department if:

                              (i)  a specified event or change of circumstances occurs; or

                             (ii)  the person becomes aware that a specified event or change of circumstances is likely to occur;

                     (b)  give the Department one or more statements about a matter that might affect the payment to the person of the social security payment.

             (3)  Subsection (4) applies to a person who is the holder of a concession card.

             (4)  The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:

                     (a)  inform the Department if:

                              (i)  a specified event or change of circumstances occurs; or

                             (ii)  the person becomes aware that a specified event or change of circumstances is likely to occur;

                     (b)  give the Department a statement about a matter that might affect the person’s qualification for the concession card.

             (5)  An event or change of circumstances is not to be specified in a notice under this section unless the occurrence of the event or change of circumstances might affect the payment of the social security payment or the person’s qualification for the concession card, as the case requires.

69  Person who has received a social security payment or who has held a concession card

             (1)  Subsection (2) applies to a person who is not receiving a social security payment but to whom a social security payment (other than utilities allowance or seniors concession allowance) has at any time been paid.

             (2)  The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:

                     (a)  inform the Department whether a specified event or change of circumstances has occurred;

                     (b)  give the Department a statement about a matter that might have affected the payment to the person of the social security payment.

             (3)  Subsection (4) applies to a person who is not the holder of a concession card but has at any time held such a card.

             (4)  The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:

                     (a)  inform the Department whether a specified event or change of circumstances has occurred;

                     (b)  give the Department a statement about a matter that might have affected the person’s qualification for the concession card.

             (5)  An event or change of circumstances is not to be specified in a notice under this section unless the occurrence of the event or change of circumstances might have affected the payment of the social security payment or the person’s qualification for the concession card, as the case requires.

             (6)  A person is not required to comply with a notice under this section if the notice requires the person to give information or a statement about an event or change of circumstances that occurred, or a matter that arose, more than 13 weeks before the giving of the notice.

70  Care receiver in respect of whom carer payment being made

                   If a person is being paid a carer payment because he or she is providing constant care for a care receiver (other than one to whom subsection 198(7) of the 1991 Act applies) or care receivers, the Secretary may give a notice to:

                     (a)  any care receiver who is 16 or more; or

                     (b)  a parent of any care receiver who is under 16;

that requires the care receiver or parent, as the case may be, to inform the Department if:

                     (c)  a specified event or change of circumstances occurs; or

                     (d)  he or she becomes aware that a specified event or change of circumstances is likely to occur.

72  Provisions relating to notice

             (1)  A notice under this Subdivision:

                     (a)  must be given in writing; and

                     (b)  may be given personally or by post or in any other manner approved by the Secretary; and

                     (c)  must specify how the person is to give the information or statement to the Department; and

                     (d)  must specify:

                              (i)  in the case of a notice under section 68 that requires the giving of more than one statement, each relating to the payment of the social security payment in respect of a period—the date by which the person is to give each statement to the Department; or

                             (ii)  in any other case—the period within which the person is to give the information or statement to the Department; and

                     (e)  must specify that the notice is an information notice given under the social security law.

             (2)  A notice under this Subdivision is not invalid merely because it fails to comply with paragraph (1)(c) or (e).

          (2A)  A date specified for the purposes of subparagraph (1)(d)(i) must be no earlier than 7 days after:

                              (i)  the day on which the notice under section 68 is given; or

                             (ii)  the day on which the period specified in the notice in relation to that first mentioned date begins;

whichever is the later.

             (3)  Subject to subsections (4), (6) and (7), the period specified for the purpose of subparagraph (1)(d)(ii) must:

                     (a)  in the case of a notice under section 67, 68 or 69 that requires the giving of information about an event or change of circumstances consisting of the receipt by the person of a compensation payment—be the period of 7 days after the day on which the person becomes aware that he or she has received, or is to receive, a compensation payment; or

                     (b)  in the case of a notice under section 67, 68 or 69 that requires the giving of any other information, or a notice under section 70—be the period of 14 days after:

                              (i)  the day on which the event or change of circumstances occurs; or

                             (ii)  the day on which the person becomes aware that the event or change of circumstances is likely to occur;

                            as the case may be; or

                     (c)  in the case of a notice under section 67 or 68 that requires the giving of a statement that relates to the payment of the social security payment in respect of a period specified in the notice—end not earlier than 7 days after the day on which the notice is given; or

                     (d)  in the case of a notice under section 67, 68 or 69 that requires the giving of a statement, not being a notice to which paragraph (c) applies—end not earlier than 14 days after the day on which the notice is given;

             (4)  If the Secretary is satisfied that there are special circumstances related to a person who is to be given a notice under this Subdivision that requires the giving of information about an event or change of circumstances, the period to be specified for the purpose of subparagraph (1)(d)(ii) is such period as the Secretary directs in writing, being a period that ends not less than 15 days, and not more than 28 days, after:

                     (a)  in the case of a notice under section 67 or 68:

                              (i)  the day on which the event or change of circumstances occurs; or

                             (ii)  the day on which the person becomes aware that the event or change of circumstances is likely to occur; or

                     (b)  in the case of a notice under section 69—the day on which the notice is given.

             (6)  If a notice under section 67 or 68 specifies an event consisting of the death of a person, the period to be specified under subparagraph (1)(d)(ii) is a period of 28 days after the day on which the event occurs.

             (7)  To the extent that a notice under section 67 or 68 requires a person to inform the Department of any proposal by the person to leave Australia, subsection (3) does not apply to the notice.

             (8)  For the purposes of any provision of this Act, other than section 74 or a provision of Part 6, a person is taken to have failed to comply with a notice under this Subdivision if, in response to the notice:

                     (a)  the person gives information or a statement; and

                     (b)  the information or statement is false or misleading; and

                     (c)  the person is reckless as to whether the information or statement is false or misleading.

             (9)  Nothing in this section prevents the giving of more than one notice under this Subdivision to the same person in relation to:

                     (a)  a claim by the person for the same social security payment or concession card; or

                     (b)  the receipt by the person of the same social security payment; or

                     (c)  the holding by the person of the same concession card.

73  Application of notice provisions

                   Sections 67 to 72 extend to:

                     (a)  acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

                     (b)  all persons irrespective of their nationality or citizenship.

74  Offence—failure to comply with notice

             (1)  A person must not refuse or fail to comply with a notice under section 67, 68, 69 or 70.

Penalty:  Imprisonment for 6 months.

             (2)  Subsection (1) applies only to the extent to which the person is capable of complying with the notice.

             (3)  Subsection (1) does not apply if the person has a reasonable excuse.

             (4)  Subsection (1) is an offence of strict liability.

Subdivision CProvision of tax file numbers

75  Secretary’s power to request tax file numbers

             (1)  This section applies to a person in Australia who:

                     (a)  has made a claim for a social security payment; or

                     (b)  is receiving a social security payment (other than utilities allowance or seniors concession allowance).

             (2)  The Secretary may request, but not compel, a person to whom this section applies:

                     (a)  if the person has a tax file number—to give the Secretary a written statement of the person’s tax file number; or

                     (b)  if the person does not have a tax file number:

                              (i)  to apply to the Commissioner of Taxation for a tax file number; and

                             (ii)  to give the Secretary a written statement of the person’s tax file number after the Commissioner of Taxation has issued it.

             (3)  If:

                     (a)  this section applies to a person; and

                     (b)  the person is a member of a couple; and

                     (c)  the person’s partner is in Australia;

the Secretary may request, but not compel, the person to give the Secretary a written statement of the tax file number of the person’s partner.

             (4)  If:

                     (a)  this section applies to a person (the recipient) because the person is receiving a social security payment; and

                     (b)  the income of a person (other than the recipient) is required to be taken into account for the purpose of working out the rate of the recipient’s social security payment; and

                     (c)  the person referred to in paragraph (b) is in Australia;

the Secretary may request, but not compel, the recipient to give the Secretary a written statement of the tax file number or numbers of each person who is a person referred to in paragraph (b).

76  Effect of failure by person to satisfy request for person’s tax file number

             (1)  If the Secretary makes a request under subsection 75(2) of a person who has made a claim for, or is receiving, a social security payment, the social security payment is not payable to the person unless, within 28 days after the request is made:

                     (a)  the person satisfies the request; or

                     (b)  the person satisfies subsection (2) or (3) of this section; or

                     (c)  the Secretary exempts the person from the need to satisfy the request.

             (2)  A person satisfies this subsection if:

                     (a)  the person has given the Secretary a TFN declaration; and

                     (b)  the declaration states that the person:

                              (i)  has a tax file number but does not know what it is; and

                             (ii)  has asked the Commissioner of Taxation to inform the person of the person’s tax file number; and

                     (c)  the person has given the Secretary a document that authorises the Commissioner of Taxation to tell the Secretary:

                              (i)  whether the person has a tax file number; and

                             (ii)  if the person has a tax file number—that number; and

                     (d)  the Commissioner of Taxation has not told the Secretary that the person has no tax file number.

             (3)  A person satisfies this subsection if:

                     (a)  the person has given the Secretary a TFN declaration; and

                     (b)  the declaration states that an application by the person for a tax file number is pending; and

                     (c)  the person has given the Secretary a document that authorises the Commissioner of Taxation to tell the Secretary:

                              (i)  if a tax file number is issued to the person—that number; or

                             (ii)  if the application is refused—that the application has been refused; or

                            (iii)  if the application is withdrawn—that the application has been withdrawn; and

                     (d)  the Commissioner has not told the Secretary that the person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number.

77  Effect of failure by person to satisfy request for partner’s or related person’s tax file number

             (1)  If the Secretary makes a request under subsection 75(3) of a person who has made a claim for, or is receiving, a social security payment, the social security payment is not payable to the person unless, within 28 days after the request is made:

                     (a)  the person satisfies the request; or

                     (b)  the person satisfies subsection (3) or (4) of this section; or

                     (c)  the Secretary exempts the person from the need to satisfy the request.

             (2)  If the Secretary makes a request under subsection 75(4) of a person who is receiving a social security payment, the social security payment is not payable to the person unless, within 28 days after the request is made:

                     (a)  the person satisfies the request; or

                     (b)  the person satisfies subsection (3) or (4) of this section; or

                     (c)  the Secretary exempts the person from the need to satisfy the request.

             (3)  A person satisfies this subsection if:

                     (a)  the person has given the Secretary a declaration by the related person in accordance with a form approved by the Secretary; and

                     (b)  the declaration states that the related person:

                              (i)  has a tax file number but does not know what it is; and

                             (ii)  has asked the Commissioner of Taxation to inform the related person of his or her tax file number; and

                     (c)  the person has given the Secretary a document in which the related person authorises the Commissioner of Taxation to tell the Secretary:

                              (i)  whether the related person has a tax file number; and

                             (ii)  if the related person has a tax file number—that number; and

                     (d)  the Commissioner of Taxation has not told the Secretary that the related person has no tax file number.

             (4)  A person satisfies this subsection if:

                     (a)  the person has given the Secretary a declaration by the related person in accordance with a form approved by the Secretary; and

                     (b)  the declaration states that an application by the related person for a tax file number is pending; and

                     (c)  the person has given the Secretary a document in which the related person authorises the Commissioner of Taxation to tell the Secretary:

                              (i)  if a tax file number is issued to the related person—that number; or

                             (ii)  if the application is refused—that the application has been refused; or

                            (iii)  if the application is withdrawn—that the application has been withdrawn; and

                     (d)  the Commissioner of Taxation has not told the Secretary that an application by the related person for a tax file number has been refused or withdrawn.

             (5)  The Secretary may exempt a person from compliance with a request for a statement of a related person’s tax file number if the Secretary is satisfied that:

                     (a)  the person does not know the related person’s tax file number; and

                     (b)  the person can obtain none of the following from the related person:

                              (i)  the related person’s tax file number;

                             (ii)  a statement of the related person’s tax file number;

                            (iii)  a declaration by the related person under paragraph (3)(a) or (4)(a).

             (6)  In this section:

related person means:

                     (a)  in relation to a person of whom a request has been made under subsection 75(3)—the person’s partner; or

                     (b)  in relation to a person of whom a request has been made under subsection 75(4)—a person who is a person referred to in paragraph 75(4)(b).


 

Division 7Various determinations

Subdivision AProvisions relating to social security payments

78A  When this Subdivision does not apply

                   This Subdivision does not apply in relation to utilities allowance and seniors concession allowance.

78  Rate increase determination

                   If the Secretary is satisfied that the rate at which a social security payment is being, or has been, paid is less than the rate provided for by the social security law, the Secretary must:

                     (a)  determine that the rate is to be increased to the rate provided for by the social security law; and

                     (b)  specify the last-mentioned rate in the determination.

79  Rate reduction determination

             (1)  If the Secretary is satisfied that the rate at which a social security payment is being, or has been, paid is more than the rate provided for by the social security law, the Secretary is to:

                     (a)  determine that the rate is to be reduced to the rate provided for by the social security law; and

                     (b)  specify the last-mentioned rate in the determination.

             (2)  Subsection (1) does not authorise the Secretary to make a determination if:

                     (a)  the rate at which a social security payment is payable to a person is reduced by the operation of another provision of the social security law; and

                     (b)  the determination would take effect at or after the time at which the reduction referred to in paragraph (a) would take effect.

80  Cancellation or suspension determination

             (1)  If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

                     (a)  who is not, or was not, qualified for the payment; or

                     (b)  to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.

             (2)  Subsection (1) does not authorise the Secretary to make a determination if:

                     (a)  the payment of a social security payment to a person has been cancelled or suspended by the operation of another provision of the social security law; and

                     (b)  the determination would take effect at or after the time at which the cancellation or suspension referred to in paragraph (a) would take effect.

             (3)  However, subsection (1) authorises the Secretary to make a determination that:

                     (a)  cancels a social security payment that has been suspended under subsection 81(3); and

                     (b)  takes effect at or after the time the suspension took effect.

81  Cancellation or suspension for non-compliance with certain notices

             (1)  If:

                     (a)  a person who is receiving a social security payment (other than a newstart allowance) has been given:

                              (i)  a notice under section 67 or 68 that requires the person to give the Department a statement; or

                             (ii)  a notice embodying a requirement under Division 1 of Part 5; and

                     (b)  the person does not comply with the requirement of the notice;

the Secretary may determine that the payment is to be cancelled or suspended.

             (2)  If:

                     (a)  a person and his or her partner (the partner) are each receiving a social security payment; and

                     (b)  the partner has been given:

                              (i)  a notice under section 67 or 68 that requires the partner to give the Department a statement; or

                             (ii)  a notice embodying a requirement under Division 1 of Part 5; and

                     (c)  the notice relates to matters that might also affect the payment of the person’s social security payment; and

                     (d)  the partner does not comply with the requirement of the notice;

the Secretary may determine that the person’s payment is to be cancelled or suspended.

             (3)  If:

                     (a)  a person who is receiving a social security payment has been given a notice under section 67 or 68 that requires the person to inform the Department of a proposal by the person to leave Australia; and

                     (b)  the person does not comply with the requirement; and

                     (c)  the person leaves Australia; and

                     (d)  the person’s portability period (see section 1217 of the 1991 Act) for the payment has not ended;

the Secretary may determine that the payment is to be cancelled or suspended.

Note:          Subsection (3) lets the Secretary make one determination suspending the payment and later make another determination cancelling the payment. See subsection 33(1) of the Acts Interpretation Act 1901.

81A  Rate reduction determination for non-compliance with notice relating to rent assistance

             (1)  Without limiting section 81, if:

                     (a)  an amount of rent assistance is being added to a person’s maximum basic rate of social security payment; and

                     (b)  the person has been given:

                              (i)  a notice under section 67 or 68 that requires the person to give the Department a statement; or

                             (ii)  a notice embodying a requirement under Division 1 of Part 5; and

                     (c)  any statement, information or document required by the notice relates to:

                              (i)  whether the person qualifies for rent assistance; or

                             (ii)  the amount of the person’s rent assistance; and

                     (d)  the person does not comply with the requirement of the notice;

the Secretary may determine that the person’s rate of social security payment is to be reduced by not adding the amount of rent assistance to the person’s maximum basic rate.

             (2)  The determination must also specify the new rate of social security payment.

             (3)  Subsection (1) does not authorise the Secretary to make a determination if:

                     (a)  another provision of the social security law provides that the rate at which the social security payment is payable to the person is to be reduced by not adding the amount of rent assistance to the person’s maximum basic rate; and

                     (b)  the determination would take effect at or after the time at which the reduction referred to in paragraph (a) would take effect.

82  Cancellation or suspension for failure to take action to obtain foreign payment

             (1)  If:

                     (a)  a person who is receiving a social security payment has been given a notice under subsection 66(2); and

                     (b)  the Secretary is satisfied that the person has not complied with the requirement of the notice;

the Secretary may determine that the social security payment is to be cancelled or suspended.

             (2)  If:

                     (a)  a person who is receiving a social security payment has been given a notice under subsection 66(3); and

                     (b)  the Secretary is satisfied that the person’s partner has not complied with the requirement of the notice;

the Secretary may determine that the social security payment is to be cancelled or suspended.

83  Changes to payments by computer

             (1)  If:

                     (a)  payment of a social security payment is based upon data in a computer; and

                     (b)  the rate of the payment is increased or reduced, or the payment is cancelled or suspended, because of the operation of a computer program used under the control of the Secretary; and

                     (c)  the program causes the change for a reason for which the Secretary could make the change by determination;

the change is taken to have been made by the Secretary by determination for that reason.

             (2)  A determination that is taken, by virtue of subsection (1), to have been made is taken to have been made on the day on which the computer program caused the change to be made.

84  Automatic transfer by computer

             (1)  If:

                     (a)  payment of a social security payment to a person is based upon data in a computer; and

                     (b)  because of the operation of a computer program used under the control of the Secretary, a social security payment of a different kind becomes payable to the person;

the Secretary is taken to have made a determination:

                     (c)  that the payment referred to in paragraph (b) is to be payable to the person; and

                     (d)  that the payment referred to in paragraph (a) is to cease to be payable to the person immediately before the day on which the payment referred to in paragraph (b) is to become payable to the person.

             (2)  A determination that is taken, by virtue of subsection (1), to have been made is taken to have been made on the day on which the payment referred to in paragraph (1)(b) became payable because of the operation of the computer program.

85  Resumption of payment after cancellation or suspension

             (1)  If:

                     (a)  a person’s social security payment is cancelled by force of section 93 or 94 or the Secretary cancels or suspends a person’s social security payment under section 80, 81 or 82; and

                     (b)  the Secretary reconsiders the decision; and

                     (c)  as a result of the reconsideration, the Secretary is satisfied that, because of the decision:

                              (i)  the person did not receive a social security payment that was payable to the person; or

                             (ii)  the person is not receiving a social security payment that is payable to the person;

the Secretary is to determine that the social security payment was or is payable to the person, as the case requires.

             (2)  The reconsideration referred to in paragraph (1)(b) may be a reconsideration on an application under section 129 or a reconsideration on the Secretary’s own initiative.

85A  Rate increase determination following rate reduction for non-compliance with notice relating to rent assistance

             (1)  If:

                     (a)  the Secretary reduces a person’s rate of social security payment under section 81A by not adding an amount of rent assistance to the person’s maximum basic rate; and

                     (b)  the Secretary reconsiders the decision; and

                     (c)  as a result of the reconsideration, the Secretary is satisfied that, because of the decision, the rate at which social security payment is being, or has been, paid is less than the rate provided for by the social security law;

the Secretary must determine that the rate is to be increased to the rate provided for by the social security law.

             (2)  The determination must also specify the new rate of social security payment.

             (3)  The reconsideration referred to in paragraph (1)(b) may be a reconsideration on an application under section 129 or a reconsideration on the Secretary’s own initiative.

Subdivision BProvisions relating to concession cards

86  Cancellation—person not qualified

             (1)  If the Secretary is satisfied that a person to whom a concession card has been granted is not qualified for the card, the Secretary is to determine that the card is to be cancelled.

             (2)  Subsection (1) does not authorise the Secretary to make a determination if:

                     (a)  the card has been cancelled by the operation of another provision of the social security law; and

                     (b)  the determination would take effect at or after the time at which the cancellation referred to in paragraph (a) would take effect.

87  Cancellation—non-compliance with certain notices

                   If:

                     (a)  a person who is the holder of a concession card has been given:

                              (i)  a notice under section 68 that requires the person to give the Department a statement; or

                             (ii)  a notice embodying a requirement under Division 1 of Part 5; and

                     (b)  the person does not comply with the requirement of the notice;

the Secretary may determine that the person is to cease to be qualified for the card.

88  Changes to qualification by computer

                   If:

                     (a)  a person is qualified for a concession card; and

                     (b)  the person ceases to be qualified for the card because of the operation of a computer program used under the control of the Secretary; and

                     (c)  the program causes the change for a reason for which the Secretary could make the change by determination under section 87;

the change is taken to have been made by the Secretary by a determination under section 87 made for that reason.

89  Resumption of qualification

             (1)  If:

                     (a)  the Secretary makes a determination under section 87 that a person is to cease to be qualified for a concession card; and

                     (b)  the Secretary reconsiders the decision; and

                     (c)  as a result of the reconsideration, the Secretary is satisfied that, because of the decision, the person was deprived of the concession card when he or she was qualified for the card;

the Secretary is to determine that the person is qualified for the card.

             (2)  The reconsideration referred to in paragraph (1)(b) may be a reconsideration on an application under section 129 or a reconsideration without any such application having been made.


 

Division 8Automatic cancellations and variations

Subdivision ASocial security payments

90A  When this Subdivision does not apply

                   This Subdivision does not apply in relation to utilities allowance and seniors concession allowance.

90  Automatic cancellation—transfer to new payment type

             (1)  If:

                     (a)  a person is receiving a social security pension or benefit (the old payment); and

                     (b)  either:

                              (i)  a different kind of social security pension or benefit (the new pension or benefit) becomes payable to the person; or

                             (ii)  a service pension or income support supplement becomes payable to the person;

the old payment is cancelled, by force of this section, immediately before the day on which the new pension or benefit or the service pension, as the case may be, becomes payable to the person.

             (2)  In this section:

social security benefit does not include parenting payment.

91  Automatic cancellation of parenting payment on transfer to new payment type—member of couple

             (1)  If:

                     (a)  a person who is a member of a couple is receiving parenting payment; and

                     (b)  a social security benefit (other than benefit (PP) partnered) becomes payable to the person;

parenting payment is cancelled, by force of this section, immediately before the day that is the person’s start day in relation to the benefit referred to in paragraph (b).

             (2)  If:

                     (a)  a person who is a member of a couple is receiving parenting payment; and

                     (b)  as a result of a social security pension, service pension or income support supplement becoming payable to the person, the rate at which parenting payment is payable to the person becomes nil;

parenting payment is cancelled by force of this section immediately before the day on which the social security pension, the service pension or the income support supplement, as the case may be, becomes payable to the person.

93  Automatic cancellation—recipient complying with subsection 68(2) notice

             (1)  Subject to subsection (2), if:

                     (a)  a person who is receiving a social security payment is given a notice under subsection 68(2); and

                     (b)  the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

                     (c)  the event or change of circumstances occurs; and

                     (d)  the person informs the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

                     (e)  because of the occurrence of the event or change of circumstances:

                              (i)  the person ceases to be qualified for the social security payment; or

                             (ii)  the payment would, but for this section, cease to be payable to the person; and

                      (f)  the social security payment is not cancelled before the end of the instalment period for the person that is current when the event or change of circumstances occurs;

the following paragraphs have effect:

                     (g)  if the social security payment is cancelled during the instalment period (the first period) following the instalment period in which the event or change of circumstances occurs, the payment is payable to the person until the end of the instalment period in which the event or change occurs, and is then cancelled by force of this subsection;

                     (h)  if the payment is not cancelled during the first period, the payment is payable to the person until the end of the notification period, and is then cancelled by force of this subsection.

             (2)  If:

                     (a)  a person who is receiving a social security payment is given a notice under subsection 68(2); and

                     (b)  the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

                     (c)  the event or change of circumstances occurs; and

                     (d)  the person informs the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

                     (e)  because of the event or change of circumstances, the person’s working credit balance or student income bank balance is reduced to nil in an instalment period (the nil instalment period) of the person that is the same as, or later than, the instalment period in which the event or change of circumstances occurs (the event instalment period); and

                      (f)  either because of the reduction of the balance to nil or because of the balance having already been reduced to nil—the social security payment would, but for this subsection, cease to be payable to the person; and

                     (g)  the social security payment is not cancelled before the end of the nil instalment period;

the social security payment continues to be payable to the person until a day determined in accordance with subsection (3) and is then cancelled by force of this subsection.

             (3)  For the purposes of subsection (2), the day until which the social security payment continues to be payable to the person is:

                     (a)  if the cancellation is attributable to the reduction of the balance referred to in paragraph (2)(e) to nil and the payment is so cancelled during the instalment period (the next instalment period) following the nil instalment period—the later of:

                              (i)  the day before the day on which the balance was reduced to nil; or

                             (ii)  the end of the event instalment period; and

                     (b)  if the cancellation is attributable to the balance having already been reduced to nil and the payment is so cancelled during the next instalment period—the later of:

                              (i)  the day before the first day on which the opening balance was nil; or

                             (ii)  the end of the event instalment period; and

                     (c)  if the cancellation is attributable to the reduction of the balance to nil but the payment is not so cancelled during the next instalment period—the later of:

                              (i)  the day before the day on which the balance was reduced to nil; or

                             (ii)  the end of the notification period; and

                     (d)  if the cancellation is attributable to the balance having already been reduced to nil but the payment is not so cancelled during the next instalment period—the later of:

                              (i)  the day before the first day on which the opening balance was nil; or

                             (ii)  the end of the notification period.

94  Automatic cancellation—recipient not complying with subsection 68(2) notice

             (1)  Subject to subsection (2), if:

                     (a)  a person who is receiving a social security payment is given a notice under subsection 68(2); and

                     (b)  the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

                     (c)  the event or change of circumstances occurs; and

                     (d)  the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

                     (e)  because of the occurrence of the event or change of circumstances:

                              (i)  the person ceases to be qualified for the social security payment; or

                             (ii)  the social security payment ceases to be payable to the person;

the social security payment is cancelled, by force of this subsection, on the day on which the event or change of circumstances occurs.

             (2)  If:

                     (a)  a person who is receiving a social security payment is given a notice under subsection 68(2); and

                     (b)  the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

                     (c)  the event or change of circumstance occurs; and

                     (d)  the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

                     (e)  because of the event or change of circumstances, the person’s working credit balance or student income bank balance is reduced to nil in an instalment period of the person that is the same as, or later than, the instalment period in which the event or change of circumstances occurs; and

                      (f)  either because of the reduction of the balance to nil or because of the balance having already been reduced to nil—the social security payment ceases to be payable to the person;

the social security payment is cancelled, by force of this subsection, on:

                     (g)  if the cancellation is attributable to the reduction of the balance to nil—the day on which the balance was so reduced; and

                     (h)  if the cancellation is attributable to the balance having already been reduced to nil—the first day on which the opening balance was nil.

95  Automatic cancellation—failure to provide statement under subsection 68(2)

             (1)  If:

                     (a)  a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and

                     (b)  the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and

                     (c)  the person does not comply with the notice so far as it relates to a particular period;

then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.

             (2)  If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person on and from a day specified in the determination.

             (3)  The day specified under subsection (2) may be before or after the making of the determination.

96  Disability support pension—suspension instead of cancellation in some cases

             (1)  If:

                     (a)  a person ceases to be qualified for disability support pension because the person obtains paid work that is for at least 30 hours per week; and

                     (b)  the person has, within the notification period referred to in section 93, informed the Secretary that the person has obtained that work;

the Secretary may determine:

                     (c)  that section 93 does not apply to the person’s disability support pension; and

                     (d)  that the person’s disability support pension is to be suspended.

             (2)  Subsection (1) does not apply to a person if:

                     (a)  the Secretary gives written notice to the person that the person is no longer qualified for disability support pension; and

                     (b)  the Secretary’s notice is given before the person informs the Secretary that the person has obtained work.

             (3)  If:

                     (a)  disability support pension ceases to be payable to a person because the rate of the pension is nil as a result of the income, or increased income, earned by the person from his or her employment; and

                     (b)  the person has informed the Secretary about the income or increased income within the notification period referred to in section 93;

the Secretary may determine:

                     (c)  that section 93 does not apply to the person’s disability support pension; and

                     (d)  that the person’s disability support pension is to be suspended.

             (4)  If:

                     (a)  the Secretary suspends a person’s disability support pension under subsection (1) or (3); and

                     (b)  the determination suspending the disability support pension continues in effect throughout the period of 2 years from the date of effect of the determination;

then, at the end of that period of 2 years, the determination granting the person disability support pension is, by force of this section, revoked.

             (5)  If:

                     (a)  the Secretary suspends a person’s disability support pension under subsection (1) or (3); and

                     (b)  the person has a partner who is receiving:

                              (i)  age pension; or

                             (ii)  disability support pension; or

                            (iii)  service pension or income support supplement;

then, for the period of the suspension, the partner is taken to be partnered (partner getting neither pension nor benefit).

             (6)  If:

                     (a)  the Secretary suspends a person’s disability support pension under subsection (1) or (3); and

                     (b)  the person has a partner who was, immediately before the suspension, receiving wife pension or carer payment;

the Secretary must determine that the partner’s wife pension or carer payment, as the case may be, is not to be cancelled but is to be suspended.

97  Disability support pension—suspension taken to have been under section 96

             (1)  If:

                     (a)  a person ceases to be qualified for disability support pension because the person obtains paid work that is for at least 30 hours per week; and

                     (b)  disability support pension ceases to be payable to the person under section 93; and

                     (c)  within the period of 2 years after the pension ceases to be payable, the person ceases to do work of the kind referred to in paragraph (a);

the Secretary may determine that the person is to be treated as if:

                     (d)  section 93 had not applied to the person’s disability support pension; and

                     (e)  the disability support pension had been suspended under section 96.

             (2)  If:

                     (a)  the Secretary makes a determination under subsection (1) in respect of a person; and

                     (b)  the person’s partner had ceased to be qualified for wife pension or carer payment when the person ceased to be qualified for disability support pension because the person obtained paid work;

the Secretary may determine that the partner is to be treated as if the partner’s wife pension or carer payment, as the case may be, had not been cancelled but had been suspended under section 96.

             (3)  If:

                     (a)  disability support pension ceased to be payable to a person under section 93 because the rate of the pension was nil as a result of the income, or increased income, earned by the person from his or her employment; and

                     (b)  within the period of 2 years after the pension ceased to be payable, the income earned by the person from his or her employment is reduced to a rate that would not preclude the person from receiving disability support pension;

the Secretary may determine that the person is to be treated as if:

                     (c)  section 93 had not applied to the person’s disability support pension; and

                     (d)  the disability support pension had been suspended under section 96.

             (4)  If:

                     (a)  the Secretary makes a determination under subsection (3) in respect of a person; and

                     (b)  the person’s partner had ceased to be qualified for wife pension or carer payment when disability support pension ceased to be payable to the person for the reason mentioned in paragraph (3)(a);

the Secretary may determine that the partner is to be treated as if the partner’s wife pension or carer payment, as the case may be, had not been cancelled but had been suspended under section 96.

98  Automatic rate reduction—partner starting to receive pension or benefit

             (1)  Subject to subsection (2), if:

                     (a)  a person is receiving a social security payment; and

                     (b)  the person’s partner starts to receive:

                              (i)  a social security pension or benefit; or

                             (ii)  a service pension or income support supplement; and

                     (c)  the person’s social security payment rate is reduced because of the partner’s receipt of the pension, benefit or supplement;

the social security payment becomes payable to the person at the reduced rate on the day on which the partner starts to receive the pension or benefit.

             (2)  If:

                     (a)  a person is receiving a social security payment; and

                     (b)  the person’s partner starts to receive:

                              (i)  a social security pension or benefit; or

                             (ii)  a service pension; and

                     (c)  because the partner starts to receive that pension or benefit, the person’s working credit balance or student income bank balance is reduced to nil; and

                     (d)  either because of the reduction of the balance to nil or because of the balance having already been reduced to nil—the person’s social security payment rate is to be reduced;

the social security payment becomes payable to the person at the reduced rate on:

                     (e)  if the rate reduction is attributable to the reduction of the balance to nil—the day on which the balance was so reduced; and

                      (f)  if the rate reduction is attributable to the balance having already been reduced to nil—the first day on which the opening balance was nil.

99  Automatic rate reduction—recipient complying with subsection 68(2) notice

             (1)  Subject to subsection (2), if:

                     (a)  a person who is receiving a social security payment is given a notice under subsection 68(2); and

                     (b)  the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

                     (c)  the event or change of circumstances occurs; and

                     (d)  the person informs the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

                     (e)  because of the occurrence of the event or change of circumstances, the rate of the social security payment is to be reduced; and

                      (f)  the person’s rate of payment is not reduced before the end of the instalment period for the person that is current when the event or change of circumstances occurs;

the following paragraphs have effect:

                     (g)  if the person’s rate of payment is reduced during the instalment period (the first period) following the instalment period in which the event or change of circumstances occurs, the payment becomes payable to the person at the reduced rate immediately after the end of the instalment period in which the event or change occurs;

                     (h)  if the person’s rate of payment is not reduced during the first period, the payment becomes payable to the person at the reduced rate immediately after the end of the notification period.

             (2)  If:

                     (a)  a person who is receiving a social security payment is given a notice under subsection 68(2); and

                     (b)  the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

                     (c)  the event or change of circumstances occurs; and

                     (d)  the person informs the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

                     (e)  because of the event or change of circumstances, the person’s working credit balance or student income bank balance is reduced to nil in an instalment period (the nil instalment period) of the person that is the same as, or later than, the instalment period in which the event or change of circumstances occurs (the event instalment period); and

                      (f)  either because of the reduction of the balance to nil or because of the balance having already been reduced to nil—the rate of the person’s social security payment is to be reduced; and

                     (g)  the person’s rate of payment is not so reduced before the end of the nil instalment period;

the social security payment becomes payable to the person at the reduced rate from the day immediately after the day determined in accordance with subsection (3).

             (3)  For the purposes of subsection (2), the day immediately after which the social security payment becomes payable to the person at the reduced rate is:

                     (a)  if the rate reduction is attributable to the reduction of the balance referred to in paragraph (2)(e) to nil and the rate is so reduced during the instalment period (the next instalment period) following the nil instalment period—the later of:

                              (i)  the day before the day on which the balance was reduced to nil; or

                             (ii)  the end of the event instalment period; and

                     (b)  if the rate reduction is attributable to the balance having already been reduced to nil and the rate is so reduced during the next instalment period—the later of:

                              (i)  the day before the first day on which the opening balance was nil; or

                             (ii)  the end of the event instalment period; and

                     (c)  if the rate reduction is attributable to the reduction of the balance to nil but the rate is not so reduced during the next instalment period—the later of:

                              (i)  the day on which the balance was reduced to nil; or

                             (ii)  the end of the notification period; and

                     (d)  if the rate reduction is attributable to the balance having already been reduced to nil but the rate is not so reduced during the next instalment period—the later of:

                              (i)  the day before the first day on which the opening balance is nil; or

                             (ii)  the end of the notification period.

100  Automatic rate reduction—recipient not complying with subsection 68(2) notice

             (1)  Subject to subsection (2), if:

                     (a)  a person who is receiving a social security payment is given a notice under subsection 68(2); and

                     (b)  the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

                     (c)  the event or change of circumstances occurs; and

                     (d)  the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

                     (e)  because of the occurrence of the event or change of circumstances, the rate of the social security payment is to be reduced;

the social security payment becomes payable to the person at the reduced rate on the day on which the event or change of circumstances occurs.

             (2)  If:

                     (a)  a person who is receiving a social security payment is given a notice under subsection 68(2); and

                     (b)  the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

                     (c)  the event or change of circumstances occurs; and

                     (d)  the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

                     (e)  because of the event or change of circumstances, the person’s working credit balance or student income bank balance is reduced to nil in an instalment period of the person that is the same as, or later than, the instalment period in which the event or change of circumstances occurs; and

                      (f)  either because of the reduction of the balance to nil or because of the balance having already been reduced to nil—the rate of the person’s social security payment is to be reduced;

the social security payment becomes payable to the person at the reduced rate on:

                     (g)  if the rate reduction is attributable to the reduction of the balance to nil—the day on which the balance was so reduced; and

                     (h)  if the rate reduction is attributable to the balance having already been reduced to nil—the first day on which the opening balance was nil.

101  Automatic rate reduction—receipt of pension by person receiving parenting payment

                   If:

                     (a)  a person who is a member of a couple is receiving parenting payment; and

                     (b)  as a result of a social security pension, a service pension or income support supplement becoming payable to the person, the rate at which parenting payment is payable to the person is reduced;

parenting payment becomes payable to the person at the reduced rate on the day on which the social security pension, the service pension or the income support supplement, as the case may be, becomes payable to the person.

103  Changes to payments by computer following automatic cancellation or reduction

             (1)  If:

                     (a)  a person is receiving a social security payment on the basis of data in a computer; and

                     (b)  the payment is cancelled, or the payment rate is reduced, by the operation of a provision of the social security law; and

                     (c)  the cancellation or reduction is given effect by the operation of a computer program used under the control of the Secretary stopping payment or reducing the rate of payment;

the Secretary is taken to have made a determination that the provision referred to in paragraph (b) applies to the person’s social security payment.

             (2)  A determination that is taken, by virtue of subsection (1), to have been made is taken to have been made on the day on which the cancellation or reduction took effect.

Subdivision BConcession cards

104  Automatic cancellation—holder complying with subsection 68(4) notice

                   If:

                     (a)  a person who is the holder of a concession card is given a notice under subsection 68(4); and

                     (b)  the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

                     (c)  the event or change of circumstances occurs; and

                     (d)  the person informs the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

                     (e)  because of the occurrence of the event or change of circumstances, the person would, but for this section, cease to be qualified for the card; and

                      (f)  the person does not cease to hold the card before the end of the notification period;

the person continues to be qualified for the card until the end of the notification period, and then ceases to be so qualified.

105  Automatic cancellation—holder not complying with subsection 68(4) notice

                   If:

                     (a)  a person who is the holder of a concession card is given a notice under subsection 68(4); and

                     (b)  the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

                     (c)  the event or change of circumstances occurs; and

                     (d)  the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

                     (e)  because of the occurrence of the event or change of circumstances, the person ceases to be qualified for the card;

the person ceases to be qualified for the card on the day on which the event or change of circumstances occurs.

106  Changes by computer following automatic cancellation

             (1)  If:

                     (a)  a person is qualified for a concession card on the basis of data in a computer; and

                     (b)  the person ceases, by virtue of section 104 or 105, to be qualified for the card; and

                     (c)  the cessation is given effect by the operation of a computer program under the control of the Secretary causing the person to be notified of the cessation;

the Secretary is taken to have made a determination that the provision referred to in paragraph (b) applies to the person’s concession card.

             (2)  A determination that is taken, by virtue of subsection (1), to have been made is taken to have been made on the day on which the cessation took effect.

106A  Automatic cancellation on cessation of qualification

                   If a person who is the holder of a concession card ceases, otherwise than by virtue of section 104 or 105, to be qualified for the card, the card is cancelled by force of this section on the day on which the person ceases to be so qualified.

Subdivision CAdditional provision for certain pensioner concession cards and automatic issue health care cards

106B  Automatic cancellation

             (1)  Subject to subsection (3), if:

                     (a)  a section 1061ZA pensioner concession card or a listed automatic issue health care card has been granted to a person; and

                     (b)  in order to be qualified for the card, the person must be receiving, or be qualified for, a particular social security pension or benefit; and

                     (c)  the pension or benefit is cancelled;

the section 1061ZA pensioner concession card or listed automatic issue health care card, as the case may be, is, by force of this section, cancelled.

             (2)  If:

                     (a)  a health care card has been granted to a person; and

                     (b)  the person was qualified for the card under subsection 1061ZK(4) of the 1991 Act; and

                     (c)  the person ceases to be qualified under that subsection;

the health care card is, by force of this section, cancelled.

             (3)  Subsection (1) does not have effect in a case in which the Secretary determines in writing that he or she is satisfied that the person concerned is likely to be granted a social security pension or benefit before it is reasonably practicable to take steps to give effect to the cancellation of the card.

             (4)  In this section:

listed automatic issue health care card means an automatic issue health care card that is granted:

                     (a)  to a person who receives one of the following social security payments:

                              (i)  widow allowance;

                             (ii)  newstart allowance;

                            (iii)  sickness allowance;

                            (iv)  special benefit;

                             (v)  partner allowance;

                            (vi)  benefit PP (partnered); or

                     (b)  to a person who is receiving youth allowance and who, at the time when a determination was made to grant the person the youth allowance, was not undertaking full-time study; or

                     (c)  to a person who is receiving exceptional circumstances relief payment or farm help income support under the Farm Household Support Act 1992.

section 1061ZA pensioner concession card means a pensioner concession card granted to a person who is qualified for the card under section 1061ZA of the 1991 Act.


 

Division 9Date of effect of determinations

Subdivision ADeterminations relating to claims

107  General rule

             (1)  Subject to subsections (2), (3), (4) and (5), a determination under section 37 takes effect on the day on which the determination is made or on such earlier or later day as is specified in the determination.

             (2)  If:

                     (a)  a decision (the original decision) is made rejecting a person’s claim for a social security payment or a concession card; and

                     (b)  the person is given a notice informing him or her of the original decision; and

                     (c)  within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

                     (d)  a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.

             (3)  If:

                     (a)  a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and

                     (b)  the person is given a notice informing him or her of the original decision; and

                     (c)  more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

                     (d)  a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made.

             (4)  If:

                     (a)  a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and

                     (b)  no notice is given to the person informing the person of the original decision; and

                     (c)  the person applies to the Secretary, under section 129, for review of the original decision; and

                     (d)  a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.

             (5)  If:

                     (a)  a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and

                     (b)  the person is given a notice informing him or her of the original decision; and

                     (c)  the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and

                     (d)  a decision that the claim be granted is made as a result of the review;

the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.

Subdivision BDeterminations under section 78, 81A, 85 or 85A

108  Definition

                   In this Subdivision:

favourable determination means a determination under section 78, 85 or 85A.

109  Date of effect of favourable determination resulting from review

             (1)  If:

                     (a)  a decision (the original decision) is made in relation to a person’s social security payment; and

                     (b)  a notice is given to the person informing the person of the original decision; and

                     (c)  within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

                     (d)  the favourable determination is made as a result of the application for review;

the favourable determination takes effect on the day on which the determination embodying the original decision took effect.

             (2)  If:

                     (a)  a decision (the original decision) is made in relation to a person’s social security payment; and

                     (b)  a notice is given to the person informing the person of the original decision; and

                     (c)  more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

                     (d)  the favourable determination is made as a result of the application for review;

the favourable determination takes effect on the day on which the application for review was made.

             (3)  If:

                     (a)  a decision (the original decision) is made in relation to a person’s social security payment; and

                     (b)  the person is not given notice of the original decision; and

                     (c)  the person applies to the Secretary, under section 129, for review of the original decision; and

                     (d)  the favourable determination is made as a result of the application for review;

the favourable determination takes effect on the day on which the determination embodying the original decision took effect.

             (4)  If:

                     (a)  a decision (the original decision) is made in relation to a person’s social security payment; and

                     (b)  the person is given a notice informing him or her of the original decision; and

                     (c)  the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and

                     (d)  as a result of the review, the favourable determination is made within 13 weeks after notice of the original decision was given to the person;

the favourable determination takes effect on the day on which the determination embodying the original decision took effect.

             (5)  If:

                     (a)  a decision (the original decision) is made in relation to a person’s social security payment; and

                     (b)  the person is given a notice informing him or her of the original decision; and

                     (c)  the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and

                     (d)  as a result of the review, the favourable determination is made more than 13 weeks after notice of the original decision was given to the person;

the favourable determination takes effect on the day on which the review was begun by the Secretary.

110  Date of effect of favourable determination

             (1)  Subject to subsections (1A) to (11) (inclusive), if a favourable determination is made following a person having informed the Department of the occurrence of an event or change of circumstances, the determination takes effect:

                     (a)  on the day on which the person so informed the Department; or

                     (b)  on the day on which the event or change occurred;

whichever is the later.

          (1A)  If a favourable determination is made in relation to a person who has not reached pension age:

                     (a)  following the person’s having informed the Department of the occurrence of an event or change of circumstances; and

                     (b)  because, in an instalment period of the person:

                              (i)  there is a decrease in the amount of employment income that is earned, derived or received, or that is taken to have been earned, derived or received, by the person; or

                             (ii)  the person has ceased to earn, derive or receive, or to be taken to earn, derive or receive, employment income;

the determination takes effect on the first day of the instalment period, or on the first day of the instalment period in which the person so informs the Department, whichever is the later.

             (2)  Subject to subsection (2A), if a favourable determination is made following a person having given the Department a statement about a matter in accordance with a notice under section 67 or 68, the determination takes effect on the day on which the matter arose.

          (2A)  If a favourable determination is made in relation to a person who has not reached pension age:

                     (a)  following the person’s having given the Department a statement about a matter in accordance with a notice under section 68 that relates to the payment of the social security payment in respect of an instalment period specified in the notice; and

                     (b)  because, in the instalment period:

                              (i)  there is a decrease in the amount of employment income that is earned, derived or received, or that is taken to have been earned, derived or received, by the person; or

                             (ii)  the person has ceased to earn, derive or receive, or to be taken to earn, derive or receive, employment income;

the determination takes effect on the first day of the instalment period.

             (3)  Subject to subsection (3A), if:

                     (a)  a person and his or her partner (the partner) are each receiving a social security payment; and

                     (b)  the partner has been given a notice under section 68 that requires the partner to give the Department a statement; and

                     (c)  the notice relates to the payment of the partner’s social security payment in respect of a period specified in the notice; and

                     (d)  the partner gives the Department a statement, in accordance with the notice, about a matter that arose during the specified period; and

                     (e)  following the giving of the statement, a favourable determination is made in relation to the person’s social security payment;

the determination takes effect on the day on which the matter arose.

          (3A)  If:

                     (a)  a person and his or her partner (the partner) are each receiving a social security payment; and

                     (b)  the partner has not reached pension age; and

                     (c)  the partner has been given a notice under section 68 that requires the partner to give the Department a statement; and

                     (d)  the notice relates to the payment of the partner’s social security payment in respect of an instalment period specified in the notice; and

                     (e)  the partner gives the Department a statement, in accordance with the notice, about a matter that arose during the instalment period; and

                      (f)  following the giving of the statement, a favourable determination is made in relation to the person’s social security payment; and

                     (g)  the determination is made because, in the instalment period:

                              (i)  there is a decrease in the amount of employment income that is earned, derived or received, or that is taken to have been earned, derived or received, by the partner; or

                             (ii)  the partner has ceased to earn, derive or receive, or to be taken to earn, derive or receive, employment income;

the determination takes effect on the first day of the instalment period.

             (4)  If:

                     (a)  a favourable determination is made following the death of a person’s partner (the partner); and

                     (b)  the favourable determination is made because the person elects not to receive bereavement payments; and

                     (c)  within the bereavement period:

                              (i)  the person notifies the Department, orally or in writing or in a manner approved by the Secretary, of the partner’s death; or

                             (ii)  the Secretary otherwise becomes aware of the death;

the determination takes effect on the day on which the partner died.

             (5)  If:

                     (a)  a favourable determination is made following the death of a person’s partner (the partner); and

                     (b)  immediately before the partner died, the partner:

                              (i)  was not receiving a social security pension, a service pension or income support supplement; and

                             (ii)  was not a long-term social security recipient; and

                     (c)  within the period of 4 weeks starting on the day after the day on which the partner dies:

                              (i)  the person notifies the Department, orally or in writing or in a manner approved by the Secretary, of the partner’s death; or

                             (ii)  the Secretary otherwise becomes aware of the death;

the determination takes effect on the day on which the partner died.

             (9)  If:

                     (a)  the favourable determination is made as a result of the Secretary forming the opinion, for the purposes of subsection 5(12) of the 1991 Act, that a young person will not, or would not, if an application were duly made, receive payments under a prescribed educational scheme; and

                     (b)  the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;

the determination takes effect on the day on which the determination is made or on such earlier or later day as is specified in the determination.

           (10)  If:

                     (a)  the favourable determination is made because, for the purposes of subsection 5(11) of the 1991 Act, a young person is not qualified to receive a payment under a prescribed educational scheme; and

                     (b)  the young person, or another person or organisation, was previously in receipt of a payment under a prescribed educational scheme in respect of the young person but the payment has since ceased; and

                     (c)  the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received;

the determination takes effect on the day on which the determination is made or on such earlier or later day as is specified in the determination.

           (11)  If:

                     (a)  the favourable determination is made because, for the purposes of subsection 5(11) of the 1991 Act, a young person is not qualified to receive payments under any prescribed educational scheme; and

                     (b)  no application has been made for payments in respect of that young person under any prescribed educational scheme; and

                     (c)  the Secretary is satisfied that it is reasonable that no such application has been made; and

                     (d)  the young person ceased, within 13 weeks after becoming a prescribed student child, to be a prescribed student child because the Secretary formed an opinion for the purposes of paragraph 5(12)(c) of the 1991 Act;

the determination takes effect on the day on which the young person became a prescribed student child.

111  Date of effect of section 78 determination resulting from indexation or adjustment

                   If:

                     (a)  the Secretary makes a determination under section 78; and

                     (b)  the determination is made because an amount has been indexed or adjusted by the operation of Part 3.16 of the 1991 Act;

the determination takes effect on the day on which the amount was so indexed or adjusted.

114  Date of effect of other favourable determinations

             (1)  In the case of a favourable determination to which neither section 109 nor section 110 applies, the determination takes effect on the day on which the determination is made or on such other day as is specified in the determination.

             (2)  A day specified in a determination for the purpose of subsection (1) may be:

                     (a)  later than the day on which the determination is made; or

                     (b)  not earlier than 13 weeks before the day on which the determination is made.

Subdivision CDeterminations under section 89

115  Definition

                   In this Subdivision:

favourable determination means a determination under section 89.

116  Date of effect of favourable determination resulting from review—concession cards

             (1)  If:

                     (a)  a decision (the original decision) is made in relation to a person’s qualification for a concession card; and

                     (b)  the person is given a notice informing him or her of the original decision; and

                     (c)  within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

                     (d)  the favourable determination is made as a result of the application for review;

the favourable determination takes effect on the day on which the determination embodying the original decision took effect.

             (2)  If:

                     (a)  a decision (the original decision) is made in relation to a person’s qualification for a concession card; and

                     (b)  the person is given a notice informing him or her of the original decision; and

                     (c)  more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

                     (d)  the favourable determination is made as a result of the application for review;

the favourable determination takes effect on the day on which the application for review was made.

             (3)  If:

                     (a)  a decision (the original decision) is made in relation to a person’s qualification for a concession card; and

                     (b)  the person is not given any notice informing him or her of the original decision; and

                     (c)  the person applies to the Secretary, under section 129, for review of the original decision; and

                     (d)  the favourable determination is made as a result of the application for review;

the favourable determination takes effect on the day on which the determination embodying the original decision took effect.

             (4)  If:

                     (a)  a decision (the original decision) is made in relation to a person’s qualification for a concession card; and

                     (b)  the person is given a notice informing him or her of the original decision; and

                     (c)  the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made;

                     (d)  as a result of the review, the favourable decision is made more than 13 weeks after the notice of the original decision was given to the person;

the favourable determination takes effect on the day on which the determination embodying the original decision took effect.

Subdivision DDate of effect of adverse determinations relating to social security payments

117  Definition

                   In this Subdivision:

adverse determination means a determination under section 79, 80, 81, 81A or 82.

118  Date of effect of adverse determinations—general rules

             (1)  The day on which an adverse determination takes effect in relation to a social security payment is worked out:

                     (b)  in the case of carer payment—in accordance with this section and section 120; and

                     (c)  in the case of any other social security payment—in accordance with this section.

             (2)  Subject to subsections (2A) and (2B), if:

                     (a)  an adverse determination is made following a person having informed the Department of the occurrence of an event or change of circumstances; and

                     (b)  the person is not paid an instalment of the social security payment after the occurrence of the event or change and before the determination is made;

the determination takes effect on the day on which the event or change of circumstances occurred.

          (2A)  If an adverse determination is made in relation to a person who has not reached pension age:

                     (a)  following the person’s having informed the Department of the occurrence of an event or change of circumstances; and

                     (b)  because the person earns, derives or receives, or is taken to earn, derive or receive, employment income in an instalment period of the person;

the determination takes effect on:

                     (c)  if the determination is attributable to the reduction, during the instalment period, of the person’s working credit balance or student income bank balance to nil—the day on which the balance was so reduced; and

                     (d)  if the determination is attributable to the person’s having a working credit balance or a student income bank balance that has already been reduced to nil during the instalment period—the first day in the instalment period on which the person’s opening balance was nil; and

                     (e)  in any other case—the first day of the instalment period;

so long as the person is not paid an instalment of the social security payment after the day worked out under paragraph (c), (d) or (e) and before the determination is made.

          (2B)  If:

                     (a)  an adverse determination is made in relation to a person following the person’s having informed the Department of the occurrence of an event or change of circumstances; and

                     (b)  the determination is made because, in an instalment period of the person, either:

                              (i)  the person earns, derives or receives, or is taken to earn, derive or receive, ordinary income other than employment income; or

                             (ii)  the person has reached pension age and earns, derives or receives, or is taken to earn, derive or receive, employment income; and

                     (c)  the person’s student income bank balance is reduced to nil during the instalment period;

the determination takes effect on:

                     (d)  if the determination is attributable to the reduction of the student income bank balance to nil—the day on which the balance was so reduced; and

                     (e)  if the determination is attributable to the person’s having a student income bank balance that has already been reduced to nil during the instalment period—the first day in the instalment period on which the person’s opening balance was nil;

so long as the person is not paid an instalment of the social security payment after the day worked out under paragraph (d) or (e) and before the determination is made.

             (3)  If:

                     (a)  an adverse determination is made in relation to a person because of point 1064-E3, 1066A-F2A, 1067G-H25, 1067L-D24, 1068-G8A, 1068A-E13 or 1068B-D21, or Division 3 of Part 3.14, of the 1991 Act; and

                     (b)  a social security payment has been paid to the person or the person’s partner when, because of the payment of arrears of periodic compensation payments, the payment should have been cancelled or suspended;

the determination takes effect on the first day of the periodic payments period to which the arrears of periodic compensation payments relate.

             (4)  If:

                     (a)  an adverse determination is made in relation to a person because of point 1064-E3, 1066A-F2A, 1067G-H25, 1067L-D24, 1068-G8A, 1068A-E13 or 1068B-D21, or Division 3 of Part 3.14, of the 1991 Act; and

                     (b)  the rate at which a social security payment was paid to the person or the person’s partner was, because of the payment of arrears of periodic compensation payments, higher than the rate at which the payment should have been paid;

the determination takes effect on the first day of the periodic payments period to which the arrears of periodic compensation payments relate.

             (5)  Subject to subsections (5A) and (5B), if the adverse determination is made following a person having given the Department a statement about a matter in accordance with a notice under section 67 or 68, the determination takes effect on the day on which the matter arose.

          (5A)  If an adverse determination is made in relation to a person who has not reached pension age:

                     (a)  following the person’s having given the Department a statement about a matter in accordance with a notice under section 68 that relates to the payment of the social security payment in respect of an instalment period specified in the notice; and

                     (b)  because the person earns, derives or receives, or is taken to earn, derive or receive, employment income in the instalment period;

the determination takes effect on:

                     (c)  if the determination is attributable to the reduction, during the instalment period, of the person’s working credit balance or student income bank balance to nil—the day on which the balance was so reduced; and

                     (d)  if the determination is attributable to the person’s having a working credit balance or a student income bank balance that has already been reduced to nil during the instalment period—the first day in the instalment period on which the person’s opening balance was nil; and

                     (e)  in any other case—the first day of the instalment period.

          (5B)  If:

                     (a)  an adverse determination is made in relation to a person following the person’s having given the Department a statement about a matter in accordance with a notice under section 68 that relates to the payment of the social security payment in respect of an instalment period specified in the notice; and

                     (b)  the determination is made because, in the instalment period, either:

                              (i)  the person earns, derives or receives, or is taken to earn, derive or receive, ordinary income other than employment income; or

                             (ii)  the person has reached pension age and earns, derives or receives, or is taken to earn, derive or receive, employment income; and

                     (c)  the person’s student income bank balance is reduced to nil during the instalment period;

the determination takes effect on:

                     (d)  if the determination is attributable to the reduction of the student income bank balance to nil—the day on which the balance was so reduced; and

                     (e)  if the determination is attributable to the person’s having a student income bank balance that has already been reduced to nil during the instalment period—the first day in the instalment period on which the person’s opening balance was nil.

             (6)  Subject to subsections (6A) and (6B), if:

                     (a)  a person and his or her partner (the partner) are each receiving a social security payment; and

                     (b)  the partner is given a notice under section 68 requiring the partner to give the Department a statement; and

                     (c)  the notice relates to the payment of the partner’s social security payment in respect of a period specified in the notice; and

                     (d)  the partner gives the Department a statement, in accordance with the notice, about a matter that arose during the specified period; and

                     (e)  following the giving of the statement, an adverse determination is made in relation to the person’s social security payment;

the determination takes effect on the day on which the matter arose.

          (6A)  If:

                     (a)  a person and his or her partner (the partner) are each receiving a social security payment; and

                     (b)  the partner has not reached pension age; and

                     (c)  the partner is given a notice under section 68 requiring the partner to give the Department a statement; and

                     (d)  the notice relates to the payment of the partner’s social security payment in respect of an instalment period specified in the notice; and

                     (e)  the partner gives the Department a statement, in accordance with the notice, about a matter that arose during the instalment period; and

                      (f)  following the giving of the statement, an adverse determination is made in relation to the person’s social security payment; and

                     (g)  the determination is made because the partner earns, derives or receives, or is taken to earn, derive or receive, employment income in the instalment period;

the determination takes effect on:

                     (h)  if the adverse determination is attributable to the reduction, during the instalment period, of the partner’s working credit balance or student income bank balance to nil—the day on which the balance was so reduced; and

                      (i)  if the determination is attributable to the partner’s having a working credit balance or a student income bank balance that has already been reduced to nil during the instalment period—the first day of the instalment period on which the opening balance was nil; and

                      (j)  in any other case—the first day of the instalment period.

          (6B)  If:

                     (a)  a person and his or her partner (the partner) are each receiving a social security payment; and

                     (b)  the partner is given a notice under section 68 requiring the partner to give the Department a statement; and

                     (c)  the notice relates to the payment of the partner’s social security payment in respect of an instalment period specified in the notice; and

                     (d)  the partner gives the Department a statement, in accordance with the notice, about a matter that arose during the instalment period; and

                     (e)  the partner’s student income bank balance is reduced to nil during the instalment period; and

                      (f)  following the giving of the statement, an adverse determination is made in relation to the person’s social security payment; and

                     (g)  the determination is made because, in the instalment period, either:

                              (i)  the partner earns, derives or receives, or is taken to earn, derive or receive, ordinary income other than employment income; or

                             (ii)  the partner has reached pension age and earns, derives or receives, or is taken to earn, derive or receive, employment income;

the determination takes effect on:

                     (h)  if the determination is attributable to the reduction of the partner’s student income bank balance to nil—the day on which the balance was so reduced; and

                      (i)  if the determination is attributable to the partner’s having a student income bank balance that has already been reduced to nil during the instalment period—the first day in the instalment period on which the partner’s opening balance was nil.

             (7)  If:

                     (a)  the person whose social security payment is affected by the adverse determination has contravened a provision of this Act or a provision of the 1991 Act (other than an excluded provision); and

                     (b)  the contravention causes a delay in the making of the determination;

the adverse determination takes effect on such day (which may be earlier than the day on which the determination is made) as is specified in the determination.

          (7A)  Subsection (7) does not apply to a determination under subsection 81(3).

             (8)  If:

                     (a)  a person has made a false statement or misrepresentation; and

                     (b)  because of the false statement or misrepresentation, a social security payment has been paid to a person when it should have been cancelled or suspended;

the adverse determination takes effect on such day (which may be earlier than the day on which the determination is made) as is specified in the determination.

             (9)  If:

                     (a)  a person has made a false statement or misrepresentation; and

                     (b)  because of the false statement or misrepresentation, the rate at which a social security payment was paid to a person was higher than it should have been;

the adverse determination takes effect on such day (which may be earlier than the day on which the determination is made) as is specified in the determination.

           (11)  If:

                     (a)  a person’s social security payment is suspended under section 81 or 82; and

                     (b)  the payment is subsequently cancelled under section 80, 81 or 82;

the determination by which the payment is cancelled takes effect on the day on which the payment was suspended.

        (11A)  Despite subsection (11), a determination under section 80 or subsection 81(3) cancelling a person’s social security payment that has already been suspended under subsection 81(3) takes effect on such day (which may be earlier than the day on which the determination is made) as is specified in the determination.

           (12)  An adverse determination in relation to telephone allowance takes effect:

                     (a)  on the day on which it is made; or

                     (b)  if a later day is specified in the determination, on that day.

        (12A)  If:

                     (a)  a decision (the social security decision) was made that rent assistance (the social security rent assistance) was to be included when calculating a person’s rate of social security payment for each day in a period; and

                     (b)  the condition in subsection (12B) is met for each day in that period (which is about rent assistance also being included in family tax benefit); and

                     (c)  because the inclusion of the social security rent assistance was contrary to Part 3.7 of the 1991 Act, an adverse determination is made to reduce the rate of, or cancel, the person’s social security payment for each day in that period;

the adverse determination takes effect on the first day of that period.

         (12B)  The condition in this subsection is met for each day in a period if:

                     (a)  both of the following apply:

                              (i)  the person was a member of a couple (other than an illness separated couple, a respite care couple or a temporarily separated couple) on each day in the period;

                             (ii)  when the social security decision was made, a determination under the family assistance law was in force that included rent assistance when calculating the person’s, or the person’s partner’s, Part A rate of family tax benefit for each day in the period; or

                     (b)  both of the following apply:

                              (i)  the person was not a member of a couple, or was a member of an illness separated couple, a respite care couple, or a temporarily separated couple, on each day in the period;

                             (ii)  when the social security decision was made, a determination under the family assistance law was in force that included rent assistance when calculating the person’s Part A rate of family tax benefit for each day in the period; or

                     (c)  all of the following apply:

                              (i)  when the social security decision was made, no determination of a kind mentioned in subparagraph (a)(ii) or (b)(ii) (as the case requires) was in force;

                             (ii)  after the social security decision was made, such a determination was made;

                            (iii)  each day in the period either is, or comes after, the day on which the determination was made.

           (13)  In any other case, an adverse determination takes effect:

                     (a)  on the day on which it is made; or

                     (b)  if a later day is specified in the determination, on that day.

           (14)  For the purposes of subsection (7), the excluded provisions are:

                     (a)  subsections 67(2), 68(2) and 69(2) of this Act to the extent that they relate to the giving of a notice requiring a person to give a statement to the Department; and

                     (b)  sections 192, 193, 194 and 195 of this Act.

120  Additional rules in the case of carer payment

             (1)  If:

                     (a)  the Secretary makes a determination (the earlier determination) that a person (the carer) is entitled to carer payment because the carer is providing care for a care receiver or care receivers; and

                     (b)  the determination is based on an assessment of the taxable income of the care receiver, or any of the care receivers, for a tax year; and

                     (c)  the assessment is subsequently amended by the Commissioner of Taxation, a tribunal or a court; and

                     (d)  as a result of the amendment of the assessment, the taxable income of the care receiver, or the sum of the taxable incomes of the care receivers, is more than the income ceiling under section 198A of the 1991 Act; and

                     (e)  the Secretary makes a determination under section 80 cancelling or suspending the carer payment;

the adverse determination takes effect on the day on which the earlier determination took effect.

             (2)  If:

                     (a)  the Secretary makes a determination (the earlier determination) that a person (the carer) is entitled to carer payment because the carer is providing care for a care receiver or care receivers; and

                     (b)  in making the determination, the Secretary had regard to the taxable income of the care receiver, or the sum of the taxable incomes of the care receivers, for a tax year; and

                     (c)  the taxable income of the care receiver or any of the care receivers is or includes an amount estimated by:

                              (i)  in the case of a care receiver who is a higher ADAT score adult—the care receiver or the care receiver’s partner; or

                             (ii)  in the case of a care receiver who is a profoundly disabled child or a disabled child—the parent of the care receiver, the parent’s partner (if the parent is a member of a couple) or the carer; or

                            (iii)  in the case of a care receiver who is a lower ADAT score adult—the carer or the care receiver’s partner; or

                            (iv)  in the case of a care receiver who is a dependent child of a lower ADAT score adult—the carer or the care receiver’s parent; and

                     (d)  the Commissioner of Taxation subsequently makes an assessment of that taxable income; and

                     (e)  as a result of the assessment, the taxable income of the care receiver or the sum of the taxable incomes of the care receivers is more than the income ceiling under section 198A of the 1991 Act; and

                      (f)  the Secretary makes a determination under section 80 cancelling or suspending the carer payment;

the adverse determination takes effect on the day on which the earlier determination took effect.

             (3)  If:

                     (a)  on the basis of the taxable income for a tax year of a care receiver who is a higher ADAT score adult, the Secretary makes a determination that a person (the carer) is entitled to carer payment because the carer is providing care for the care receiver; and

                     (b)  the care receiver’s taxable income for a later tax year exceeds the income ceiling under section 198A of the 1991 Act; and

                     (c)  the Secretary makes a determination under section 80 cancelling or suspending the carer’s carer payment;

the adverse determination takes effect:

                     (d)  if the Secretary made the determination under section 80 after the carer or care receiver informed the Department that the care receiver’s taxable income exceeded the income ceiling—on the day on which the carer or care receiver informed the Department; or

                     (e)  if, when the Secretary made the determination under section 80, the Department had not been informed by the carer or the care receiver that the care receiver’s taxable income exceeded the income ceiling—on the day on which the care receiver’s taxable income exceeded the income ceiling.

             (4)  If:

                     (a)  on the basis of the taxable income for a tax year of a care receiver who is a profoundly disabled child, the Secretary makes a determination that a person (the carer) is entitled to carer payment because the carer is providing care for the care receiver; and

                     (b)  the care receiver’s taxable income for a later tax year exceeds the income ceiling under section 198A of the 1991 Act; and

                     (c)  the Secretary makes a determination under section 80 cancelling or suspending the carer’s carer payment;

the adverse determination takes effect:

                     (d)  if the Secretary made the determination under section 80 after the parent or carer of the disabled child informed the Department that the care receiver’s taxable income exceeded the income ceiling—on the day on which the parent or carer informed the Department; or

                     (e)  if, when the Secretary made the determination under section 80, the Department had not been informed by the parent or carer that the care receiver’s taxable income exceeded the income ceiling—on the day on which the care receiver’s taxable income exceeded the income ceiling.

             (5)  If:

                     (a)  on the basis of the sum of the taxable incomes for a tax year of care receivers who are disabled children, the Secretary makes a determination that a person (the carer) is entitled to carer payment because the carer is providing care to the care receivers; and

                     (b)  the sum of the taxable incomes of the care receivers for a later tax year exceeds the income ceiling under section 198A of the 1991 Act; and

                     (c)  the Secretary makes a determination under section 80 cancelling or suspending the carer’s carer payment;

the adverse determination takes effect:

                     (d)  if the Secretary made the determination under section 80 after a parent or carer of any of the disabled children informed the Department that the sum of the taxable incomes exceeded the income ceiling—on the day on which the parent or carer informed the Department; or

                     (e)  if, when the Secretary made the determination under section 80, the Department had not been informed by a parent or carer of any of the disabled children that the sum of the taxable incomes exceeded the income ceiling—on the day on which the sum of the taxable incomes of the care receivers exceeded the income ceiling.

             (6)  If:

                     (a)  on the basis of the sum of the taxable incomes for a tax year of care receivers who are a lower ADAT score adult and a dependent child, the Secretary makes a determination that a person (the carer) is entitled to carer payment because the carer is providing care to the care receivers; and

                     (b)  the sum of the taxable incomes of the care receivers for a later tax year exceeds the income ceiling under section 198A of the 1991 Act; and

                     (c)  the Secretary makes a determination under section 80 cancelling or suspending the carer’s carer payment;

the adverse determination takes effect:

                     (d)  if the Secretary made the determination under section 80 after the carer, the lower ADAT score adult or a parent of the dependent child informed the Department that the sum of the taxable incomes exceeded the income ceiling—on the day on which the Department was so informed; or

                     (e)  if, when the Secretary made the determination under section 80, the Department had not been informed by the carer, the lower ADAT score adult or a parent of the dependent child that the sum of the taxable incomes exceeded the income ceiling—on the day on which the sum of the taxable incomes exceed the income ceiling.

Subdivision EDate of effect of adverse determinations relating to concession cards

121  Definition

                   In this Subdivision:

adverse determination means a determination under section 86 or 87.

122  Date of effect of adverse determinations

                   An adverse determination takes effect:

                     (a)  on the day on which it is made; or

                     (b)  if a later day is specified in the determination, on that day.


 

Division 10Continuing effect of determinations

123  Continuing effect of determinations

             (1)  A determination that:

                     (a)  a person’s claim for a social security payment is granted; or

                     (b)  a social security payment is payable to a person;

continues in effect until:

                     (c)  a further determination in relation to the payment under section 80, 81 or 82 takes effect; or

                     (d)  the payment ceases to be payable under section 90, 91, 93, 94 or 95; or

                     (e)  the end of the day immediately before the day on which the person dies.

             (2)  A determination that a person is qualified for a concession card continues in effect until:

                     (a)  a further determination under section 86 or 87 takes effect; or

                     (b)  the person ceases to be qualified under section 104 or 105.

             (3)  A determination of the rate of a social security payment continues in effect until:

                     (a)  a further determination in relation to the payment under section 78, 79, 81A or 85A takes effect; or

                     (b)  the payment becomes payable at a lower rate under section 98, 99 or 100.


 

Part 3ANominees

Division 1Preliminary

123A  Definitions

                   In this Part:

correspondence nominee means a person who, by virtue of an appointment in force under section 123C, is the correspondence nominee of another person.

nominee means a correspondence nominee or a payment nominee.

payment nominee means:

                     (a)  a person who, by virtue of an appointment in force under section 123B, is the payment nominee of another person; or

                     (b)  a person to whom instalments of youth allowance of another person are to be paid in accordance with subsection 45(1).

principal, in relation to a nominee, means:

                     (a)  in the case of a nominee appointed under section 123B or 123C, the person in relation to whom the nominee was appointed; or

                     (b)  in the case of a person to whom instalments of youth allowance are to be paid in accordance with subsection 45(1), the person on whose behalf those instalments are to be so paid.

relevant payment means:

                     (a)  instalments of a social security periodic payment; or

                     (b)  instalments of a special employment advance; or

                     (c)  a social security payment that is a lump sum benefit for the purposes of section 47; or

                     (d)  instalments of utilities allowance; or

                     (e)  instalments of seniors concession allowance.


 

Division 2Appointment of nominees

123B  Appointment of payment nominee

                   Subject to section 123D, the Secretary may, in writing:

                     (a)  appoint a person (including a body corporate) to be the payment nominee of another person for the purposes of the social security law; and

                     (b)  direct that the whole or a specified part of a specified relevant payment that is payable to the nominee’s principal, or would, but for subsection 45(1), be so payable, is to be paid to the nominee.

123C  Appointment of correspondence nominee

                   Subject to section 123D, the Secretary may, in writing, appoint a person (including a body corporate) to be the correspondence nominee of another person for the purposes of the social security law.

123D  Provisions relating to appointments

             (1)  A person may be appointed as the payment nominee and the correspondence nominee of the same person.

             (2)  The Secretary must not appoint a nominee for a person (the proposed principal) under section 123B or 123C except:

                     (a)  with the written consent of the person to be appointed; and

                     (b)  after taking into consideration the wishes (if any) of the proposed principal regarding the making of such an appointment.

             (3)  The Secretary must cause a copy of an appointment under section 123B or 123C to be given to:

                     (a)  the nominee; and

                     (b)  the principal.

             (4)  The Secretary must not appoint a payment nominee for a person who is the holder of a concession card but is not receiving a social security payment.

123E  Suspension and revocation of nominee appointments

             (1)  If a person who is a nominee by virtue of an appointment under section 123B or 123C informs the Secretary in writing that the person no longer wishes to be a nominee under that appointment, the Secretary must, as soon as practicable, revoke the appointment.

             (2)  If:

                     (a)  the Secretary gives a person who is a nominee a notice under section 123K; and

                     (b)  the person informs the Department that:

                              (i)  an event or change of circumstances has occurred or is likely to occur; and

                             (ii)  the event or change of circumstances is likely to have an effect referred to in paragraph 123K(1)(b);

the Secretary may suspend or revoke the appointment by virtue of which the person is a nominee.

             (3)  If:

                     (a)  the Secretary gives a person who is a nominee a notice under section 123K or 123L; and

                     (b)  the person does not comply with the requirement of the notice;

the Secretary may suspend or revoke the appointment, or each appointment, by virtue of which the person is a nominee.

             (4)  While an appointment is suspended, the appointment has no effect for the purposes of this Part.

             (5)  The Secretary may, at any time, cancel the suspension of an appointment under subsection (2) or (3).

             (6)  The suspension or revocation of an appointment, and the cancellation of such a suspension, must be in writing.

             (7)  The revocation of an appointment has effect on and from such day, being later than the day of the revocation, as is specified in the revocation.

             (8)  Subsections (2) and (3) do not apply to a person who is a payment nominee by virtue of paragraph (b) of the definition of payment nominee in section 123A.

             (9)  The Secretary must cause a copy of:

                     (a)  a suspension of an appointment; or

                     (b)  a revocation of an appointment; or

                     (c)  a cancellation of a suspension of an appointment;

to be given to:

                     (d)  the nominee; and

                     (e)  the principal.


 

Division 3Payments to payment nominee

123F  Payment of instalments etc. to payment nominee

             (1)  If:

                     (a)  a person has a payment nominee; and

                     (b)  the whole or a part of a relevant payment is payable to the person, or would, but for subsection 45(1), be so payable; and

                     (c)  the Secretary has given a direction in relation to the relevant payment under section 123B;

the relevant payment is to be paid in accordance with the direction.

             (2)  An amount paid to the payment nominee of a person:

                     (a)  is paid to the payment nominee on behalf of the person; and

                     (b)  is taken, for the purposes of the social security law (other than this Part), to have been paid to the person and to have been so paid when it was paid to the nominee.

             (3)  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.

             (4)  The Secretary may direct that the whole or a part of an amount that is to be paid to a payment nominee be paid to the payment nominee in a different way from that provided for by subsection (3). If the Secretary gives such a direction, an amount to which the direction relates is to be paid in accordance with the direction.

             (5)  Subsections (3) and (4) do not apply in the case of a person who is a payment nominee by virtue of paragraph (b) of the definition of payment nominee in section 123A.


 

Division 4Functions and responsibilities of nominees

123G  Definition

                   In this Division:

benefit recipient means a person who:

                     (a)  has made a claim for, or is receiving, a social security payment; or

                     (b)  has made a claim for, or is the holder of, a concession card.

123H  Actions of correspondence nominee on behalf of benefit recipient

             (1)  Subject to section 123S and subsection (4), any act that may be done by a benefit recipient under, or for the purposes of, the social security law (other than an act for the purposes of Division 2 or 3) may be done by the benefit recipient’s correspondence nominee.

             (2)  Without limiting subsection (1), an application or claim that may be made under the social security law by a benefit recipient may be made by the benefit recipient’s correspondence nominee on behalf of the benefit recipient, and an application or claim so made is taken to be made by the benefit recipient.

             (3)  An act done by a benefit recipient’s correspondence nominee under this section has effect, for the purposes of the social security law (other than this Part), as if it had been done by the benefit recipient.

             (4)  If, under a provision of the social security law, the Secretary:

                     (a)  gives to a benefit recipient who has a correspondence nominee a notice making a requirement of the benefit recipient; or

                     (b)  notifies a benefit recipient who has a correspondence nominee that the benefit recipient is required to do an act;

subsection (1) does not authorise the correspondence nominee to do an act that is required by the notice or the notification, as the case may be, to be done by the benefit recipient.

123I  Giving of notices to correspondence nominee

             (1)  Any notice that the Secretary is authorised or required by the social security law to give to a benefit recipient may be given by the Secretary to the benefit recipient’s correspondence nominee.

             (2)  The notice:

                     (a)  must, in every respect, be in the same form, and in the same terms, as if it were being given to the benefit recipient; and

                     (b)  may be given to the correspondence nominee personally or by post or in any other manner approved by the Secretary.

             (3)  If:

                     (a)  under subsection (1), the Secretary gives a notice (the nominee notice) to a benefit recipient’s correspondence nominee; and

                     (b)  the Secretary afterwards gives the benefit recipient a notice that:

                              (i)  is expressed to be given under the same provision of the social security law as the nominee notice; and

                             (ii)  makes the same requirement of the benefit recipient as the nominee notice;

section 123J ceases to have effect in relation to the nominee notice.

             (4)  If:

                     (a)  under subsection (1), the Secretary gives a notice (the nominee notice) to a benefit recipient’s correspondence nominee; and

                     (b)  the Secretary has already given to the benefit recipient a notice that:

                              (i)  is expressed to be given under the same provision of the social security law as the nominee notice; and

                             (ii)  makes the same requirement of the benefit recipient as the nominee notice;

section 123J does not have effect in relation to the nominee notice.

123J  Compliance by correspondence nominee

             (1)  If, under section 123I, a notice is given to a benefit recipient’s correspondence nominee, the following paragraphs have effect:

                     (a)  for the purposes of the social security law, other than this Part, the notice is taken:

                              (i)  to have been given to the benefit recipient; and

                             (ii)  to have been so given on the day on which the notice was given to the correspondence nominee;

                     (b)  any requirement that the notice makes of the benefit recipient may be satisfied by the correspondence nominee;

                     (c)  any act done by the correspondence nominee for the purpose of satisfying a requirement of the notice has effect, for the purposes of the social security law (other than Part 6 of this Act), as if it had been done by the benefit recipient;

                     (d)  if the correspondence nominee fails to satisfy a requirement of the notice, the benefit recipient is taken, for the purposes of the social security law, to have failed to comply with the requirement;

                     (e)  for the purposes of determining whether anything done by the correspondence nominee constitutes compliance with the notice, the social security law has effect as if a reference in the notice to the benefit recipient becoming aware that a specified event or change of circumstances is likely to occur were a reference to the correspondence nominee becoming so aware.

             (2)  In order to avoid doubt, and without limiting subsection (1), it is declared as follows:

                     (a)  if the notice requires the benefit recipient to inform the Department of a matter within a specified period and the correspondence nominee informs the Department of the matter within that period in accordance with the notice, the benefit recipient is taken, for the purposes of the social security law, to have complied with the requirement set out in the notice;

                     (b)  if the notice requires the benefit recipient to give a statement about a matter, or produce a document, to the Department within a specified period and the correspondence nominee gives a statement about that matter, or produces the document, as the case may be, to the Department within that period in accordance with the notice, the benefit recipient is taken, for the purposes of the social security law, to have complied with the requirement set out in the notice;

                     (c)  if the notice requires the benefit recipient to inform the Department of a matter within a specified period and the correspondence nominee does not inform the Department of the matter within that period in accordance with the notice, the benefit recipient is taken, for the purposes of the social security law, to have failed to comply with the requirement set out in the notice;

                     (d)  if the notice requires the benefit recipient to give a statement about a matter, or produce a document, to the Department within a specified period and the correspondence nominee does not give a statement about that matter, or produce the document, as the case may be, to the Department within that period in accordance with the notice, the benefit recipient is taken, for the purposes of the social security law, to have failed to comply with the requirement set out in the notice.

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

             (1)  The Secretary may give a nominee of a benefit recipient a notice that requires the nominee to inform the Department if:

                     (a)  either:

                              (i)  an event or change of circumstances occurs; or

                             (ii)  the nominee becomes aware that an event or change of circumstances is likely to occur; and

                     (b)  the event or change of circumstances is likely to affect:

                              (i)  the ability of the nominee to act as the payment nominee or correspondence nominee of the benefit recipient, as the case may be; or

                             (ii)  the ability of the Secretary to give notices to the nominee under this Act; or

                            (iii)  the ability of the nominee to comply with notices given to the nominee by the Secretary under this Act.

             (2)  Subject to subsection (3), a notice under subsection (1):

                     (a)  must be in writing; and

                     (b)  may be given personally or by post or by any other means approved by the Secretary; and

                     (c)  must specify how the nominee is to give the information to the Department; and

                     (d)  must specify the period within which the nominee is to give the information to the Department.

             (3)  A notice under subsection (1) is not ineffective merely because it fails to comply with paragraph (2)(c).

             (4)  Subject to subsection (5), the period specified under paragraph (2)(d) must not end earlier than 14 days after:

                     (a)  the day on which the event or change of circumstances occurs; or

                     (b)  the day on which the nominee becomes aware that the event or change of circumstances is likely to occur.

             (5)  If a notice requires the nominee to inform the Department of any proposal by the nominee to leave Australia, subsection (4) does not apply to that requirement.

             (6)  This section extends to:

                     (a)  acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

                     (b)  all persons, irrespective of their nationality or citizenship.

123L  Statement by payment nominee regarding disposal of money

             (1)  The Secretary may give the payment nominee of a benefit recipient a notice that requires the nominee to give the Department a statement giving particulars of the disposal by the nominee of money paid under the social security law to the nominee on behalf of the benefit recipient.

             (2)  Subject to subsection (3), a notice under subsection (1):

                     (a)  must be in writing; and

                     (b)  may be given personally or by post or by any other means approved by the Secretary; and

                     (c)  must specify how the nominee is to give the statement to the Department; and

                     (d)  must specify the period within which the nominee is to give the statement to the Department.

             (3)  A notice under subsection (1) is not ineffective merely because it fails to comply with paragraph (2)(c).

             (4)  The period specified under paragraph (2)(d) must not end earlier than 14 days after the day on which the notice is given.

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

             (6)  A nominee must not refuse or fail to comply with a notice under subsection (1).

Penalty:  60 penalty units.

             (7)  Subsection (6) applies only to the extent to which the person is capable of complying with the notice.

             (8)  Subsection (6) does not apply if the person has a reasonable excuse.

             (9)  An offence against subsection (6) is an offence of strict liability.

           (10)  This section extends to:

                     (a)  acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

                     (b)  all persons, irrespective of their nationality or citizenship.


 

Division 5Other matters

123M  Protection of principal against liability for actions of nominee

                   Nothing in this Part has the effect of rendering a person guilty of an offence against this Act in respect of any act or omission of the person’s correspondence nominee.

123N  Protection of nominee against criminal liability

             (1)  A nominee is not subject to any criminal liability under the social security law in respect of:

                     (a)  any act or omission of the principal; or

                     (b)  anything done, in good faith, by the nominee in his or her capacity as nominee.

             (2)  This section has effect subject to section 123L.

123O  Duty of nominee to principal

             (1)  It is the duty of a person who is the payment or correspondence nominee of another person at all times to act in the best interests of the principal.

             (2)  A nominee does not commit a breach of the duty imposed by subsection (1) by doing an act if, when the act is done, there are reasonable grounds for believing that it is in the best interests of the principal that the act be done.

             (3)  A nominee does not commit a breach of the duty imposed by subsection (1) by refraining from doing an act if, at the relevant time, there are reasonable grounds for believing that it is in the best interests of the principal that the act be not done.

123P  Saving of Secretary’s powers of revocation

                   Nothing in this Part is to be taken to be an expression of a contrary intention for the purposes of subsection 33(3) of the Acts Interpretation Act 1901.

123Q  Saving of Secretary’s powers to give notices to principal

                   Nothing in this Part is intended in any way to limit or affect the Secretary’s powers under other provisions of the social security law to give notices to, or make requirements of, a person who has a nominee.

123R  Notification of nominee where notice given to principal

                   If, under a provision of the social security law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee, the Secretary may inform the correspondence nominee of the giving of the notice and of the terms of the notice.

123S  Right of nominee to attend with principal

             (1)  If:

                     (a)  under a provision of the social security law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee; and

                     (b)  the notice requires the person:

                              (i)  to attend the Department; or

                             (ii)  to attend a particular place; and

                     (c)  the Secretary informs the person’s correspondence nominee of the giving of the notice;

the correspondence nominee may attend the Department or place, as the case may be, with the person if the person so wishes.

             (2)  If:

                     (a)  under a provision of the social security law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee; and

                     (b)  the notice requires the person to undergo a medical, psychiatric or psychological examination;

the correspondence nominee may accompany the person while the examination is being conducted:

                     (c)  if the person so wishes; and

                     (d)  to the extent to which the person conducting the examination consents.

             (3)  If a person’s correspondence nominee is a body corporate, the last reference in subsection (1) or (2) to the correspondence nominee is to be read as a reference to an officer or employee of the correspondence nominee.


 

Part 4Review of decisions

Division 1Effect of Part

124  Application of Part to decisions under repealed laws

                   This Part applies as if a decision under:

                     (a)  the 1947 Act; or

                     (b)  the 1991 Act as in force immediately before the commencement of this Part;

were a decision under the social security law.

125  Decisions by officers under instruments

                   For the purposes of this Part, a decision made by an officer under an instrument (other than regulations or a disallowable instrument) made or issued under this Act or the 1991 Act is taken to be a decision under the social security law.


 

Division 2Internal review

126  Review of decisions by Secretary

             (1)  The Secretary may review:

                     (a)  subject to subsection (2), a decision of an officer under the social security law; or

                     (c)  a decision of an officer under the Farm Household Support Act 1992; or

                     (e)  a decision under section 44-24 of the Aged Care Act 1997 by the Secretary or by a person to whom the Secretary has sub-delegated power under subsection 96-2(7) of that Act;

if the Secretary is satisfied that there is sufficient reason to review the decision.

             (2)  The Secretary may review a decision:

                     (a)  whether or not any person has applied for review of the decision; and

                     (b)  even though an application has been made to the Social Security Appeals Tribunal or the Administrative Appeals Tribunal for review of the decision.

             (3)  The Secretary may:

                     (a)  affirm a decision; or

                     (b)  vary a decision; or

                     (c)  set a decision aside and substitute a new decision.

             (4)  If:

                     (a)  the Secretary sets a decision aside under subsection (3); and

                     (b)  the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;

the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law.

127  Decisions that are not reviewable by the Secretary

             (1)  The Secretary may not, on an application under section 129, review a decision made by the Secretary himself or herself.

             (2)  The Secretary may not review a decision made by the Employment Secretary:

                     (b)  declaring, under section 28 of the 1991 Act, a program of work to be an approved program of work for income support payment.

             (3)  The Secretary may not review a decision made by the Minister for Agriculture, Fisheries and Forestry or the Secretary to the Department of Agriculture, Fisheries and Forestry under the Farm Household Support Act 1992.

128  Notice to Executive Director or AAT Registrar

             (1)  If:

                     (a)  the Secretary makes a decision under subsection 126(3); and

                     (b)  at the time when the Secretary makes the decision, a person has applied to the Social Security Appeals Tribunal for review of the decision that was reviewed by the Secretary;

the Secretary must give the Executive Director written notice of the Secretary’s decision under subsection 126(3).

             (2)  If:

                     (a)  the Secretary makes a decision under subsection 126(3); and

                     (b)  at the time when the Secretary makes the decision, a person has applied to the Administrative Appeals Tribunal for review of the decision that was reviewed by the Secretary;

the Secretary must give the Registrar of the Administrative Appeals Tribunal written notice of the Secretary’s decision under subsection 126(3).

129  Application for review

             (1)  Subject to subsections (3) and (4), a person affected by:

                     (a)  a decision of an officer under the social security law; or

                     (c)  a decision of an officer under the Farm Household Support Act 1992; or

                     (e)  a decision under section 44-24 of the Aged Care Act 1997 by the Secretary or by a person to whom the Secretary has sub-delegated power under section 96-2(7) of that Act;

may apply to the Secretary for review of the decision.

             (3)  If:

                     (a)  an officer makes a decision under the social security law in relation to pension bonus; and

                     (b)  notice is given to the person concerned;

the person is not entitled to make an application under subsection (1) for review of the decision more than 13 weeks after the giving of the notice.

             (4)  A person may not apply under subsection (1) for review of:

                     (a)  a decision made by the Secretary himself or herself; or

                     (b)  a decision under subparagraph (2)(b)(i) regarding the information to be given to a person under that subparagraph; or

                     (c)  a decision made by the Employment Secretary:

                              (i)  under section 28 of the 1991 Act; or

                             (ii)  approving a course of study or a labour market program; or

                            (iii)  exempting a person from the application of a provision of the social security law; or

                     (d)  a decision made by the Minister for Agriculture, Fisheries and Forestry or the Secretary to the Department of Agriculture, Fisheries and Forestry under the Farm Household Support Act 1992; or

                     (e)  a decision made by the Health Secretary under or in relation to the social security law; or

                      (f)  a decision made by the CEO himself or herself in the exercise of a delegated power.

             (5)  A reference in this section to a decision of an officer under the social security law includes a reference to a determination that the Secretary is taken, by virtue of a provision of the social security law, to have made.

130  Withdrawal of application

             (1)  A person who has applied for review of a decision may withdraw the application at any time before the review has been completed.

             (2)  If an application for review of a decision is withdrawn, the application is taken never to have been made.

             (3)  An application may be withdrawn orally or in writing or in any other manner approved by the Secretary.

131  Secretary may continue payment pending outcome of application for review

             (1)  Subject to subsection (2), if:

                     (a)  an adverse decision is made in relation to a social security payment; and

                     (b)  the adverse decision:

                              (i)  depends on the exercise of a discretion, or the holding of an opinion, by a person; or

                            (ia)  would result in the application of a participation agreement breach non-payment period; or

                             (ii)  would result in the application of an activity test non-payment period; and

                     (c)  a person applies to the Secretary under section 129 for review of the adverse decision;

the Secretary may declare that the payment of the social security payment is to continue pending the determination of the review as if the adverse decision had not been made.

             (2)  Subsection (1) does not apply in the case of a decision to which section 133 or 134 applies.

             (3)  A declaration under subsection (1) must be by notice in writing.

             (4)  While a declaration under subsection (1) is in force in relation to an adverse decision, the social security law (other than this Part) applies as if the adverse decision had not been made.

             (5)  A declaration under subsection (1) in relation to an adverse decision:

                     (a)  takes effect on the day on which it is made or on such earlier day (if any) as is specified in the declaration; and

                     (b)  ceases to have effect if:

                              (i)  the application for review is withdrawn; or

                             (ii)  a decision is made by the Secretary on the review of the adverse decision; or

                            (iii)  the declaration is revoked by the Secretary.

             (6)  A reference in subsection (1) to a person’s holding of an opinion is a reference to the person’s holding that opinion, whether or not the social security law expressly requires the opinion to be held before the decision concerned is made.

             (7)  In this section:

adverse decision, in relation to a social security payment, means:

                     (a)  a decision to cancel or suspend the social security payment; or

                     (b)  a decision to reduce the rate of the social security payment.

participation agreement breach non-payment period, in relation to a person who is the subject of an adverse decision, means a period that is determined under section 500ZA of the 1991 Act to be a participation agreement breach non-payment period applicable to that person.

132  Guidelines for exercise of Secretary’s power to continue payment

             (1)  The Minister, by determination in writing:

                     (a)  is to determine guidelines for the exercise of the Secretary’s power to make declarations under section 131 in relation to social security payments to persons who are subject to a participation agreement breach non-payment period or to an activity test non-payment period; and

                     (b)  may revoke or vary those guidelines.

             (2)  A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

132A  Automatic payment if review of section 501C terms decision sought

             (1)  This section applies to a decision to give a notice under section 501C of the 1991 Act because of a person’s failure to agree to terms of a participation agreement proposed by the Secretary.

             (2)  If:

                     (a)  a person applies under section 129 for review of a decision to which this section applies; and

                     (b)  the person makes the application within 14 days after being notified of the decision;

the following provisions have effect:

                     (c)  payment of parenting payment is to be made, pending the determination of the review, as if the participation agreement had not been required;

                     (d)  if payment of the parenting payment had ceased for a period before the person applied for the review—arrears of parenting payment are payable to the person for the period in spite of section 118;

                     (e)  the social security law (other than this Division) applies as if the participation agreement had not been required.

             (3)  Subsection (2) ceases to have effect if the application for review is withdrawn.

             (4)  Subsection (2) ceases to have effect when the review of the decision is determined.

133  Automatic payment if review of section 544C terms decision sought

             (1)  This section applies to a decision to give a notice under section 544C of the 1991 Act because of a person’s failure to agree to terms of a Youth Allowance Activity Agreement proposed by the Secretary.

             (2)  If:

                     (a)  a person applies under section 129 for review of a decision to which this section applies; and

                     (b)  the person makes the application within 14 days after being notified of the decision;

the following provisions have effect:

                     (c)  payment of youth allowance is to be made, pending the determination of the review, as if the Youth Allowance Activity Agreement had not been required;

                     (d)  if payment of the allowance had ceased for a period before the person applied for the review—arrears of allowance are payable to the person for the period in spite of section 118;

                     (e)  the social security law (other than this Division) applies as if the Youth Allowance Activity Agreement had not been required.

             (3)  Subsection (2) ceases to have effect if:

                     (a)  the application for review is withdrawn; or

                     (b)  the review of the decision is determined.

134  Automatic payment if review of section 607 terms decision sought

             (1)  This section applies to a decision to give a notice under section 607 of the 1991 Act because of a person’s failure to agree to terms of a Newstart Activity Agreement proposed by the Secretary.

             (2)  If:

                     (a)  a person applies under section 129 for review of a decision to which this section applies; and

                     (b)  the person makes the application within 14 days after being notified of the decision;

the following provisions have effect:

                     (c)  payment of newstart allowance is to continue, pending the determination of the review, as if the Newstart Activity Agreement had not been required;

                     (d)  if payment of the allowance had ceased for a period before the person applied for the review—arrears of allowance are payable to the person for the period despite section 118;

                     (e)  the social security law (other than this Division) has effect as if the Newstart Activity Agreement had not been required.

             (3)  Subsection (2) ceases to have effect if the application for review is withdrawn.

             (4)  Subsection (2) ceases to have effect when the review of the decision is determined.

134A  Automatic payment if review sought of decision under section 731N of the 1991 Act

             (1)  This section applies to a decision to give a notice under section 731N of the 1991 Act because of a person’s failure to agree to terms of a Special Benefit Activity Agreement proposed by the Secretary.

             (2)  If:

                     (a)  a person applies under section 129 for review of a decision to which this section applies; and

                     (b)  the person makes the application within 14 days after being notified of the decision;

the following provisions have effect:

                     (c)  payment of special benefit is to continue, pending the determination of the review, as if the Special Benefit Activity Agreement had not been required;

                     (d)  if payment of special benefit had ceased for a period before the person applied for the review—arrears of special benefit are payable to the person for the period despite section 118;

                     (e)  the social security law (other than this Division) has effect as if the Special Benefit Activity Agreement had not been required.

             (3)  Subsection (2) ceases to have effect if the application for review is withdrawn.

             (4)  Subsection (2) ceases to have effect when the review of the decision is determined.

135  Review of decisions following application under section 129

             (1)  Subject to subsection (3) and subsection 127(1), if a person applies under section 129 for review of a decision, the Secretary, the CEO or an authorised review officer must:

                     (a)  review the decision; and

                     (b)  do one of the following:

                              (i)  affirm the decision;

                             (ii)  vary the decision;

                            (iii)  set the decision aside and substitute a new decision.

             (2)  In the case of an application for review of a decision made by an officer of the Employment Department as a delegate of the Secretary, the reference in subsection (1) to an authorised review officer is to be read as a reference to an authorised review officer who is an officer of that Department.

             (3)  An authorised review officer may not review a decision relating to the exercise of the Secretary’s power under section 182 of this Act.

             (5)  If:

                     (a)  a person sets aside a decision under subsection (1); and

                     (b)  the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;

the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law.

136  Notice of decision on review

                   If a person makes a decision under subsection 135(1), the person must give the applicant written notice of the decision.

137  Certain decisions not to be revived

             (1)  This section has effect if:

                     (a)  the Secretary makes a determination (the first determination) that:

                              (i)  a social security payment is granted or is payable to a person; or

                             (ii)  a social security payment is payable to a person at a particular rate; and

                     (b)  the Secretary makes a determination (the second determination):

                              (i)  cancelling the social security payment; or

                             (ii)  reducing the rate at which the social security payment is payable; and

                     (c)  notice of the second determination is given to the person; and

                     (d)  the person applies under section 129 for review of the second determination; and

                     (e)  the application is made more than 13 weeks after notice of the second determination was given; and

                      (f)  a decision (the review decision) is made by the Secretary, an authorised review officer, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal; and

                     (g)  the review decision, or the effect of the review decision, is:

                              (i)  to set aside the second determination; or

                             (ii)  to affirm a decision setting aside the second determination.

             (2)  This section has effect if:

                     (a)  the Secretary makes a determination (the first determination) that:

                              (i)  a social security payment is granted or is payable to a person; or

                             (ii)  a social security payment is payable to a person at a particular rate; and

                     (b)  the Secretary makes a determination (the second determination):

                              (i)  cancelling the social security payment; or

                             (ii)  reducing the rate at which the social security payment is payable; and

                     (c)  notice of the second determination is given to the person; and

                     (d)  the Secretary reviews the second determination under section 126 without any application under section 129 for review of the decision having been made; and

                     (e)  the decision of the Secretary on the review is to set aside the second determination; and

                      (f)  the decision on the review is made more than 13 weeks after notice of the second determination was given.

             (3)  This section has effect if:

                     (a)  the Secretary makes a determination (the first determination) that:

                              (i)  a person’s claim for a concession card is granted; or

                             (ii)  a person is qualified for a concession card; and

                     (b)  the Secretary makes a determination (the second determination) cancelling the concession card; and

                     (c)  notice of the second determination is given to the person; and

                     (d)  the person applies under section 129 for review of the second determination; and

                     (e)  the application is made more than 13 weeks after notice of the second determination was given; and

                      (f)  a decision (the review decision) is made by the Secretary, an authorised review officer, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal; and

                     (g)  the review decision, or the effect of the review decision, is:

                              (i)  to set aside the second determination; or

                             (ii)  to affirm a decision setting aside the second determination.

             (4)  This section has effect if:

                     (a)  the Secretary makes a determination (the first determination) that:

                              (i)  a person’s claim for a concession card is granted; or

                             (ii)  a person is qualified for a concession card; and

                     (b)  the Secretary makes a determination (the second determination) cancelling the concession card; and

                     (c)  notice of the second determination is given to the person; and

                     (d)  the Secretary reviews the second determination under section 126 without any application under section 129 for review of the declaration having been made; and

                     (e)  the decision of the Secretary on the review is to set aside the second determination; and

                      (f)  the decision is made more than 13 weeks after notice of the second determination was given.

             (5)  If this section has effect:

                     (a)  the second determination does not become void from the time when it was made; and

                     (b)  the mere setting aside of the second determination does not of itself revive the first determination.

             (6)  For the purposes of this section, a person is taken to have applied for review of a determination (the primary determination) if:

                     (a)  the person applies for review of another determination or decision; and

                     (b)  a review of the primary determination is necessary to resolve the issues raised by the review of that other determination or decision.

138  Notification of further rights of review

             (1)  If a person (the decision-maker) gives another person notice under section 136, the notice must include:

                     (a)  a statement to the effect that the other person may, subject to the social security law, apply to the Social Security Appeals Tribunal for review of the decision-maker’s decision; and

                     (b)  a statement about the decision-maker’s decision that:

                              (i)  sets out the reasons for the decision; and

                             (ii)  sets out the findings by the decision-maker on material questions of fact; and

                            (iii)  refers to the evidence or other material on which those findings were based; and

                     (c)  a statement to the effect that, if the other person is dissatisfied with the decision of the Social Security Appeals Tribunal, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision of the Social Security Appeals Tribunal.

             (2)  A contravention of subsection (1) in relation to notice of a decision does not affect the validity of the decision.


 

Division 3Review by the Social Security Appeals Tribunal

Subdivision APreliminary

139  Continuance of Social Security Appeals Tribunal

             (1)  The Social Security Appeals Tribunal continued in existence by the 1991 Act is further continued in existence by this Act.

             (2)  Provisions relating to the constitution and membership, and the organisation of the business of, the Social Security Appeals Tribunal, together with certain saving provisions, are to be found in Schedule 3.

Subdivision BReview by SSAT

140  Application of Division

             (1)  This Division applies to:

                     (a)  all decisions of an officer under the social security law, including:

                              (i)  a decision under section 606 of the 1991 Act to the extent to which it relates to the terms of a Newstart Activity Agreement that is in force; or

                             (ii)  a decision under section 731M of the 1991 Act to the extent to which it relates to the terms of a Special Benefit Activity Agreement that is in force; and

                    (aa)  a decision under section 501B of the 1991 Act to the extent to which it relates to the terms of a participation agreement that is in force; and

                     (b)  a decision under section 544B of the 1991 Act to the extent to which it relates to the terms of a Youth Allowance Activity Agreement that is in force; and

                     (d)  all decisions of an officer under the Farm Household Support Act 1992; and

                      (f)  all decisions under section 44-24 of the Aged Care Act 1997 by the Secretary, or by a person to whom the Secretary has sub-delegated power under subsection 96-2(7) of that Act.

             (2)  A reference in this section to a decision of an officer under the social security law includes a reference to a determination that the Secretary is taken, by virtue of a provision of the social security law, to have made.

141  SSAT objective

                   In carrying out its functions under this Act, the SSAT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

142  Application for review by SSAT

             (1)  Subject to section 144, if:

                     (a)  a decision has been reviewed by the Secretary, the CEO or an authorised review officer under section 126 or 135; and

                     (b)  the decision has been affirmed, varied or set aside;

a person whose interests are affected by the decision of the Secretary, the CEO or the authorised review officer may apply to the SSAT for review of that decision.

             (2)  Subject to section 144, if a decision has been made by the Secretary himself or herself or by the CEO himself or herself, a person whose interests are affected by the decision may apply to the SSAT for review of the decision.

             (4)  For the purposes of subsection (1), the decision made by the Secretary, the CEO or the authorised review officer is taken to be:

                     (a)  if the Secretary, the CEO or the authorised review officer affirms a decision—that decision as affirmed; and

                     (b)  if the Secretary, the CEO or the authorised review officer varies a decision—that decision as varied; and

                     (c)  if the Secretary, the CEO or the authorised review officer sets a decision aside and substitutes a new decision—the new decision.

             (5)  For the purposes of subsection (2), if:

                     (a)  an application has been made under subsection 129(1) for review of a decision made by the Secretary himself or herself or the CEO himself or herself; and

                     (b)  before the application under subsection 129(1) was made, the Secretary or CEO had reviewed the decision under section 126;

the decision made by the Secretary or CEO is taken to be:

                     (c)  if the Secretary or CEO had affirmed or varied the decision—that decision as affirmed or varied; and

                     (d)  if the Secretary or CEO had set the decision aside and substituted a new decision—the new decision.

143  Application requirement for certain decisions

          (1A)  The SSAT may only review a decision under section 501B of the 1991 Act (to the extent to which it relates to the terms of a participation agreement that is in force) if the application is expressed to be an application for review of that decision.

             (1)  The SSAT may only review a decision under section 544B of the 1991 Act (to the extent to which it relates to the terms of a Youth Allowance Activity Agreement that is in force) if the application is expressed to be an application for review of that decision.

             (2)  The SSAT may only review a decision under section 606 of the 1991 Act (to the extent to which it relates to the terms of a Newstart Activity Agreement that is in force) if the application is expressed to be an application for review of that decision.

             (3)  The SSAT may only review a decision under section 731M of the 1991 Act (to the extent to which it relates to the terms of a Special Benefit Activity Agreement that is in force) if the application is expressed to be an application for review of that decision.

144  Non-reviewable decisions

                   The SSAT cannot review any of the following decisions:

                     (a)  a decision of an RAS authority to refuse to certify a person as a financial hardship farmer under section 26 of the 1991 Act;

                     (b)  a decision of an RAS authority to refuse to certify an asset as an unrealisable asset of a financial hardship farmer under section 27 of the 1991 Act;

                     (c)  a decision of the Minister for Agriculture, Fisheries and Forestry or the Secretary to the Department of Agriculture, Fisheries and Forestry under the Farm Household Support Act 1992;

                     (d)  a decision under section 36 of the 1991 Act;

                    (da)  a decision under section 1061ZZGC of the 1991 Act;

                     (e)  a decision under a provision dealing with the approval by the Employment Secretary of a course, labour market program, program of work for unemployment payment or rehabilitation program;

                      (f)  a decision under section 16 of this Act;

                     (g)  a decision under section 58 or 59 to pay an amount to a person;

                     (h)  a decision to make a payment under section 75 of this Act;

                      (i)  a decision, under subsection 59(3) of this Act, to grant a claim for a pension bonus after the claimant has died;

                      (j)  a decision under subsection 7A(2) or paragraph 15(b) of the Farm Household Support Act 1992;

                     (k)  a decision to give a notice under Subdivision B of Division 6 of Part 3 of this Act;

                      (l)  a decision under subparagraph 129(2)(b)(i) regarding the information that is to be given to a person under that paragraph;

                    (m)  a decision under section 131 or 145 of this Act;

                     (n)  a decision under section 192, 193, 194 or 195 of this Act;

                     (o)  a decision under section 238 of this Act;

                     (p)  a decision of the Secretary:

                              (i)  determining, under subsection 1100(2) of the 1991 Act, that it is not appropriate for that subsection to apply in respect of a payment or a class or kind of payments; or

                             (ii)  determining, in accordance with section 1100 of the 1991 Act, that a rate of exchange is appropriate for the calculation of the value in Australian currency of an amount (the foreign amount) received by a person in a foreign currency if that rate does not differ by more than 5% from the rate of exchange that was applied when the person received Australian currency for the foreign amount;

                      (s)  a decision relating to the Secretary’s power under section 182 of this Act to settle proceedings before the AAT.

145  Secretary may continue payment pending outcome of application for review

             (1)  If:

                     (a)  an adverse decision is made in relation to a social security payment; and

                     (b)  the adverse decision:

                              (i)  depends on the exercise of a discretion by a person or the holding of an opinion by a person; or

                            (ia)  would result in the application of a participation agreement breach non-payment period; or

                             (ii)  would result in the application of an activity test non-payment period; and

                     (c)  a person applies to the SSAT under subsection 142(1) or (2) for review of the adverse decision;

the Secretary may declare that payment of the social security payment is to continue, pending the determination of the review, as if the adverse decision had not been made.

             (2)  A declaration must be by notice in writing.

             (3)  While a declaration under subsection (1) is in force in relation to an adverse decision, the social security law (other than this Division) applies as if the adverse decision had not been made.

             (4)  A declaration under subsection (1) in relation to an adverse decision:

                     (a)  takes effect on the day on which the declaration is made or on such earlier day (if any) as is specified in the declaration; and

                     (b)  ceases to have effect if:

                              (i)  the application to the SSAT for review of the adverse decision is withdrawn; or

                             (ii)  the review of the adverse decision is determined by the SSAT; or

                            (iii)  the declaration is revoked by the Secretary.

             (5)  A reference in subsection (1) to a person’s holding of an opinion is a reference to the person’s holding that opinion, whether or not the social security law expressly requires the opinion to be held before the decision concerned is made.

             (6)  In this section:

adverse decision, in relation to a social security payment, means:

                     (a)  a decision to cancel or suspend the social security payment; or

                     (b)  a decision to reduce the rate of the social security payment.

146  Guidelines for exercise of Secretary’s power to continue payment

             (1)  The Minister, by determination in writing:

                     (a)  is to set guidelines for the exercise of the Secretary’s power to make a declaration under subsection 145(1):

                              (i)  affecting payments to persons who are subject to a participation agreement breach non-payment period; or

                             (ii)  affecting payments to persons who are subject to an activity test non-payment period; and

                     (b)  may revoke or vary those guidelines.

             (2)  A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

146A  Automatic payment if review of decision under section 501C of the 1991 Act sought

             (1)  If:

                     (a)  a decision has been made to give a notice under section 501C of the 1991 Act because of a person’s failure to agree to terms of a participation agreement proposed by the Secretary; and

                     (b)  the person applies to the Social Security Appeals Tribunal under section 142 for review of the decision; and

                     (c)  the person makes the application within 14 days after being notified of the decision;

the following provisions have effect:

                     (d)  payment of parenting payment is to be made, pending the determination of the review, as if the participation agreement had not been required;

                     (e)  if payment of parenting payment had ceased for a period before the person applied for the review—arrears of parenting payment are payable to the person for the period, in spite of section 118;

                      (f)  the social security law (other than this Division) has effect as if the participation agreement had not been required.

             (2)  Subsection (1) ceases to have effect if:

                     (a)  the application for review is withdrawn; or

                     (b)  the review of the decision is determined.

147  Automatic payment if review of decision under section 544C of the 1991 Act sought

             (1)  If:

                     (a)  a decision has been made, whether before or after the commencement of this paragraph, to give a notice under section 544C of the 1991 Act because of a person’s failure to agree to terms of a Youth Allowance Activity Agreement proposed by the Secretary; and

                     (b)  a person applies to the Social Security Appeals Tribunal under section 142 for review of the decision; and

                     (c)  the person makes the application within 14 days after being notified of the decision;

the following provisions have effect:

                     (d)  payment of the youth allowance is to be made, pending the determination of the review, as if the Agreement had not been required;

                     (e)  if payment of the allowance had ceased for a period before the person applied for the review—arrears of allowance are payable to the person for the period, in spite of section 118;

                      (f)  the social security law (other than this Division) has effect as if the Agreement had not been required.

             (2)  Subsection (1) ceases to have effect if:

                     (a)  the application for review is withdrawn; or

                     (b)  the review of the decision is determined.

148  Automatic payment if review of decision under section 607 of the 1991 Act sought

             (1)  If:

                     (a)  a decision has been made, whether before or after the commencement of this paragraph, to give a notice under section 607 of the 1991 Act because of a person’s failure to agree to terms of a Newstart Activity Agreement proposed by the Secretary; and

                     (b)  a person applies to the SSAT under subsection 142(1) for review of the decision; and

                     (c)  the person makes the application within 14 days after being notified of the decision;

the following provisions have effect:

                     (d)  payment of the newstart allowance is to be made, pending the determination of the review, as if the agreement had not been required;

                     (e)  if payment of the allowance had ceased for a period before the person applied for the review—arrears of allowance are payable to the person for the period, in spite of section 118;

                      (f)  the social security law (other than this Division) has effect as if the agreement had not been required.

             (2)  Subsection (1) ceases to have effect if:

                     (a)  the application for review is withdrawn; or

                     (b)  the review of the decision is determined.

148A  Automatic payment if review of decision under section 731N of the 1991 Act sought

             (1)  If:

                     (a)  a decision is made to give a notice under section 731N of the 1991 Act because of a person’s failure to agree to terms of a Special Benefit Activity Agreement proposed by the Secretary; and

                     (b)  a person applies to the SSAT under subsection 142(1) for review of the decision; and

                     (c)  the person makes the application within 14 days after being notified of the decision;

the following provisions have effect:

                     (d)  payment of special benefit is to be made, pending the determination of the review, as if the agreement had not been required;

                     (e)  if payment of special benefit had ceased for a period before the person applied for the review—arrears of special benefit are payable to the person for the period, in spite of section 118;

                      (f)  the social security law (other than this Division) has effect as if the agreement had not been required.

             (2)  Subsection (1) ceases to have effect if:

                     (a)  the application for review is withdrawn; or

                     (b)  the review of the decision is determined.

149  SSAT review powers

             (1)  If a person applies to the SSAT for review of a decision (other than a decision referred to in subsection (5)), the SSAT must:

                     (a)  affirm the decision; or

                     (b)  vary the decision; or

                     (c)  set the decision aside and:

                              (i)  substitute a new decision; or

                             (ii)  send the matter back to the Secretary or the CEO, as the case requires, for reconsideration in accordance with any directions or recommendations of the SSAT.

             (2)  If the SSAT sets a decision aside and substitutes for it a decision that a person is entitled to a social security payment (other than pension bonus), the SSAT must:

                     (a)  assess the rate at which the social security payment is to be paid to the person; or

                     (b)  ask the Secretary or the CEO, as the case requires, to assess the rate at which the social security payment is to be paid to the person.

             (3)  If the SSAT sets a decision aside and substitutes for it a decision that a person is entitled to a pension bonus, the SSAT must:

                     (a)  assess the amount of the pension bonus that is to be paid to the person; or

                     (b)  ask the Secretary to assess the amount of the pension bonus that is to be paid to the person.

             (4)  If:

                     (a)  the SSAT sets a decision aside under subsection (1); and

                     (b)  the Secretary or the SSAT (as the case may be), is satisfied that an event that did not occur would have occurred if the decision had not been made;

the Secretary or the SSAT, as the case requires, may, if satisfied that it is reasonable to do so, direct that the event is to be taken, for the purposes of the social security law, to have occurred.

             (5)  This section does not apply to:

                    (aa)  a decision under section 501B of the 1991 Act to the extent to which it relates to the terms of a participation agreement that is in force; or

                     (a)  a decision under section 544B of the 1991 Act to the extent to which it relates to the terms of a Youth Allowance Activity Agreement that is in force; or

                     (b)  a decision under section 606 of the 1991 Act to the extent to which it relates to the terms of a Newstart Activity Agreement that is in force; or

                     (c)  a decision under section 731M of the 1991 Act to the extent to which it relates to the terms of a Special Benefit Activity Agreement that is in force.

150  SSAT review powers (Activity Agreement decisions)

                   If a person applies to the SSAT for review of:

                    (aa)  a decision under section 501B of the 1991 Act to the extent to which it relates to the terms of a participation agreement that is in force; or

                     (a)  a decision under section 525B of the 1991 Act as previously in force to the extent to which it related to the terms of a Job Search Activity Agreement that was previously in force; or

                     (b)  a decision under section 544B of that Act to the extent to which it relates to the terms of a Youth Allowance Activity Agreement that is in force; or

                     (c)  a decision under section 606 of that Act to the extent to which it relates to the terms of a Newstart Activity Agreement that is in force; or

                    (ca)  a decision under section 731M of that Act to the extent to which it relates to the terms of a Special Benefit Activity Agreement that is in force;

the SSAT must:

                     (d)  affirm the decision; or

                     (e)  set aside the decision and send the matter back to the Secretary or the CEO, as the case requires, for reconsideration in accordance with any recommendations of the Tribunal.

151  Powers of the SSAT

             (1)  Subject to subsection (2), the SSAT may, for the purpose of reviewing a decision under the social security law, exercise all the powers and discretions that are conferred by the social security law on the Secretary.

             (2)  The reference in subsection (1) to powers and discretions conferred by the social security law does not include a reference to a power or discretion conferred by:

                     (a)  a provision dealing with the form and place of lodgment of a claim; or

                     (b)  a provision dealing with the manner of payment of a social security payment; or

                    (ba)  section 1061ZZGC of the 1991 Act; or

                     (c)  section 1233 of the 1991 Act; or

                     (d)  a provision dealing with the giving of a notice requiring information; or

                     (e)  section 1100 of the 1991 Act; or

                     (g)  section 131 or 145 of this Act; or

                     (h)  a provision dealing with the imposition of requirements before the grant of a social security payment; or

                      (i)  a provision dealing with the deduction of amounts from payments of a social security payment for tax purposes.

             (3)  The SSAT may, for the purpose of reviewing a decision under the Health Insurance Act 1973, exercise all the powers and discretions conferred by that Act on the Secretary.

             (4)  Nothing in this section applies in relation to the review of:

                    (aa)  a decision under section 501B of the 1991 Act to the extent to which it relates to the terms of a participation agreement that is in force; or

                     (a)  a decision under section 544B of the 1991 Act to the extent to which it relates to the terms of a Youth Allowance Activity Agreement that is in force; or

                     (b)  a decision under section 606 of the 1991 Act to the extent to which it relates to the terms of a Newstart Activity Agreement that is in force; or

                     (c)  a decision under section 731M of the 1991 Act to the extent to which it relates to the terms of a Special Benefit Activity Agreement that is in force.

152  Date of effect of SSAT decisions (other than Activity Agreement decisions)

             (1)  Subject to subsections (2) and (3), a decision of the SSAT comes into operation immediately on the giving of the decision.

             (2)  The SSAT may specify in a decision that the decision is not to come into operation until a later day specified in the decision and, if it does so, the decision comes into operation on that later day.

             (3)  Subject to subsections (4) and (5), if the SSAT:

                     (a)  varies a decision under review; or

                     (b)  sets aside a decision under review and substitutes a new decision;

the decision as varied or the new decision (as the case may be) has effect, or is to be taken to have had effect, on and from the day on which the decision under review has or had effect.

             (4)  If:

                     (a)  a person is given written notice of a decision under the social security law; and

                     (b)  the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and

                     (c)  the SSAT varies the decision or sets the decision aside and substitutes a new decision; and

                     (d)  the effect of the decision of the SSAT is:

                              (i)  to grant the person’s claim for a social security payment or a concession card; or

                             (ii)  to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or

                            (iii)  to increase the rate of the person’s social security payment;

the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.

             (5)  The SSAT may declare:

                     (a)  that subsection (3) does not apply to a decision by the SSAT on a review; and

                     (b)  that subsections (1) and (2) apply instead.

             (6)  This section does not apply to:

                    (aa)  a decision under section 501B of the 1991 Act to the extent to which it relates to the terms of a participation agreement that is in force; or

                     (a)  a decision under section 544B of that Act to the extent to which it relates to the terms of a Youth Allowance Activity Agreement that is in force; or

                     (b)  a decision under section 606 of the 1991 Act to the extent to which the decision relates to the terms of a Newstart Activity Agreement that is in force; or

                     (c)  a decision under section 731M of the 1991 Act to the extent to which the decision relates to the terms of a Special Benefit Activity Agreement that is in force.

153  Date of effect of SSAT decision (Activity Agreement decision)

             (1)  This section applies to:

                    (aa)  a decision under section 501B of the 1991 Act to the extent to which it relates to the terms of a participation agreement that is in force; and

                     (a)  a decision under section 544B of the 1991 Act to the extent to which it relates to the terms of a Youth Allowance Activity Agreement that is in force; and

                     (b)  a decision under section 606 of the 1991 Act to the extent to which the decision relates to the terms of a Newstart Activity Agreement that is in force; and

                     (c)  a decision under section 731M of the 1991 Act to the extent to which the decision relates to the terms of a Special Benefit Activity Agreement that is in force.

             (2)  Subject to subsection (3), a decision by the SSAT in relation to a decision to which this section applies comes into operation immediately on the giving of the decision.

             (3)  The SSAT may specify in a decision that the decision is not to come into operation until a later day specified in the decision and, if it does so, the decision comes into operation on that later day.

154  Application requirements

             (1)  A person may apply to the SSAT for review of a decision by:

                     (a)  sending or delivering a written application to:

                              (i)  an office of the SSAT; or

                             (ii)  an office of the Department; or

                            (iii)  if the decision was made by the CEO or an employee of the Agency—an office of the Agency; or

                     (b)  going to an office of the SSAT and making an oral application; or

                     (c)  contacting an office of the SSAT by telephone and making an oral application.

             (2)  If a person makes an oral application in accordance with paragraph (1)(b) or (c), the person receiving the oral application must make a written record of the details of the oral application and note on the record the day on which the application is made.

             (3)  If a written record of an oral application is made in accordance with subsection (2), Division 4 has effect as if the written record were a written application.

             (4)  An application may include a statement of the reasons for seeking a review of the decision.

155  Variation of decision before review completed

             (1)  If an officer varies a decision after an application has been made to the SSAT for review of the decision but before determination of the review, the application for review is to be treated as if it were an application for review of the decision as varied.

             (2)  If an officer sets a decision aside and substitutes a new decision after an application has been made to the SSAT for review of the original decision but before the determination of the review, the application for review is to be treated as if it were an application for review of the new decision.

             (3)  If:

                     (a)  a person applies to the SSAT for review of a decision; and

                     (b)  before determination of the review, an officer varies the decision or sets it aside and substitutes a new decision;

the person may either:

                     (c)  proceed with the application for review of the decision as varied or the new decision, as the case may be; or

                     (d)  withdraw the application under section 171.

156  Parties to SSAT review

             (1)  The parties to a review by the SSAT are:

                     (a)  the applicant; and

                     (b)  the Secretary; and

                     (c)  if the relevant decision was made by the CEO or an employee of the Agency in the exercise of a delegated power—the CEO; and

                     (d)  any other person who has been made a party to the review under subsection (4) or (5).

             (2)  If a person has applied under section 142 for review of a decision, any other person whose interests are affected by the decision may apply to the Executive Director to be made a party to the review.

             (3)  An application under subsection (2) must be in writing.

             (4)  The Executive Director may order that a person who has applied under subsection (2) be made a party to the review.


 

Division 4Procedures for review by the SSAT

Subdivision APreliminary procedures

157  Procedure on receipt of application for review by SSAT

             (1)  If an application under section 142 is sent or delivered to an office of the Department or the Agency, the Secretary must send the application to the Executive Director as soon as practicable and, in any case, not later than 7 days after the application is received at the office of the Department or the Agency, as the case may be.

             (2)  If:

                     (a)  an application under section 142 is sent or delivered to an office of the SSAT; or

                     (b)  the Secretary sends such an application to the Executive Director in accordance with subsection (1);

the Executive Director must give the applicant and the Secretary written notice that the application has been received.

             (3)  Within 28 days after receiving notice of the making of an application from the Executive Director, the Secretary must send to the Executive Director:

                     (a)  a statement about the decision under review that:

                              (i)  sets out the findings of fact made by the person who made the decision; and

                             (ii)  refers to the evidence on which those findings were based; and

                            (iii)  gives the reasons for the decision; and

                     (b)  the original or a copy of every document or part of a document that:

                              (i)  is in the possession, or under the control, of the Secretary; and

                             (ii)  relates to the applicant; and

                            (iii)  is relevant to the review of the decision.

             (4)  If the Executive Director asks the Secretary to send the statement and documents referred to in subsection (3) by a day earlier than the day fixed by that subsection, the Secretary must take reasonable steps to comply with the Executive Director’s request.

             (5)  If:

                     (a)  after the end of the period referred to in subsection (3) but before the determination of the review, the Secretary obtains possession of a document; and

                     (b)  the Secretary considers that the document or a part of the document is relevant to the review; and

                     (c)  a copy of the document or the part of the document has not been sent to the Executive Director in accordance with subsection (3);

the Secretary must send a copy of the document or the part of the document to an office of the SSAT as soon as practicable after obtaining possession of the document.

158  Parties to be given a statement about the decision under review

             (1)  The Executive Director must give each party (other than the Secretary) a copy of the statement referred to in paragraph 157(3)(a).

             (2)  The Executive Director may make an order directing a person who has received a copy of a statement in accordance with subsection (1):

                     (a)  not to disclose information in the statement; or

                     (b)  not to disclose information in the statement except in the circumstances or for the purposes specified in the order.

             (3)  An order under subsection (2) must be made by written notice given to the person to whom it is directed.

             (4)  A person must not contravene an order under subsection (2).

159  Arrangements for hearing of application

             (1)  If an application is made to the SSAT for review of a decision, the Executive Director must fix a day, time and place for the hearing of the application.

             (2)  If a declaration under section 145 is in force in relation to a decision, the Executive Director must take reasonable steps to ensure that the decision is reviewed as quickly as possible.

             (3)  The Executive Director must give the applicant and any other parties to the review written notice of the day, time and place fixed for the hearing of the application.

             (4)  The notice under subsection (3) must be given a reasonable time before the day fixed for the hearing.

160  Notice of application to person affected by decision

             (1)  If:

                     (a)  an application has been made to the SSAT for review of a decision; and

                     (b)  the Executive Director is satisfied that the interests of a person who is not a party to the review are affected by the decision;

the Executive Director must take reasonable steps to give the person written notice that an application has been made to the SSAT for review of the decision.

             (2)  The notice under subsection (1):

                     (a)  must be in writing; and

                     (b)  must include notification of the person’s right under section 156 to apply to the Executive Director to be added as a party to the review; and

                     (c)  may be given at any time before the determination of the review.

             (3)  The Executive Director must give each party to the review a copy of the notice.

Subdivision BHow the SSAT informs itself about the decision under review

161  Submissions to SSAT

             (1)  Subject to section 162, a party to a review of a decision may make oral or written submissions to the SSAT or both oral and written submissions.

             (2)  The Secretary or CEO may make written submissions to the SSAT.

             (3)  A party to a review of a decision may have another person make submissions to the SSAT on behalf of the party.

             (4)  The Executive Director may determine that submissions to the SSAT by a party or a party’s representative are to be made by telephone or by means of other electronic communications equipment.

             (5)  Without limiting subsection (4), the Executive Director may make a determination under subsection (4) in relation to an application if:

                     (a)  the application is urgent; or

                     (b)  the party lives in a remote area and unreasonable expense would be incurred if the party or the party’s representative had to travel to the place at which the hearing is to be held; or

                     (c)  the party has failed to attend the hearing and has not indicated that he or she intends to attend the hearing; or

                     (d)  the applicant is unable to attend the hearing because of illness or infirmity.

             (6)  If a party is not proficient in English, the Executive Director may give directions in relation to the use of an interpreter in connection with the hearing of the review.

             (7)  A reference in this section to a party does not include a reference to the Secretary or the CEO.

162  SSAT hearings on written submissions only

             (1)  The Executive Director may direct that a hearing be conducted without oral submissions from the parties if:

                     (a)  the Executive Director considers that the review hearing could be determined fairly on the basis of written submissions by the parties; and

                     (b)  all parties to the review consent to the hearing being conducted without oral submissions.

             (2)  If the Executive Director gives a direction under subsection (1), the Executive Director must give each of the parties to the review written notice:

                     (a)  informing the party of the direction; and

                     (b)  inviting the party to submit written submissions; and

                     (c)  specifying the address to which the written submissions are to be delivered; and

                     (d)  specifying the time within which the written submissions are to be delivered.

             (3)  The time specified under paragraph (2)(d) must be such as to allow a reasonable period for the parties to make written submissions.

             (4)  Despite subsection (1), the SSAT, as constituted for the hearing, may, if it thinks necessary after considering the written submissions made by the parties, make an order permitting the parties to make oral submissions to the SSAT at the hearing of the review.

             (5)  A reference in subsection (4) to a party does not include a reference to the Secretary or the CEO.

163  SSAT hearings without oral submissions by party

             (1)  If a party to a review has informed the Executive Director that the party does not intend to make oral submissions to the SSAT, the SSAT may proceed to hear the application for review without oral submissions from the party.

             (2)  If:

                     (a)  the Executive Director has determined that oral submissions to the SSAT by a party or a party’s representative are to be made by telephone or by means of other electronic communications equipment; and

                     (b)  on the day fixed for the hearing the presiding member has been unable to contact the party or the party’s representative, as the case may, after taking reasonable steps to do so;

the Executive Director may authorise the SSAT to proceed to hear the application without oral submissions from the party or the party’s representative, as the case may be.

             (3)  If:

                     (a)  the Executive Director has not determined that oral submissions to the SSAT by a party or a party’s representative are to be made by telephone or by means of other electronic communications equipment; and

                     (b)  the party or the party’s representative, as the case may be, does not attend the hearing at the time fixed for the hearing;

the Executive Director may authorise the SSAT to proceed to hear the application without oral submissions from the party or the party’s representative, as the case may be.

             (4)  If the Executive Director gives an authorisation under subsection (2) or (3), the SSAT may proceed to hear the application in accordance with the authorisation.

             (5)  The Executive Director may revoke an authorisation under subsection (2) or (3).

164  Evidence on oath or affirmation

                   The SSAT may take evidence on oath or affirmation for the purposes of a review of a decision.

165  Provision of further information by Secretary

             (1)  The Executive Director may ask the Secretary to provide the SSAT with information or a document that the Secretary has and that is relevant to the review of a decision.

             (2)  The Secretary must comply with a request under subsection (1) as soon as practicable and, in any event, not later than 14 days after the request is made.

166  Exercise by Secretary of powers under section 192

             (1)  The Executive Director may ask the Secretary to exercise the Secretary’s powers under section 192 if the Executive Director is satisfied that a person has information, or has custody or control of a document, that is relevant to the review of a decision.

             (2)  The Secretary must comply with a request under subsection (1) as soon as practicable and, in any event, within 7 days after the request is made.

Subdivision CThe hearing

167  Hearing procedure

             (1)  The SSAT, in reviewing a decision:

                     (a)  is not bound by legal technicalities, legal forms or rules of evidence; and

                     (b)  is to act as speedily as a proper consideration of the review allows; and

                     (c)  in determining what a proper consideration of the review requires, must have regard to the objective laid down by section 141.

             (2)  The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.

168  Hearing in private

             (1)  The hearing of a review is to be in private.

             (2)  The Executive Director may give directions, in writing or otherwise, as to the persons who may be present at any hearing of a review.

             (3)  In giving directions under subsection (2), the Executive Director must have regard to the wishes of the parties and the need to protect their privacy.

169  Restrictions on disclosure of information obtained at hearing

             (1)  The Executive Director may make an order directing a person who is present at the hearing of a review:

                     (a)  not to disclose information obtained by the person in the course of the hearing; or

                     (b)  not to disclose information obtained by the person in the course of the hearing except in the circumstances, or for the purposes, specified in the order.

             (2)  A person must not contravene an order under subsection (1).

Penalty:  Imprisonment for 2 years.

Subdivision DOther procedural matters

170  Adjournment of SSAT hearings

             (1)  The SSAT may adjourn the hearing of a review of a decision from time to time.

             (2)  Without limiting subsection (1), the SSAT may refuse to adjourn the hearing of a review if:

                     (a)  the hearing has already been adjourned on 2 or more occasions; or

                     (b)  the SSAT is satisfied that to grant an adjournment would be inconsistent with the pursuit of the objective laid down by section 141; or

                     (c)  a declaration under section 131 or 145 is in force in relation to the decision under review.

171  Withdrawal of application for review

             (1)  An applicant for review of a decision may withdraw the application at any time.

             (2)  An applicant may withdraw an application by:

                     (a)  sending by any means, or delivering, written notice of withdrawal of the application to an office of the SSAT or an office of the Department; or

                     (b)  going to an office of the SSAT and orally withdrawing the application; or

                     (c)  contacting an office of the SSAT by telephone and orally withdrawing the application.

             (3)  If a person withdraws an application in accordance with paragraph (2)(b) or (c), the person who receives the oral withdrawal must make a written record of the day on which the withdrawal was made.

             (4)  If a person withdraws an application by sending or delivering written notice of withdrawal to an office of the Department, the Secretary must send notice of the withdrawal to the Executive Director as soon as practicable and, in any event, not later than 7 days after the notice of withdrawal is received at the office of the Department.

172  Dismissal of an application

             (1)  If:

                     (a)  a person makes an application to the SSAT for review of a decision; and

                     (b)  the Executive Director is satisfied:

                              (i)  after having communicated with the person; or

                             (ii)  after having made reasonable attempts to communicate with the person and having failed to do so;

                            that the person does not intend to proceed with the application;

the Executive Director may dismiss the application.

             (2)  If the Executive Director dismisses an application under subsection (1), the application is taken to have been withdrawn at the time at which the application was dismissed.

173  Chairperson for each SSAT hearing

             (1)  If the Executive Director is one of the members who constitute the SSAT for the purposes of the review of a decision, the Executive Director is to preside at the hearing of the review.

             (2)  If:

                     (a)  the members who constitute the SSAT for the purposes of the review of a decision include one Director; and

                     (b)  the Executive Director is not one of those members;

the Director is to preside at the hearing of the review.

             (3)  In any other case in which the SSAT is constituted by 2 or more members for the purposes of the review of a decision, the Executive Director must designate one of those members as the member who is to preside at the hearing of the review.

174  Decision of questions before SSAT

             (1)  Subject to subsection (2), a question arising before the SSAT on a review is to be decided according to the opinion of a majority of the members constituting the SSAT for the purposes of the review.

             (2)  If, on a question arising on a review, the opinions of the members of the SSAT are equally divided, the question is to be decided according to the opinion of the member presiding.

175  Directions as to procedure for hearings

             (1)  The Executive Director:

                     (a)  may give general directions as to the procedure to be followed by the SSAT in connection with the review of decisions under the social security law or under the Farm Household Support Act 1992; and

                     (b)  may give directions as to the procedure to be followed by the SSAT in connection with a particular review.

             (2)  A direction under subsection (1) must not be inconsistent with any provision of the social security law or the Farm Household Support Act 1992.

             (3)  A direction under paragraph (1)(b) may be given before or after the hearing of the particular review has commenced.

             (4)  The presiding member of the SSAT as constituted for the purposes of a particular review may give directions as to the procedure to be followed on the hearing of the review.

             (5)  A direction under subsection (4) must not be inconsistent with:

                     (a)  any provision of the social security law; or

                     (b)  any provision of the Farm Household Support Act 1992; or

                     (d)  a direction under subsection (1) of this section.

             (6)  A direction under subsection (4) may be given before or after the hearing of the particular review has commenced.

             (7)  Directions under this section must have due regard to the objective laid down by section 141.

176  Costs of review

             (1)  Subject to subsection (4), a party to a review must bear any expenses incurred by the party in connection with the review.

             (2)  The SSAT may determine that the Commonwealth is to pay the reasonable costs that are:

                     (a)  incurred by a party for travel and accommodation in connection with the review; and

                     (b)  specified in the determination.

             (3)  If the SSAT arranges for the provision of a medical service in relation to a party to a review, the SSAT may determine that the Commonwealth is to pay the costs of the provision of the service.

             (4)  If the SSAT makes a determination under subsection (2) or (3), the costs to which the determination relates are payable by the Commonwealth.

Subdivision ENotification of decisions

177  Procedure following SSAT decision

             (1)  When the SSAT makes its decision on a review, the SSAT must:

                     (a)  prepare a written statement that:

                              (i)  sets out the decision of the SSAT on the review; and

                             (ii)  sets out the reasons for the decision; and

                            (iii)  sets out the findings on any material questions of fact; and

                            (iv)  refers to evidence or other material on which the findings of fact are based; and

                     (b)  give each party to the review a copy of the statement referred to in paragraph (a) within 14 days after the making of the decision in relation to the review; and

                     (c)  if a person gave the Executive Director a notice under subsection 156(5) in connection with the review—give that person a copy of the statement referred to in paragraph (a) within 14 days after the making of the decision in relation to the review; and

                     (d)  return to the Secretary any document that the Secretary has provided to the SSAT in connection with the review; and

                     (e)  give the Secretary a copy of any other document that contains evidence or material on which the findings of fact are based.

             (2)  When the SSAT determines a review, the Executive Director must give each party to the review (other than the Secretary) a written notice that includes a statement to the effect that, if the person is dissatisfied with the decision of the SSAT, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the AAT for review of the decision.

             (3)  A failure to comply with subsection (2) in relation to a decision of the SSAT does not affect the validity of the decision.


 

Division 5Review by the Administrative Appeals Tribunal

Subdivision APreliminary

178  Application of Division

             (1)  Unless a contrary intention appears, the provisions of this Division apply to:

                     (a)  all decisions of an officer under the social security law or under the Farm Household Support Act 1992; and

                     (b)  all decisions under section 44-24 of the Aged Care Act 1997 by the Secretary or by a person to whom the Secretary has sub-delegated power under subsection 96-2(7) of that Act.

             (2)  This Division applies as if a decision under the 1991 Act, as in force immediately before the commencement of this Part, were a decision under the social security law.

Subdivision BRight to review by AAT

179  Review of decisions by AAT

             (1)  If:

                     (a)  a decision has been reviewed by the SSAT; and

                     (b)  the decision has been affirmed, varied or set aside by the SSAT;

application may be made to the AAT for review of the decision of the SSAT.

             (2)  For the purposes of subsection (1), the decision made by the SSAT is taken to be:

                     (a)  where the SSAT affirms a decision—that decision as affirmed; and

                     (b)  where the SSAT varies a decision—that decision as varied; and

                     (c)  where the SSAT sets a decision aside and substitutes a new decision—the new decision; and

                     (d)  where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT—the directions or recommendations of the SSAT.

             (3)  Subsection (1) has effect subject to section 29 of the Administrative Appeals Tribunal Act 1975.

             (4)  If:

                     (a)  the AAT sets aside a decision of the SSAT; and

                     (b)  the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;

the Secretary may, if satisfied that it is reasonable to do so, direct that the event is to be taken, for the purposes of the social security law, to have occurred.

180  Variation of decision before AAT review completed

             (1)  If an officer varies a decision after an application has been made to the AAT for review of that decision but before the determination of the application, the application is to be treated as if:

                     (a)  the decision as varied had been affirmed by the SSAT; and

                     (b)  the application were an application for review of the decision as varied.

             (2)  If an officer sets a decision aside and substitutes a new decision after an application has been made to the AAT for review of the original decision but before the determination of the application, the application is to be treated as if:

                     (a)  the SSAT had set aside the original decision and substituted the new decision; and

                     (b)  the application were an application for review of the new decision.

             (3)  If:

                     (a)  a person applies to the AAT for review of a decision; and

                     (b)  before determination of the application, an officer varies the decision or sets the decision aside and substitutes a new decision;

the applicant may, instead of proceeding with the application under subsection (1) or (2), withdraw the application.

181  Review by AAT limited to decisions reviewed by SSAT

                   The AAT may only review a decision that has been reviewed by the SSAT.

182  Settlement of proceedings before the AAT

             (1)  The Secretary may agree with other parties to proceedings before the AAT that relate to the recovery of a debt that the proceedings be settled. The agreement must be in writing.

             (2)  If proceedings are settled and the Secretary gives the AAT a copy of the agreement to settle the proceedings, the application for review of the decision the subject of the proceedings is taken to have been dismissed.

Subdivision CModification of Administrative Appeals Tribunal Act

183  Definition

                   In this Subdivision:

AAT Act means the Administrative Appeals Tribunal Act 1975.

184  Notice of application for review

                   The AAT Act applies to an application under section 179 for review of a decision as if the reference in subsection 29(11) of the AAT Act to the person who made the decision were a reference to each person who was a party to the review of the decision by the SSAT (other than the party who made the application under section 179).

185  Parties to a review by the AAT

                   The AAT Act applies to an application under section 179 for review as if the reference in paragraph 30(1)(b) of the AAT Act to the person who made the decision were a reference to each party to the review of the decision by the SSAT.

186  Lodgment of documents with the AAT

             (1)  The AAT Act applies to an application under section 179 for review as if references in section 37 of the AAT Act to the person who made the decision the subject of the application were references to:

                     (a)  if the original decision was made by the CEO or an employee of the Agency—the CEO; or

                     (b)  in any other case—the Secretary.

             (2)  If a person applies to the AAT under section 179 for review of a decision, the Secretary is to be taken to have complied with the Secretary’s obligations under paragraph 37(1)(a) of the AAT Act in relation to the decision if the Secretary gives the AAT the prescribed number of copies of the statement prepared by the SSAT under paragraph 177(1)(a).

             (3)  Subsection (2) does not limit the powers of the AAT under section 38 of the AAT Act.

             (4)  If:

                     (a)  a person applies under section 179 for review of a decision; and

                     (b)  the original decision was made by the CEO or an employee of the Agency;

subsection (2) applies as if references to the Secretary were references to the CEO.

             (5)  In this section:

original decision means the decision that was reviewed by the SSAT.

187  Power of AAT to obtain additional information

                   The AAT Act applies to an application under section 179 for review as if references in section 38 of the AAT Act to the person who lodges a statement referred to in paragraph 37(1)(a) of that Act with the AAT were references to the Executive Director.

188  Operation and implementation of the decision under review

             (1)  The AAT Act applies to an application under section 179 for review of a decision as if references in subsection 41(4) of the AAT Act to the person who made the decision were references to each party to the review by the SSAT.

             (2)  The AAT Act applies to an application under section 179 for review of a decision as if references in section 41 of the AAT Act to the decision to which the relevant proceeding relates were references to:

                     (a)  if the SSAT affirmed the original decision—the original decision; or

                     (b)  if the SSAT varied the original decision:

                              (i)  the original decision as varied by the SSAT; and

                             (ii)  the original decision; or

                     (c)  if the SSAT set aside the original decision and substituted a new decision:

                              (i)  the new decision; and

                             (ii)  the original decision; or

                     (d)  if the SSAT set aside the original decision and sent the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT:

                              (i)  any decision made as a result of that reconsideration; and

                             (ii)  the original decision.

             (3)  For the purposes of subsection (2), the original decision is the decision that was reviewed by the SSAT.

189  Failure of party to appear

                   The AAT Act applies to the review of a decision on an application under section 179 as if the reference in subsection 42A(2) of the AAT Act to the person who made the decision were a reference to the Secretary.


 

Part 5Information management

Division 1Information gathering

191  Application of Division

             (1)  This Division:

                     (a)  binds the Crown in each of its capacities; and

                     (b)  extends to:

                              (i)  acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

                             (ii)  all persons, irrespective of their nationality or citizenship.

             (2)  This Division does not require a person to give information or produce a document to the extent that in doing so the person would contravene a law of the Commonwealth (other than a law of a Territory).

192  General power to obtain information

                   The Secretary may require a person to give information, or produce a document that is in the person’s custody or under the person’s control, to the Department if the Secretary considers that the information or document may be relevant to one or more of the following:

                     (a)  the question whether a person who has made a claim for a social security payment is or was qualified for the payment;

                     (b)  the question whether a social security payment is payable to a person who is receiving the payment;

                     (c)  the question whether a social security payment was payable to a person who has received the payment;

                     (d)  the rate of social security payment that is or was applicable to a person;

                    (da)  the question whether a person who has made a claim under the Social Security (Fares Allowance) Rules 1998 was eligible for fares allowance;

                     (e)  the administration of an agreement between Australia and a foreign country on social security matters;

                      (f)  the question whether a person who has been granted a concession card is or was qualified for the card;

                     (g)  the question whether a person who has applied for financial supplement is eligible for the supplement;

                     (h)  the question whether a person who has obtained a financial supplement is or was eligible for the supplement;

                      (i)  the determination of the maximum amount of financial supplement that a person is eligible for;

                      (j)  the question whether an assurance of support given under Chapter 2C of the 1991 Act should be accepted or rejected.

193  Power to obtain information from a person who owes a debt to the Commonwealth

                   The Secretary may require a person who owes a debt to the Commonwealth under or as a result of the social security law or the Farm Household Support Act 1992:

                     (a)  either to:

                              (i)  give to the Department information that is relevant to the person’s financial situation; or

                             (ii)  produce to the Department a document that is in the person’s custody or under the person’s control and is relevant to the person’s financial situation; and

                     (b)  if the person’s address changes—to inform the Department of the new address within 14 days after the change.

194  Obtaining information about a person who owes a debt to the Commonwealth

                   If the Secretary believes that a person may have information or a document:

                     (a)  that would help the Department locate another person (the debtor) who owes a debt to the Commonwealth under or as a result of the social security law or the Farm Household Support Act 1992; or

                     (b)  that is relevant to the debtor’s financial situation;

the Secretary may require the person to give the information, or produce the document, to the Department.

195  Obtaining information to verify claims etc.

             (1)  The Secretary may require a person to give information about a class of persons to the Department for any or all of the following purposes:

                     (a)  to detect cases in which amounts of social security payment under the social security law have been paid when they should not have been paid;

                     (b)  to detect cases in which concession cards have been granted to persons to whom they should not have been granted;

                     (c)  to verify the qualification of persons who have made claims for social security payments under the social security law for those payments;

                     (d)  to verify the eligibility of persons who have applied for financial supplement.

             (2)  The information that the Secretary may require about each person in the class of persons is all or any of the following information (but no other information):

                     (a)  full name and any previous name;

                     (b)  address;

                     (c)  sex;

                     (d)  marital status;

                     (e)  date of birth;

                      (f)  date of death;

                     (g)  dates of entries into and departures from Australia;

                     (h)  any payments received by the person from the person given the notice, within the period of 52 weeks before the giving of the notice, and the account number of the account into which any of those payments were paid;

                      (i)  in relation to a course of study being undertaken by the person:

                              (i)  the name of the educational institution that the person is attending;

                             (ii)  the name of any educational institution previously attended by the person;

                            (iii)  the person’s enrolment status;

                            (iv)  the person’s student identification number;

                             (v)  the name of the course;

                            (vi)  the course code;

                           (vii)  the date on which the course started or starts;

                           (viii)  the date on which the course ends;

                            (ix)  the subject or unit code;

                             (x)  the normal full-time study work load for the course;

                            (xi)  indicators of the person’s work load, including (but not limited to) effective full-time student units, credit points, contact hours, number of subjects undertaken and number of assignments completed;

                           (xii)  the number of semesters required to complete the course;

                           (xiii)  the date on which the person first attended, or will first attend, the course;

                          (xiv)  the date on which the person last attended, or will last attend, the course;

                           (xv)  whether the person has discontinued the course and, if the person has discontinued the course, the date on which it happened;

                          (xvi)  details of any unapproved absences from the course;

                          (xvii)  the results or grade obtained by the person;

                      (j)  in relation to any employment of the person by the person given the notice:

                              (i)  the date on which the person’s employment started; and

                             (ii)  the date on which the person’s employment ended.

             (3)  The Secretary may require information about a particular class of persons whether or not the Secretary is able to identify any of the persons in that class as being:

                     (a)  persons:

                              (i)  who have received; or

                             (ii)  who are receiving; or

                            (iii)  who have made claims for;

                            social security payments; or

                     (b)  persons:

                              (i)  who are the holders of concession cards; or

                             (ii)  who have made claims for concession cards; or

                     (c)  persons who have applied for financial supplement.

             (4)  Within 13 weeks after information is given in response to a requirement under subsection (1), the Secretary must decide which (if any) of the information is, or is likely to be, relevant to a matter referred to in subsection (1).

             (5)  If the Secretary decides, within the 13 week period, that some or all of the information given in response to the requirement is not, or is not likely to be, relevant to a matter referred to in subsection (1), the Secretary must ensure that any record of the irrelevant information is destroyed.

             (6)  If the Secretary has not made a decision under subsection (4) at the end of the 13 week period, the Secretary must ensure that any record of all or any part of the information is destroyed.

196  Written notice of requirement

             (1)  A requirement under this Division must be made by written notice given to the person of whom the requirement is made.

             (2)  The notice:

                     (a)  may be given personally or by post or in any other manner approved by the Secretary; and

                     (b)  must specify:

                              (i)  how the person is to give the information or produce the document to which the requirement relates; and

                             (ii)  the period within which the person is to give the information or produce the document to the Department; and

                            (iii)  the officer (if any) to whom the information is to be given or the document is to be produced; and

                            (iv)  that the notice is given under this section.

             (3)  The period specified under subparagraph (2)(b)(ii) must not end earlier than 14 days after the notice is given.

             (4)  The notice may require the person to give the information by appearing before a specified officer to answer questions.

             (5)  If the notice requires the person to appear before an officer, the notice must specify a time and place at which the person is to appear. The time must be at least 14 days after the notice is given.

197  Offence—failure to comply with requirement

             (1)  A person must not refuse or fail to comply with a requirement under this Division to give information or produce a document.

Penalty:  Imprisonment for a term not exceeding 12 months.

             (2)  Subsection (1) applies only to the extent to which the person is capable of complying with the requirement.

             (3)  Subsection (1) does not apply if the person has a reasonable excuse.

198  Obligations not affected by State or Territory laws

                   Nothing contained in a law of a State or a Territory operates to prevent a person from:

                     (a)  giving information; or

                     (b)  producing a document; or

                     (c)  giving evidence;

that the person is required to give or produce to the Department or an officer for the purposes of the social security law.


 

Division 2End-of-employment statements

199  Request for end-of-employment statement

                   If a person’s employment (including employment under a contract for services) ceases, the person may request his or her former employer to give the person a statement, in accordance with a form approved by the Secretary, about that employment.

200  Offence—failure to give end-of-employment statement

             (1)  If a person makes a request under section 199, the former employer must comply with the request as soon as practicable.

Penalty:  Imprisonment for a term not exceeding 12 months.

             (2)  Strict liability applies to the element of an offence against subsection (1) that a request is a request under section 199.


 

Division 3Confidentiality

201  Operation of Division

             (1)  Nothing in this Division prevents a person from disclosing information to another person if the information is disclosed for the purposes of the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989.

             (2)  The provisions of this Division that relate to the disclosure of information do not affect the operation of the Freedom of Information Act 1982.

201A  Definition of officer

                   In this Division:

officer means:

                     (a)  a person who is or has been an officer within the meaning of subsection 23(1) of the 1991 Act; or

                     (b)  a person who is or has been appointed or employed by the Commonwealth and who, as a result of that appointment or employment, may acquire or has acquired information concerning a person under the social security law or the Farm Household Support Act 1992; or

                     (c)  a person who, although not appointed or employed by the Commonwealth, performs or did perform services for the Commonwealth and who, as a result of performing those services, may acquire or has acquired information concerning a person under the social security law or the Farm Household Support Act 1992.

202  Protection of personal information

             (1)  A person may obtain protected information if the information is obtained for the purposes of the social security law or the Farm Household Support Act 1992 or the Family Homelessness Prevention and Early Intervention Pilot.

             (2)  A person may:

                     (a)  make a record of protected information; or

                     (b)  disclose such information to any person; or

                     (c)  otherwise use such information;

if the record, disclosure or use made of the information by the person is made:

                     (d)  for the purposes of the social security law or the Farm Household Support Act 1992; or

                    (da)  for the purposes of the Family Homelessness Prevention and Early Intervention Pilot; or

                     (e)  for the purpose for which the information was disclosed to the person under section 207 or 208 of this Act.

             (3)  The Minister may, by instrument in writing, specify additional purposes relating to other programs administered by the Department for which protected information may be obtained under subsection (1), or recorded, disclosed or otherwise used under subsection (2).

             (4)  An instrument under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (5)  For the purposes of the application of section 48 of the Acts Interpretation Act 1901, an instrument does not take effect until the end of the period in which it could be disallowed in either House of the Parliament.

203  Offence—unauthorised access to information

             (1)  If:

                     (a)  a person intentionally obtains information; and

                     (b)  the person is not authorised by or under the social security law or the Farm Household Support Act 1992 to obtain the information; and

                     (c)  the person knows or ought reasonably to know that the information is protected information;

the person is guilty of an offence.

             (2)  An offence against subsection (1) is punishable on conviction by imprisonment for a term not exceeding 2 years.

             (3)  Strict liability applies to the element of an offence against subsection (1) that a person not authorised to do something is not authorised by or under the social security law or the Farm Household Support Act 1992 to do that thing.

204  Offence—unauthorised use of protected information

             (1)  If:

                     (a)  a person intentionally:

                              (i)  makes a record of; or

                             (ii)  discloses to any other person; or

                            (iii)  otherwise makes use of;

                            information; and

                     (b)  the person is not authorised or required by or under the social security law, the family assistance law or the Farm Household Support Act 1992 to make the record, disclosure or use of the information that is made by the person; and

                     (c)  the person knows or ought reasonably to know that the information is protected information;

the person is guilty of an offence.

             (2)  An offence against subsection (1) is punishable on conviction by imprisonment for a term not exceeding 2 years.

             (3)  Strict liability applies to the element of an offence against subsection (1) that a person not authorised or required to do something is not authorised or required by or under the social security law or the Farm Household Support Act 1992 to do that thing.

204A  Use of tax file numbers

             (1)  The Secretary may require the Commissioner of Taxation to provide the Secretary with information about people, including tax file numbers, that was contained in TFN declarations lodged with the Commissioner under Division 3 of Part VA of the Income Tax Assessment Act 1936.

             (2)  Information provided to the Secretary under a requirement made under subsection (1) may be used only for the following purposes:

                     (a)  to detect cases in which amounts of social security payments under the social security law have been paid when they should not have been paid;

                     (b)  to verify, in respect of persons who have made claims for social security payments under the social security law, the qualification of those persons for those payments;

                     (c)  to establish whether the rates at which social security payments under the social security law are being, or have been, paid are, or were, correct.

205  Offence—soliciting disclosure of protected information

             (1)  If:

                     (a)  a person (the first person) solicits the disclosure of protected information from an officer or another person; and

                     (b)  the disclosure would be in contravention of this Division; and

                     (c)  the first person knows or ought reasonably to know that the information is protected information;

the first person is guilty of an offence, whether or not any protected information is actually disclosed.

             (2)  An offence against subsection (1) is punishable on conviction by imprisonment for a term not exceeding 2 years.

             (3)  Strict liability applies to the element of an offence against subsection (1) that a contravention is a contravention of this Division.

206  Offence—offering to supply protected information

             (1)  A person who offers to supply (whether to a particular person or otherwise) information about another person, knowing the information to be protected information, is guilty of an offence.

             (2)  A person who holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person, knowing the information to be protected information, is guilty of an offence.

             (3)  An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not exceeding 2 years.

             (4)  Nothing in subsection (1) or (2) renders an officer acting in the performance or exercise of his or her duties, functions or powers under the social security law or the Farm Household Support Act 1992 guilty of an offence.

207  Protection of certain documents etc. from production to court etc.

                   An officer must not, except for the purposes of the social security law or the Farm Household Support Act 1992, be required:

                     (a)  to produce any document in his or her possession; or

                     (b)  to disclose any matter or thing of which he or she had notice;

because of the performance or exercise of his or her duties, functions or powers under the social security law or the Farm Household Support Act 1992, to:

                     (c)  a court; or

                     (d)  a tribunal; or

                     (e)  an authority; or

                      (f)  a person;

having power to require the production of documents or the answering of questions.

208  Disclosure of information by Secretary

             (1)  Despite sections 204 and 207, the Secretary may:

                     (a)  if the Secretary certifies that it is necessary in the public interest to do so in a particular case or class of cases—disclose information acquired by an officer in the performance of his or her functions or duties or in the exercise of his or her powers under the social security law or the Farm Household Support Act 1992 to such persons and for such purposes as the Secretary determines; or

                     (b)  disclose any such information:

                              (i)  to the Secretary of a Department of State of the Commonwealth or to the head of an authority of the Commonwealth for the purposes of that Department or authority; or

                             (ii)  to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it; or

                            (iii)  to a competent authority or competent institution of a foreign country that is a party to a scheduled international social security agreement for any purpose relating to giving effect to that agreement.

             (2)  In giving certificates for the purposes of paragraph (1)(a), the Secretary must act in accordance with guidelines from time to time in force under section 209.

             (3)  In disclosing information under subparagraph (1)(b)(i), the Secretary must act in accordance with guidelines from time to time in force under section 209.

          (3A)  In spite of any other provision of this Part, the Secretary may disclose information of a kind referred to in paragraph (a) or (b) of the definition of protected information in subsection 23(1) of the 1991 Act to a person who is the payment nominee or correspondence nominee, within the meaning of Part 3A, of the person to whom the information relates (the principal) as if the nominee were the principal.

             (4)  If an expression used in subsection (1) in relation to a foreign country is defined in a scheduled international social security agreement to which that country is a party, the expression has the same meaning, when used in this section, in relation to that country as it has in the agreement.

209  Guidelines for exercise of Secretary’s disclosure powers

             (1)  The Minister, by determination in writing:

                     (a)  is to determine guidelines for the exercise of:

                              (i)  the Secretary’s power to give certificates for the purposes of paragraph 208(1)(a); and

                             (ii)  the Secretary’s power under subsection 208(1) to disclose information to a person referred to in subparagraph 208(1)(b)(i); and

                     (b)  may revoke or vary those guidelines.

             (2)  A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

210  Officer’s declaration

                   An officer must make a declaration in a form approved by the Minister or the Secretary if required to do so by the Minister or the Secretary.


 

Part 6Offences

Division 1Preliminary

211  Application of Part

                   This Part extends to:

                     (a)  acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

                     (b)  all persons, irrespective of their nationality, who are making, or have made, a claim for a social security payment under the social security law; and

                     (c)  all persons, irrespective of their nationality, who are receiving, or have received, a payment of a social security payment under the social security law.


 

Division 2Offences

212  False statement in connection with claim or hardship request

             (1)  A person contravenes this subsection if:

                     (a)  the person makes a statement; and

                     (b)  the statement is false or misleading; and

                     (c)  the person is reckless as to whether the statement is false or misleading; and

                     (d)  the statement is made in connection with, or in support of, the person’s or any other person’s:

                              (i)  claim for a social security payment under the social security law; or

                             (ii)  request under paragraph 1129(1)(d) of the 1991 Act that section 1129 of that Act apply to the person; or

                            (iii)  request under paragraph 1131(1)(f) of the 1991 Act that section 1131 of that Act apply to the person; or

                            (iv)  request under paragraph 1132A(1)(b) of the 1991 Act that paragraph 838(1)(d) of that Act not apply to the person.

             (2)  For the purposes of an offence against section 217 that relates to subsection (1) of this section, strict liability applies to the following elements of the offence:

                     (a)  the element that a payment is a social security payment under the social security law;

                     (b)  the element that a request is a request under paragraph 1129(1)(d) of the 1991 Act;

                     (c)  the element that a request is a request under paragraph 1131(1)(f) of the 1991 Act;

                     (d)  the element that a request is a request under paragraph 1132A(1)(b) of the 1991 Act.

213  False statement to deceive or affect rates

             (1)  A person contravenes this subsection if:

                     (a)  the person makes a statement; and

                     (b)  the statement is false or misleading; and

                     (c)  the person is reckless as to whether the statement is false or misleading; and

                     (d)  the person is reckless as to whether the statement:

                              (i)  deceives, or might deceive, an officer doing duty in relation to the social security law; or

                             (ii)  affects, or might affect, the rate of a social security payment under the social security law.

             (2)  For the purposes of an offence against section 217 that relates to subsection (1) of this section, strict liability applies to the following elements of the offence:

                     (a)  the element that a duty is a duty in relation to the social security law;

                     (b)  the element that a rate of payment is a rate of social security payment under the social security law.

214  False statement or document

             (1)  A person contravenes this subsection if:

                     (a)  the person makes a statement to an officer; and

                     (b)  the statement is false or misleading in any particular; and

                     (c)  the person is reckless as to whether the statement is false or misleading in any particular.

             (2)  A person contravenes this subsection if:

                     (a)  the person presents a document to an officer; and

                     (b)  the document is false or misleading in any particular; and

                     (c)  the person is reckless as to whether the document is false or misleading in any particular.

215  Obtaining payment that is not payable

             (1)  A person must not obtain:

                     (a)  payment of a social security payment under the social security law; or

                     (b)  payment of an instalment of a social security payment under the social security law;

knowing that the payment is:

                     (c)  not payable at all; or

                     (d)  only payable in part.

             (2)  For the purposes of an offence against section 217 that relates to subsection (1) of this section, strict liability applies to the following elements of the offence:

                     (a)  the element that a payment is a social security payment under the social security law;

                     (b)  the element that an instalment is an instalment of a social security payment under the social security law.

216  Payment obtained through fraud etc.

             (1)  A person contravenes this subsection if:

                     (a)  the person obtains:

                              (i)  payment of a social security payment under the social security law; or

                             (ii)  payment of an instalment of a social security payment under the social security law; and

                     (b)  the person does so:

                              (i)  by means of impersonation; or

                             (ii)  by means of a fraudulent device.

             (2)  For the purposes of an offence against section 217 that relates to subsection (1) of this section, strict liability applies to the following elements of the offence:

                     (a)  the element that a payment is a social security payment under the social security law;

                     (b)  the element that an instalment is an instalment of a social security payment under the social security law.

             (3)  A person contravenes this subsection if:

                     (a)  the person makes a statement; and

                     (b)  the statement is false or misleading; and

                     (c)  the person is reckless as to whether the statement is false or misleading; and

                     (d)  as a result the person obtains:

                              (i)  payment of a social security payment under the social security law; or

                             (ii)  payment of an instalment of a social security payment under the social security law.

             (4)  For the purposes of an offence against section 217 that relates to subsection (3) of this section, strict liability applies to the following elements of the offence:

                     (a)  the element that a payment is a social security payment under the social security law;

                     (b)  the element that an instalment is an instalment of a social security payment under the social security law.


 

Division 3Penalties

217  Penalty for contravention of Division 2

                   A person who contravenes a provision of Division 2 is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 12 months.

218  Repayment of social security payment

             (1)  If a person is convicted of an offence against section 217, the court may:

                     (a)  impose a penalty in respect of the offence; and

                     (b)  order the person to pay the Commonwealth an amount equal to any amount paid by way of social security payment because of the act, failure or omission that constituted the offence.

             (2)  In spite of anything in the social security law or any other law, a person is not to be imprisoned for failing to pay an amount payable to the Commonwealth under paragraph (1)(b).

219  Penalty where person convicted of more than one offence

             (1)  Subject to subsection (2), if a person is convicted of more than one offence against section 217, the court may, if it thinks fit, impose one penalty for all the offences.

             (2)  A single penalty imposed under subsection (1) must not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed for each offence.


 

Division 4Procedural matters

220  Joining of charges

                   Charges against the same person for a number of offences against section 217 may be joined in one complaint, information or declaration if those charges:

                     (a)  are founded on the same facts; or

                     (b)  form a series of offences of the same or a similar character; or

                     (c)  are part of a series of offences of the same or a similar character.

221  Particulars of each offence

                   If 2 or more charges are included in the same complaint, information or declaration, particulars of each offence charged are to be set out in a separate paragraph.

222  Trial of joined charges

                   If charges are joined, the charges are to be tried together unless:

                     (a)  the court considers it just that any charge should be tried separately; and

                     (b)  the court makes an order to that effect.

223  Evidentiary effect of Secretary’s certificate

             (1)  For the purposes of paragraph 218(1)(b), a certificate signed by the Secretary is evidence of the matters specified in the certificate.

             (2)  Without limiting subsection (1), a certificate may specify:

                     (a)  a person; and

                     (b)  an amount that has been paid to the person by way of social security payment because of:

                              (i)  an act; or

                             (ii)  a failure; or

                            (iii)  an omission; and

                     (c)  the act, failure or omission that caused the amount to be paid.

224  Enforcement of court certificate as judgment

                   If:

                     (a)  a court makes an order under paragraph 218(1)(b), under paragraph 1351(1)(b) of the 1991 Act as in force before 20 March 2000 or under subsection 239(7) of the 1947 Act; and

                     (b)  the clerk or other appropriate officer of the court gives a certificate specifying:

                              (i)  the amount ordered to be paid to the Commonwealth; and

                             (ii)  the person by whom the amount is to be paid; and

                     (c)  the certificate is filed in a court (which may be the court that made the order) that has civil jurisdiction to the extent of the amount to be paid;

the certificate is enforceable in all respects as a final judgment of the court in which the certificate is filed.


 

Division 5Liability of certain employers and principals for offences

Subdivision AInterpretation

225  State of mind of a person

                   A reference in this Division to the state of mind of a person includes a reference to:

                     (a)  the knowledge, intention, opinion, belief or purpose of the person; and

                     (b)  the person’s reasons for the intention, opinion, belief or purpose.

228  Offence

                   A reference in this Division to an offence against the social security law includes a reference to:

                     (a)  an offence against the social security law that is taken to have been committed because of section 11.2 of the Criminal Code; or

                     (b)  an offence created by:

                              (i)  section 11.1, 11.4 or 11.5 of the Criminal Code; or

                             (ii)  section 6 of the Crimes Act 1914;

                            that relates to the social security law.

Subdivision CProceedings against non-corporations

231  State of mind of individual

                   If, in proceedings for an offence against the social security law in respect of conduct engaged in by a person other than a corporation, it is necessary to establish the state of mind of the person, it is sufficient to show that:

                     (a)  the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and

                     (b)  the employee or agent had that state of mind.

232  Conduct of employee or agent

                   If:

                     (a)  conduct is engaged in on behalf of a person other than a corporation by an employee or agent of the person; and

                     (b)  the conduct is within the scope of the employee’s actual or apparent authority;

the conduct is taken, for the purposes of a prosecution for an offence against the social security law, to have been engaged in by the person unless the person establishes that he or she took reasonable precautions, and exercised due diligence, to avoid the conduct.

233  Exclusion of imprisonment as penalty for certain offences

                   In spite of any other provision of the social security law, if:

                     (a)  a person is convicted of an offence; and

                     (b)  the person would not have been convicted if sections 231 and 232 had not been in force;

the person is not liable to be punished by imprisonment for that offence.


 

Part 7Miscellaneous

  

234  Delegation

             (1)  Subject to subsection (3), the Secretary may, in writing, delegate to an officer all or any of the powers of the Secretary under the social security law.

             (2)  Subject to subsection (3), the Secretary may, in writing and in accordance with service arrangements, delegate to the CEO or an employee of the Agency all or any of the powers of the Secretary under the social security law.

             (3)  The Secretary cannot delegate to anyone except the CEO the Secretary’s power under subsection 208(1) to disclose information to a person referred to in subparagraph 208(1)(b)(i).

             (4)  If the Secretary delegates to the CEO the Secretary’s power under subsection 208(1) to disclose information to a person referred to in subparagraph 208(1)(b)(i), the CEO cannot, in spite of any provision to the contrary in the Agency Act, delegate the power to an employee of the Agency.

             (5)  The Health Secretary may, in writing, delegate to an officer of the Health Department all or any of the powers and functions of the Health Secretary under this Act.

             (6)  The Employment Secretary may, in writing, delegate the power of the Employment Secretary under section 28 of the 1991 Act to declare particular programs of work to be programs of work for unemployment payment:

                     (a)  to an officer of the Employment Department or the Department of Family and Community Services; or

                     (b)  to an employee of the Agency.

             (7)  In this section:

officer does not include the CEO or an employee of the Agency.

235  Authorised review officers

                   The Secretary may, in writing, authorise an officer to perform duties as an authorised review officer for the purposes of the social security law.

236  Decisions to be in writing

             (1)  A decision of an officer under the social security law must be in writing.

             (2)  A decision under the social security law is taken to be in writing if it is made, or recorded, by means of a computer.

237  Notice of decisions

             (1)  If notice of a decision under the social security law is:

                     (a)  delivered to a person personally; or

                     (b)  left at the address of the place of residence or business of the person last known to the Secretary; or

                     (c)  sent by prepaid post to the postal address of the person last known to the Secretary;

notice of the decision is taken, for the purposes of the social security law, to have been given to the person.

             (2)  Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.

             (3)  If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.

             (4)  This section only applies to notices of decisions, and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).

238  Payments to Commissioner of Taxation or the Child Support Registrar

             (1)  The Secretary must, in accordance with section 218 of the Income Tax Assessment Act 1936, or Subdivision 260-A in Schedule 1 to the Taxation Administration Act 1953, for the purpose of enabling the collection of an amount that is, or may become, payable by a recipient of a social security payment:

                     (a)  make deductions from the instalments of, or make a deduction from, the social security payment payable to a person; and

                     (b)  pay the amount deducted to the Commissioner of Taxation.

             (2)  The Secretary must, in accordance with a notice given to the Secretary under section 72AA of the Child Support (Registration and Collection) Act 1988 in relation to the recipient of a social security pension or a social security benefit:

                     (a)  make deductions from the instalments of the pension or benefit payable to the person; and

                     (b)  pay the amounts deducted to the Registrar.

239  Judicial notice of certain matters

             (1)  All courts are to take judicial notice of a signature that purports to be attached or appended to any official document if the signature is of a person who:

                     (a)  holds or has held the office of:

                              (i)  Secretary; or

                             (ii)  Director-General of Social Security; or

                            (iii)  Director-General of Social Services; or

                     (b)  is or has been an officer.

             (2)  If the signature of a person referred to in subsection (1) purports to be attached or appended to any official document, all courts are to take judicial notice of the fact that the person holds, or has held, an office referred to in subsection (1) or is, or has been, an officer.

240  Documentary evidence

             (1)  If the signature of any person who:

                     (a)  holds or has held the office of:

                              (i)  Secretary; or

                             (ii)  Director-General of Social Security; or

                            (iii)  Director-General of Social Services; or

                     (b)  is or has been an officer;

purports to be attached or appended to any official document, the document is to be received in all courts as prima facie evidence of the facts and statements contained in it.

             (2)  A statement in writing signed by a person referred to in subsection (1) that a person is or was receiving a social security payment under the social security law or the 1947 Act on a certain date at a certain rate is to be received in all courts as prima facie evidence that the person is or was receiving the social security payment on the date, and at the rate, stated.

             (3)  A certificate given by the Secretary stating:

                     (a)  that a specified amount was the principal sum at a particular time under a specified financial supplement contract; or

                     (b)  that a specified amount was the sum of the amounts repaid, or the sum of the amounts notionally repaid, before a particular time or during a particular period in respect of a specified financial supplement contract; or

                     (c)  that a specified amount was the amount, or the total of the amounts, of subsidy paid by the Commonwealth to a specified participating corporation in respect of a specified financial supplement contract in lieu of interest on the principal sum or in lieu of interest on the principal sum in relation to a specified period; or

                     (d)  that a specified amount was, at a particular time, the amount outstanding under a specified financial supplement contract; or

                     (e)  that a specified amount was, at a particular time, the indexation amount in relation to a specified financial supplement contract; or

                      (f)  that the rights, or specified rights, of a specified participating corporation in respect of a specified person under a specified financial supplement contract were transferred by the corporation to the Commonwealth on a specified date; or

                     (g)  that, on a specified day, a person had an FS debt or FS debts to the Commonwealth of a specified amount or specified amounts; or

                     (h)  that, on a specified day, a notice, to a specified effect, under a provision of Chapter 2B was given to a specified person by the Secretary;

is to be received in all courts as prima facie evidence of the matters stated in the certificate.

             (4)  In any proceeding, a document purporting to be a certificate by the Secretary under subsection (3) is to be taken, unless the contrary is established, to be such a certificate and to have been duly given.

240A  Form of cards

             (1)  A pensioner concession card, a seniors health card or a health care card must be in a form approved in writing by the Secretary for that card.

             (2)  Subject to subsection (3), an approval under subsection (1) may extend to:

                     (a)  the inclusion on a card of information in a form not capable of being read except by the use of equipment of a particular kind; and

                     (b)  the specification in a card of a day as the day at the end of which the card will expire; and

                     (c)  a form of card that is not an actual card carrying visible information.

             (3)  In the case of a concession card other than an automatic issue card:

                     (a)  the card must specify the day at the end of which the card expires; and

                     (b)  the day to be so specified is the last day of the period specified, for the purposes of subsection 37(9) or (10), in the determination granting the card.

             (4)  Subject to section 240B, a concession card is to include the name of each person (if any) who is a dependant of the holder of the card.

             (5)  The specification of a day in a card under paragraph (2)(b) does not affect the qualification of the person to whom the card is issued for a card of the same or any other type.

             (6)  The expiry of a card on a day specified under paragraph (2)(b) does not affect the qualification of the person to whom the card was issued for a card of the same or any other type.

             (7)  A failure to comply with subsection (4) in relation to a concession card does not alone render the card ineffective for the purposes of this or any other Act.

             (8)  In this section:

dependant has the same meaning as in Part 2A.1 of the 1991 Act.

240B  Restrictions on listing of dependants

             (1)  A seniors health card is not to include the name of any person as a dependant of the holder of the card.

             (2)  A health care card issued to a person by virtue of subsection 1061ZK(7) of the 1991 Act is not to include the name of any person as a dependant of the holder of the card.

             (3)  A health care card is not to include the name of a person (other than the partner of the holder of the card) as a dependant of the holder of the card if the person is the holder of a pensioner concession card or a health care card.

             (4)  A pensioner concession card or a health care card is not to include the name of the partner of the holder of the card as a dependant of the holder of the card unless:

                     (a)  the partner is in Australia and is:

                              (i)  an Australian resident; or

                            (ia)  is a special category visa holder residing in Australia; or

                             (ii)  the holder of a visa included in a class of visas determined by the Minister for the purposes of this paragraph; or

                            (iii)  a person declared by the Minister to be a person to whom this subparagraph applies; or

                     (b)  the partner is a New Zealand citizen and the holder of the card:

                              (i)  is in Australia; and

                             (ii)  is receiving a social security pension or benefit solely because of the operation of the scheduled international agreement between Australia and New Zealand.

             (5)  The Minister may declare that a person who:

                     (a)  is included in a specified class of persons; and

                     (b)  is, or has been, in Australia in specified circumstances;

is a person to whom subparagraph (4)(a)(iii) applies.

             (6)  The circumstances that may be specified in a declaration under subsection (5) include circumstances that existed or exist at any time before or after the making of the declaration.

             (7)  A declaration under subsection (5):

                     (a)  must be in writing; and

                     (b)  is a disallowable instrument.

             (8)  In this section:

dependant has the same meaning as in Part 2A.1 of the 1991 Act.

240C  Issue of replacement card on expiry of automatic issue card

             (1)  If:

                     (a)  a day is specified in an automatic issue card under paragraph 240A(2)(b); and

                     (b)  on the day following that day, the person who was the holder of the card remains qualified for the card; and

                     (c)  a further card has not been issued to the person under subsection (2);

the Secretary must issue a further card to the person.

             (2)  If:

                     (a)  a day (the expiry day) is specified in an automatic issue card under paragraph 240A(2)(b); and

                     (b)  the Secretary is satisfied that the person is likely to remain qualified for the card after the end of the expiry day;

the Secretary may, at any time before the expiry day, issue to the person a further card to take effect on the day following the expiry day.

241  Annual report

             (1)  As soon as practicable after 30 June in each year, the Secretary must give to the Minister a written report on the administrative operation of the social security law during the financial year that ended on that 30 June.

             (2)  The Minister is to cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

242  Appropriation

                   Payments under the social security law and payments by the Commonwealth to financial corporations under the Student Financial Supplement Scheme established under Chapter 2B of the 1991 Act are to be made out of the Consolidated Revenue Fund, which is appropriated accordingly.

243  Regulations

             (1)  The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act or the 1991 Act to be prescribed; or

                     (b)  necessary or convenient for carrying out or giving effect to this Act or the 1991 Act and, in particular, may make regulations prescribing penalties of a fine not exceeding 10 penalty units for any breach of the regulations.

             (2)  Without limiting subsection (1), the matters that may be prescribed by regulations include:

                     (a)  ways (other than ways involving the use of a document) in which a claim, application, submission, declaration or determination may be made or withdrawn, or information or a notice, statement, certificate, direction or consent may be given, for the purposes of a provision of the social security law; and

                     (b)  matters relating to the doing of anything in a way referred to in paragraph (a), including matters relating to proof of the doing of things in such a way.

             (3)  The reference in subsection (2) to ways by which something may be made, withdrawn or given includes, but is not limited to:

                     (a)  the use of electronic equipment; and

                     (b)  ways that involve the use of a telecommunications system.

             (4)  Anything made, withdrawn or given in a way prescribed by regulations made by virtue of subsection (2) is taken, for the purposes of the social security law:

                     (a)  to have been made, withdrawn or given in writing; and

                     (b)  to have been made, withdrawn or given in accordance with the social security law.

             (5)  The reference in paragraph (2)(a) to a determination does not include a reference to a determination that is a disallowable instrument.


 

Part 8Transitional and saving provisions

  

244  Construction of references to 1991 Act

                   A reference in:

                     (a)  a provision of a law of the Commonwealth or a Territory enacted before 20 March 2000 (whether or not the provision has come into operation); or

                     (b)  an instrument or a document;

to a provision of the 1991 Act that has been repealed by the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 is, on and after 20 March 2000, to be construed as a reference to the corresponding provision of this Act.

245  Correspondence of provisions

             (1)  If one provision of the 1991 Act and one provision of this Act have the same legal effect, the 2 provisions correspond to each other.

             (2)  If:

                     (a)  a provision of the 1991 Act has a particular legal effect in relation to a number of payment types; and

                     (b)  a provision of this Act has that legal effect in relation to one or more, but not all, of those payment types;

the provisions correspond to each other, for the purpose of subsection (1), in relation to the payment types referred to in paragraph (b).

             (3)  In this section:

legal effect includes conferring the power to issue an instrument.

payment type means a pension, benefit or allowance.

246  Saving of social security payments and concession cards

             (1)  If a determination under the 1991 Act granting a claim for a social security payment or concession card is in force immediately before 20 March 2000, the determination has effect, on and from 20 March 2000, as if it were a determination under this Act granting a claim for the payment or card.

             (2)  If a determination under the 1991 Act directing the making of a payment of a social security payment is in force immediately before 20 March 2000, the determination has effect, on and from 20 March 2000, as if it were a determination under this Act directing the making of a payment of the social security payment.

247  Saving of instruments under 1991 Act

             (1)  An instrument that was in force, immediately before 20 March 2000, under a provision of the 1991 Act that is amended or repealed by the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 has effect, on and from 20 March 2000, as if it were an instrument made under the corresponding provision of this Act.

             (2)  Without limiting subsection (1), the instrument may be:

                     (a)  a determination; or

                     (b)  a direction; or

                     (c)  an approval; or

                     (d)  a notice; or

                     (e)  a declaration; or

                      (f)  an authorisation.

             (3)  Subsection (1) does not apply to:

                     (a)  a determination to which section 246 applies; or

                     (b)  a delegation under section 1299 of the 1991 Act.

             (4)  If an instrument to which subsection (1) applies was, when made, to have effect only for a limited period, the instrument has effect under subsection (1) only for so much of the period as had not already expired before 20 March 2000.

248  Saving of claims for social security payments and concession cards

             (1)  If:

                     (a)  a person has lodged a claim for a social security payment or a concession card under the 1991 Act before 20 March 2000; and

                     (b)  the claim has not been determined before 20 March 2000;

the claim has effect, on and from 20 March 2000, as if it were a claim under this Act for the payment or card.

             (2)  If:

                     (a)  subsection (1) applies to a claim; and

                     (b)  the claim is granted under this Act;

the determination granting the claim may have a date of effect before 20 March 2000.

             (3)  If:

                     (a)  subsection (1) applies to a claim; and

                     (b)  the claim is granted under this Act; and

                     (c)  the determination granting the claim has a date of effect before 20 March 2000;

the payment of instalments during the period that starts on the date of effect of the determination and ends on 19 March 2000 is taken to be made under this Act and the person making the claim has no rights under the 1991 Act arising from the claim.

249  Transitional instalment period

                   If:

                     (a)  an instalment period relating to an instalment of a social security payment payable to a person under the 1991 Act commenced before 20 March 2000; and

                     (b)  the instalment period would have ended after 20 March 2000;

this Act has effect in relation to that period and that instalment as if:

                     (c)  this Act had been in force throughout the whole of the instalment period; and

                     (d)  the instalment period had been a period determined under subsection 43(1) of this Act.

250  Application for amount owing at recipient's death

                   If:

                     (a)  before 20 March 2000, a person made an application under a provision of the 1991 Act that relates to the payment of a social security payment after a person has died; and

                     (b)  the application was not determined before 20 March 2000;

then:

                     (c)  the application has effect, on and from 20 March 2000, as if it had been made under the corresponding provision of this Act and:

                     (d)  this Act has effect as if the amount in respect of which the application was made were an amount payable under this Act; and

                     (e)  the application has no effect for the purposes of the 1991 Act.

251  Power to obtain information about events etc. before 20 March 2000

                   If a provision of this Act gives the Secretary power to request a person to give information or produce a document, the power extends to requesting a person:

                     (a)  to give information about matters that arose before 20 March 2000; or

                     (b)  to produce a document that came into existence, or relates to matters that arose, before 20 March 2000.

252  Unfinished reviews by Secretary

             (1)  If:

                     (a)  a person made an application under section 1240 of the 1991 Act before 20 March 2000; and

                     (b)  the application was not determined before 20 March 2000;

the application has effect, from 20 March 2000, as if it were an application under section 129 of this Act.

             (2)  The date of effect of the decision made in response to the application may be before 20 March 2000.

             (3)  If:

                     (a)  subsection (1) applies to an application; and

                     (b)  the date of effect of the decision made in response to the application is before 20 March 2000;

the decision has effect, for the period that starts on the date of effect of the decision and ends on 19 March 2000, as if it were a decision made under the 1991 Act.

253  Unfinished reviews by SSAT

             (1)  If:

                     (a)  a person made an application under section 1247 of the 1991 Act before 20 March 2000; and

                     (b)  the application was not determined before 20 March 2000;

the application has effect, on and from 20 March 2000, as if it were an application under section 142 of this Act.

             (2)  The date of effect of the decision made in response to the application may be before 20 March 2000.

             (3)  If:

                     (a)  subsection (1) applies to an application; and

                     (b)  the date of effect of the decision made in response to the application is before 20 March 2000;

the decision has effect, for the period that starts on the date of effect of the decision and ends on 19 March 2000, as if it were a decision made under the 1991 Act.

254  Unfinished reviews by AAT

             (1)  If:

                     (a)  a person made an application under section 1283 of the 1991 Act before 20 March 2000; and

                     (b)  the application was not determined before 20 March 2000;

the application has effect, on and from 20 March 2000, as if it were an application under section 179 of this Act.

             (2)  The date of effect of the decision made in response to the application may be before 20 March 2000.

             (3)  If:

                     (a)  subsection (1) applies to an application; and

                     (b)  the date of effect of the decision made in response to the application is before 20 March 2000;

the decision has effect, for the period that starts on the date of effect of the decision and ends on 19 March 2000, as if it were a decision made under the 1991 Act.

255  Saving of steps in review process

                   If:

                     (a)  a person made an application under section 1240, 1247 or 1283 of the 1991 Act before 20 March 2000; and

                     (b)  the application was not determined before 20 March 2000;

anything done under, or for the purposes of, a provision of the 1991 Act before 20 March 2000 has effect, on and after that date, as if it had been done under, or for the purposes of, the corresponding provision of this Act.

256  Entitlements and liabilities

             (1)  Subsection (2) applies to an amount that:

                     (a)  would have been payable on or after 20 March 2000; and

                     (b)  represents an entitlement that arose before 20 March 2000 under a provision of the 1991 Act as in force before that date.

             (2)  For the purposes of section 242, an amount to which this subsection applies is taken to be payable, on and after 20 March 2000, under the social security law.

             (3)  A debt due under the 1991 Act before 20 March 2000 and remaining unpaid on that date is taken to be a debt due under the social security law.

257  Transitional regulations

             (1)  The Governor-General may make regulations prescribing matters in relation to any transitional matters (including prescribing any saving or application provisions) arising out of the enactment of this Act.

             (2)  Without limiting subsection (1), and in spite of any other provision of this or any other Act, regulations made by virtue of subsection (1) may:

                     (a)  modify the effect of a provision of this Part (other than this section); or

                     (b)  substitute another provision for any provision of this Part (other than this section); or

                     (c)  add a provision to this Part (other than this section).


Schedule 1Dictionary

Note:       See section 3.

  

  

1  Definitions

             (1)  In this Act:

1991 Act means the Social Security Act 1991.

AAT means the Administrative Appeals Tribunal.

authorised review officer means an officer authorised under section 235 to perform duties as an authorised review officer for the purposes of the social security law.

concession card means:

                     (a)  a pensioner concession card; or

                     (b)  a health care card; or

                     (c)  a seniors health card.

social security periodic payment means:

                     (a)  a social security benefit; or

                     (b)  a social security pension; or

                     (c)  carer allowance; or

                      (f)  double orphan pension; or

                     (g)  mobility allowance; or

                      (i)  pensioner education supplement.

SSAT means the Social Security Appeals Tribunal.

transfer day, in relation to a transferee to a social security pension or benefit, has the meaning given by subclause (2) or (3), as the case requires.

transferee, in relation to a social security pension or benefit, has the meaning given by subclause (2) or (3), as the case requires.

             (2)  If:

                     (a)  a social security pension or benefit (the old payment) ceases to be payable to a person otherwise than because another social security payment becomes payable to the person; and

                     (b)  immediately after the old payment ceases to be payable, the person is qualified for another social security pension or benefit (the new payment); and

                     (c)  the person makes a claim for the new payment;

the person is a transferee to the new payment and the person’s transfer day is the day that immediately follows the last day on which the old payment is payable to the person.

             (3)  If:

                     (a)  a person becomes qualified for a social security pension or benefit (the new payment); and

                     (b)  immediately before becoming qualified for the new payment:

                              (i)  the person is a member of a couple; and

                             (ii)  the person’s partner is receiving a social security benefit; and

                     (c)  the person makes a claim for the new payment;

the person is a transferee to the new payment and the person’s transfer day is the day on which the person becomes qualified for the new payment.

Schedule 2Rules for working out start day

Note:       See section 42.