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A Bill for an Act to amend the law relating to family assistance, social security, veterans’ affairs, Aboriginal land rights and the Indigenous Land Corporation, and for related purposes
Administered by: Families, Housing, Community Services and Indigenous Affairs
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 21 Oct 2010
Introduced HR 20 Oct 2010

2010

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Bill 2010

 

No.      , 2010

 

(Families, Housing, Community Services and Indigenous Affairs)

 

 

 

A Bill for an Act to amend the law relating to family assistance, social security, veterans’ affairs, Aboriginal land rights and the Indigenous Land Corporation, and for related purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 2

Schedule 1—Special disability trusts                                                                           3

Social Security Act 1991                                                                                            3

Veterans’ Entitlements Act 1986                                                                              5

Schedule 2—Residence required to qualify for disability support pension                8

Social Security Act 1991                                                                                            8

Schedule 3—Scheduling of land                                                                                    10

Aboriginal Land Rights (Northern Territory) Act 1976                                    10

Schedule 4—Indigenous Land Corporation                                                           12

Aboriginal and Torres Strait Islander Act 2005                                                 12

Schedule 5—Family tax benefit                                                                                    13

A New Tax System (Family Assistance) Act 1999                                                13

A New Tax System (Family Assistance) (Administration) Act 1999                15

Schedule 6—Pension reform measures                                                                    17

Social Security Act 1991                                                                                          17

Veterans’ Entitlements Act 1986                                                                            18

Schedule 7—Minor corrections                                                                                    20

Social Security Act 1991                                                                                          20

Social Security (Administration) Act 1999                                                          20

 


A Bill for an Act to amend the law relating to family assistance, social security, veterans’ affairs, Aboriginal land rights and the Indigenous Land Corporation, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2010.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedules 1 and 2

1 January 2011.

1 January 2011

3.  Schedules 3 and 4

The day after this Act receives the Royal Assent.

 

4.  Schedules 5, 6 and 7

The day this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in Column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Special disability trusts

  

Social Security Act 1991

1  After paragraph 1209L(e)

Insert:

                    (ea)  the trust expenditure requirements, if any (see section 1209RA);

2  Paragraph 1209M(2)(c)

Repeal the paragraph, substitute:

                     (c)  the beneficiary must have a disability as a result of which either:

                              (i)  he or she is not working, and has no likelihood of working, for more than 7 hours a week for a wage that is at or above the relevant minimum wage; or

                             (ii)  he or she is working for wages set in accordance with the program administered by the Commonwealth known as the supported wage system.

3  Subsection 1209N(1)

Omit “sole”, substitute “primary”.

Note:       The heading to subsection 1209N(1) is altered by omitting “Sole” and substituting “Primary”.

4  Subsections 1209N(2), (3) and (4)

Repeal the subsections, substitute:

Other purposes

             (2)  The trust may have other purposes that are:

                     (a)  both ancillary to the primary purpose and necessary or desirable to facilitate the achievement of that purpose; or

                     (b)  primarily for the benefit of the principal beneficiary.

Note 1:       A particular purpose may be covered by both of paragraphs (2)(a) and (b).

Note 2:       The application of the income and assets of the trust for purposes (other than the primary purpose) that are primarily for the benefit of the principal beneficiary is dealt with by section 1209RA.

Guidelines relating to purposes

             (3)  If guidelines are made under subsection (4) then, for the purposes of this section:

                     (a)  the reasonable care and accommodation needs of a principal beneficiary of a special disability trust must be decided in accordance with the guidelines if they deal with those needs; and

                     (b)  purposes, other than the primary purpose of a special disability trust, that are primarily for the benefit of the principal beneficiary of a trust must be decided in accordance with the guidelines if they deal with those other purposes.

             (4)  The Secretary may, by legislative instrument, make guidelines for deciding either or both of the following for the purposes of this section:

                     (a)  what are, and what are not, reasonable care and accommodation needs for beneficiaries of trusts;

                     (b)  what are, and what are not, trusts’ purposes, other than the primary purpose described in subsection (1), that are primarily for the benefit of beneficiaries of the trusts.

5  After section 1209R

Insert:

1209RA  Trust expenditure requirements

Limit on expenditure for purposes other than primary purpose

             (1)  If:

                     (a)  a determination has been made under subsection (3); and

                     (b)  the trust has one or more purposes, other than its primary purpose described in subsection 1209N(1), that are primarily for the benefit of the principal beneficiary;

the total value of the income and assets of the trust applied for those other purposes in a financial year must not exceed the value specified in the determination for that year.

Instruments fixing limits and purposes to be taken into account

             (2)  If guidelines are made under paragraph 1209N(4)(b), the question whether a purpose for which income and assets of a trust have been applied is one of the other purposes described in subsection (1) must be decided in accordance with the guidelines.

Note:          Paragraph 1209N(4)(b) provides for guidelines for deciding what are, and what are not, trusts’ purposes, other than the primary purpose described in subsection 1209N(1), that are primarily for the benefit of beneficiaries of the trusts.

             (3)  The Secretary may, by legislative instrument, determine the total value of income and assets of a special disability trust that may be applied in a specified financial year for purposes, other than the primary purpose described in subsection 1209N(1), that are primarily for the benefit of the principal beneficiary of the trust.

Veterans’ Entitlements Act 1986

6  After paragraph 52ZZZW(e)

Insert:

                    (ea)  the trust expenditure requirements, if any (see section 52ZZZWEA);

7  Paragraph 52ZZZWA(2)(c)

Repeal the paragraph, substitute:

                     (c)  the beneficiary must have a disability as a result of which either:

                              (i)  he or she is not working, and has no likelihood of working, for more than 7 hours a week for a wage that is at or above the relevant minimum wage within the meaning of subsection 23(1) of the Social Security Act; or

                             (ii)  he or she is working for wages set in accordance with the program administered by the Commonwealth known as the supported wage system.

8  Subsection 52ZZZWB(1)

Omit “sole”, substitute “primary”.

Note:       The heading to subsection 52ZZZWB(1) is altered by omitting “Sole” and substituting “Primary”.

9  Subsections 52ZZZWB(2), (3) and (4)

Repeal the subsections, substitute:

Other purposes

             (2)  The trust may have other purposes that are:

                     (a)  both ancillary to the primary purpose and necessary or desirable to facilitate the achievement of that purpose; or

                     (b)  primarily for the benefit of the principal beneficiary.

Note 1:       A particular purpose may be covered by both of paragraphs (2)(a) and (b).

Note 2:       The application of the income and assets of the trust for purposes (other than the primary purpose) that are primarily for the benefit of the principal beneficiary is dealt with by section 52ZZZWEA.

Guidelines relating to purposes

             (3)  If guidelines are made under subsection (4) then, for the purposes of this section:

                     (a)  the reasonable care and accommodation needs of a principal beneficiary of a special disability trust must be decided in accordance with the guidelines if they deal with those needs; and

                     (b)  purposes, other than the primary purpose of a special disability trust, that are primarily for the benefit of the principal beneficiary of a trust must be decided in accordance with the guidelines if they deal with those other purposes.

             (4)  The Commission may, by legislative instrument, make guidelines for deciding either or both of the following for the purposes of this section:

                     (a)  what are, and what are not, reasonable care and accommodation needs for beneficiaries of trusts;

                     (b)  what are, and what are not, trusts’ purposes, other than the primary purpose described in subsection (1), that are primarily for the benefit of beneficiaries of the trusts.

10  After section 52ZZZWE

Insert:

52ZZZWEA  Trust expenditure requirements

Limit on expenditure for purposes other than primary purpose

             (1)  If:

                     (a)  a determination has been made under subsection (3); and

                     (b)  the trust has one or more purposes, other than its primary purpose described in subsection 52ZZZWB(1), that are primarily for the benefit of the principal beneficiary;

the total value of the income and assets of the trust applied for those other purposes in a tax year must not exceed the value specified in the determination for that year.

Note:          For tax year see subsection 5Q(1).

Instruments fixing limits and purposes to be taken into account

             (2)  If guidelines are made under paragraph 52ZZZWB(4)(b), the question whether a purpose for which income and assets of a trust have been applied is one of the other purposes described in subsection (1) must be decided in accordance with the guidelines.

Note:          Paragraph 52ZZZWB(4)(b) provides for guidelines for deciding what are, and what are not, trusts’ purposes, other than the primary purpose described in subsection 52ZZZWB(1), that are primarily for the benefit of beneficiaries of the trusts.

             (3)  The Commission may, by legislative instrument, determine the total value of income and assets of a special disability trust that may be applied in a specified tax year for purposes, other than the primary purpose described in subsection 52ZZZWB(1), that are primarily for the benefit of the principal beneficiary of the trust.

11  Application

The amendments made by this Schedule apply to trusts:

                     (a)  whether they were created before, on or after the commencement of this Schedule; and

                     (b)  whether or not they were special disability trusts under the Social Security Act 1991 or the Veterans’ Entitlements Act 1986 before the commencement of this Schedule.

Schedule 2Residence required to qualify for disability support pension

  

Social Security Act 1991

1  After paragraph 94(1)(e)

Insert:

                    (ea)  either:

                              (i)  the person is an Australian resident; or

                             (ii)  the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person; and

2  After paragraph 94A(1)(j)

Insert:

                     (ja)  either:

                              (i)  the person is an Australian resident; or

                             (ii)  the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person; and

3  At the end of subsection 94A(1)

Add:

Note:          For Australian resident see section 7.

4  At the end of subsection 95(1)

Add:

             ; and (d)  either:

                              (i)  the person is an Australian resident; or

                             (ii)  the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

5  Section 1212

Insert:

Australian resident disability support pensioner means a person who qualifies for disability support pension only because he or she is an Australian resident.

6  Section 1212

Insert:

terminally ill overseas disability support pensioner means a person who qualifies for disability support pension because all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

7  Section 1217 (table item 3)

Repeal the item, substitute:

2

Disability support pension

Australian resident disability support pensioner

Any temporary absence

13 weeks (but see also sections 1218AA and 1218)

3

Disability support pension

Terminally ill overseas disability support pensioner

Any absence

Unlimited period

8  At the end of Part 3 of Schedule 1A

Add:

150  Persons exempt from requirement to be Australian residents to qualify for disability support pension

                   Paragraphs 94(1)(ea), 94A(1)(ja) and 95(1)(d) do not affect the qualification for disability support pension of:

                     (a)  a person to whom the provisions mentioned in subclause 128(1) continue to apply as described in that subclause; or

                     (b)  a person who is covered by a determination under clause 135.

Note:          Those paragraphs are in Subdivision A of Division 1 of Part 2.3, which is about qualification for disability support pension.


 

Schedule 3Scheduling of land

  

Aboriginal Land Rights (Northern Territory) Act 1976

1  Part 4 of Schedule 1 (after the item relating to BAUHINIA DOWNS)

Insert:

BORROLOOLA

All that land near Borroloola in the Northern Territory comprising:

                     (a)  the whole of Northern Territory Portion 2177 delineated on Survey Plan S2000/169 lodged with the Surveyor‑General, Darwin, known as Rarranggilawunyara and in the locality of Pellew Islands in the Northern Territory and containing an area of approximately 5.62 hectares; and

                     (b)  the whole of Northern Territory Portion 2178 delineated on Survey Plan S2000/169 lodged with the Surveyor‑General, Darwin, known as Niwawunala and in the locality of Pellew Islands in the Northern Territory and containing an area of approximately 2.66 hectares; and

                     (c)  the whole of Northern Territory Portion 2179 delineated on Survey Plan S2000/169 lodged with the Surveyor‑General, Darwin, known as Wanadjurara and in the locality of Pellew Islands in the Northern Territory and containing an area of approximately 6,840 square metres; and

                     (d)  the whole of Northern Territory Portion 2180 delineated on Survey Plan S2000/169 lodged with the Surveyor‑General, Darwin, known as Alolo and in the locality of Pellew Islands in the Northern Territory and containing an area of approximately 7.51 hectares; and

                     (e)  the whole of Northern Territory Portion 3900 delineated on Survey Plan S90/252D lodged with the Surveyor‑General, Darwin, known as Batten Point and in the locality of McArthur in the Northern Territory and containing an area of approximately 201.8 hectares; and

                      (f)  the whole of Northern Territory Portions 3997 and 3940 delineated on Survey Plan S90/316B lodged with the Surveyor‑General, Darwin, known as North Island and in the locality of Pellew Islands in the Northern Territory and containing an area of approximately 5,579 hectares.

2  Part 4 of Schedule 1 (after the item relating to PATTA)

Insert:

PORT PATTERSON ISLANDS

All that land being the whole of Northern Territory Portion 2621 delineated on Survey Plan S83/282 lodged with the Surveyor‑General, Darwin, known as Port Patterson Islands and in the locality of Bynoe Harbour in the Northern Territory and containing an area of approximately 591.4 hectares.


 

Schedule 4Indigenous Land Corporation

  

Aboriginal and Torres Strait Islander Act 2005

1  After subsection 191F(2)

Insert:

Supporting native title settlements

          (2A)  To the extent that the Indigenous Land Corporation performs its functions in supporting native title settlements, the Indigenous Land Corporation must have regard to any guidelines in force under section 191HA.

2  After section 191H

Insert:

191HA  Ministerial guidelines about supporting native title settlements

                   The Minister may, by legislative instrument, make guidelines for the purposes of subsection 191F(2A).

3  After subsection 191I(1)

Insert:

Interaction with guidelines under section 191HA

          (1A)  Guidelines referred to in subsection (1) have no effect to the extent to which they are inconsistent with guidelines referred to in section 191HA.

Note:       The heading to section 191I is altered by omitting “Guidelines” and substituting “Indigenous Land Corporation guidelines”.

4  Subsection 191I(2)

After “guidelines”, insert “referred to in subsection (1)”.


 

Schedule 5Family tax benefit

  

A New Tax System (Family Assistance) Act 1999

1  Subsection 3(1)

Insert:

studying overseas full‑time: see section 3C.

2  At the end of Division 1 of Part 2

Add:

3C  Meaning of studying overseas full‑time

                   For the purposes of this Act, studying overseas full‑time has the meaning given by a legislative instrument made by the Minister for the purposes of this section.

3  At the end of subsection 17B(1)

Add:

               ; or (c)  the individual is studying overseas full‑time in a way that would, in the Secretary’s opinion, assist or allow the individual to complete the final year of secondary school or an equivalent level of education.

4  Subsection 17B(4)

Omit “either or both”, substitute “one or more”.

5  After paragraph 17B(4)(a)

Insert:

                    (aa)  paragraph (1)(c);

6  Subsection 17B(5)

Omit “paragraph (1)(b) or (2)(c)”, substitute “paragraph (1)(b) or (c) or (2)(c)”.

7  At the end of paragraph 22(6)(d)

Add “or is studying overseas full‑time”.

Note:       The heading to subsection 22(6) is altered by adding at the end “or studying overseas full‑time”.

8  Subsection 22A(1) (paragraph (a) of the cell at table item 1, column headed “then the individual cannot be an FTB child of the adult if:”)

Repeal the paragraph, substitute:

(a) none of the following subparagraphs applies:

(i) the individual is undertaking full‑time study;

(ii) the individual is studying overseas full‑time;

(iii) the individual is undertaking primary education;

      and the individual has adjusted taxable income, for the income year in which the particular time occurs, that equals or exceeds the cut‑out amount (see subsection (2)); or

9  Paragraph 31(3)(a)

After “undertaking full‑time study”, insert “or was studying overseas full‑time”.

10  Subparagraph 34(1)(a)(iii)

After “undertaking full‑time study”, insert “or is studying overseas full‑time”.

11  Subsection 35(1) (paragraph (a) of the cell at table item 1, column headed “then the approved care organisation is not eligible for family tax benefit in respect of the individual if:”)

Repeal the paragraph, substitute:

(a) none of the following subparagraphs applies:

(i) the individual is undertaking full‑time study;

(ii) the individual is studying overseas full‑time;

(iii) the individual is undertaking primary education; and

12  Paragraph 65(2)(a)

After “undertaking full‑time study”, insert “or was studying overseas full‑time”.

13  Paragraph 29(3)(a) of Schedule 1

After “undertaking full‑time study”, insert “or is studying overseas full‑time”.

14  Subparagraph 36(2)(b)(i) of Schedule 1

After “undertaking full‑time study”, insert “or is studying overseas full‑time”.

15  Subparagraph 36(2)(b)(ii) of Schedule 1

After “undertaking full‑time study”, insert “or are studying overseas full‑time”.

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

16  Paragraph 32K(1)(b)

Repeal the paragraph, substitute:

                     (b)  none of the following subparagraphs applies:

                              (i)  the other individual is undertaking full‑time study;

                             (ii)  the other individual is studying overseas full‑time;

                            (iii)  the other individual is undertaking primary education;

17  Application

(1)        The amendments made by items 3 to 8, 10, 11 and 13 to 16 apply in relation to working out an individual’s or approved care organisation’s entitlement (if any) to family tax benefit in respect of days occurring on or after the commencement of those items.

(2)        The amendments made by items 9 and 12 apply in relation to deaths occurring on or after the commencement of those items.


 

Schedule 6Pension reform measures

  

Social Security Act 1991

1  Paragraph 8(1A)(b)

Repeal the paragraph, substitute:

                     (b)  that includes, but is not limited to:

                              (i)  salary, wages, commissions and employment‑related fringe benefits that are so earned, derived or received or taken to have been so earned, derived or received; and

                             (ii)  if the person is engaged on a continuing basis in that employer/employee relationship—a leave payment to the person;

2  Paragraph 8(1A)(e)

Repeal the paragraph, substitute:

                     (e)  if the person is not engaged on a continuing basis in that employer/employee relationship—a leave payment to the person; or

3  Subsection 8(1C)

Omit “paragraph (1A)(e)”, substitute “subsection (1A)”.

4  Paragraph 8(1C)(a)

Omit “sick leave”, substitute “personal/carer’s leave”.

5  Subsection 1073AA(6)

Repeal the subsection (not including the examples), substitute:

             (6)  If the person is a member of a couple, apply this section in relation to the person, and to the person’s partner, before applying point 1064‑E2 or point 1066‑E2 (whichever is relevant).

6  Subsection 1073AA(6) (example 1)

After “couple”, insert “and subsection (1) applies to David and Amy”.

7  Subsection 1073AA(6) (example 2)

After “couple”, insert “and subsection (1) applies to Ian and Simone”.

8  At the end of section 1073AA

Add:

             (7)  In working out a person’s employment income for the purposes of this section, disregard subsection 8(1B).

             (8)  If:

                     (a)  the person is a member of a couple; and

                     (b)  the person’s partner has an amount (the exempt amount) of employment income (within the meaning of section 46AB of the Veterans’ Entitlements Act 1986) disregarded under section 46AA of that Act;

then, in applying point 1064‑E2 or point 1066‑E2 (whichever is relevant), the ordinary income of the person’s partner is to be reduced by an amount equal to the exempt amount.

Veterans’ Entitlements Act 1986

9  Subsection 46AA(5)

Repeal the subsection (not including the examples), substitute:

Interpretation

             (5)  If the person is a member of a couple, apply this section in relation to the person, and to the person’s partner, before applying Point SCH6‑E3 of Schedule 6.

10  Subsection 46AA(5) (example 1)

After “couple”, insert “and subsection (1) applies to David and Amy”.

11  Subsection 46AA(5) (example 2)

After “couple”, insert “and subsection (1) applies to Ian and Simone”.

12  After subsection 46AA(5)

Insert:

          (5A)  If:

                     (a)  the person is a member of a couple; and

                     (b)  the person’s partner has an amount (the exempt amount) of employment income (within the meaning of the Social Security Act 1991) disregarded under section 1073AA of that Act;

then, in applying Point SCH6‑E3 of Schedule 6, the ordinary income of the person’s partner is to be reduced by an amount equal to the exempt amount.

13  Paragraph 46AB(1)(b)

Repeal the paragraph, substitute:

                     (b)  that includes, but is not limited to:

                              (i)  salary, wages, commissions and employment‑related fringe benefits that are so earned, derived or received or taken to have been so earned, derived or received; and

                             (ii)  if the person is engaged on a continuing basis in that employer/employee relationship—a leave payment to the person;

14  Paragraph 46AB(1)(e)

Repeal the paragraph, substitute:

                     (e)  if the person is not engaged on a continuing basis in that employer/employee relationship—a leave payment to the person; or

15  Subsection 46AB(2)

Omit “paragraph (1)(e)”, substitute “subsection (1)”.

16  Paragraph 46AB(2)(a)

Omit “sick leave”, substitute “personal/carer’s leave”.


 

Schedule 7Minor corrections

  

Social Security Act 1991

1  Subsection 1218(3)

After “not”, insert “to”.

Social Security (Administration) Act 1999

2  At the end of subsection 202(1)

Add:

                ; or (f)  the Digital Switch‑over Household Assistance Program.

3  Paragraph 202(2)(db) (the paragraph (db) inserted by item 2 of Schedule 1 to the Social Security Legislation Amendment (Digital Television Switch‑over) Act 2009)

Reletter as paragraph (dc).