Federal Register of Legislation - Australian Government

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Determinations/Social Security as made
This instrument modifies provisions of the Social Security Act 1991 and the Social Security (Administration) Act 1999 to extend qualification for income support payments and concession, where a recipient would otherwise cease to qualify due to a change in their or their partner’s employment income.
Administered by: Treasury
Registered 20 Jun 2020
Tabling HistoryDate
Tabled HR24-Aug-2020
Tabled Senate24-Aug-2020
Date of repeal 31 Dec 2020
Repealed by Coronavirus Economic Response Package Omnibus Act 2020
Repealing Comments Repeal of enabling provision by Schedule 11, item 40A(6).

EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Families and Social Services

 

Coronavirus Economic Response Package Omnibus Act 2020

 

Social Security (Coronavirus Economic Response – 2020 Measures No. 11) Determination 2020

 

Background

The Coronavirus Economic Response Package Omnibus Act 2020 (the Omnibus Act) amended the Social Security Act 1991 (the Act) to provide additional financial assistance to Australians financially impacted by the Coronavirus.

Item 40A of Schedule 11 to the Act allows the Minister to make a determination modifying the operation of the social security law relating to the qualification for, or the rate of, a social security payment.  The Minister must be satisfied that the determination is in response to circumstances relating to the Coronavirus known as COVID-19.  Such a determination is a legislative instrument subject to disallowance.

This determination is made in response to circumstances relating to the Coronavirus known as COVID-19.

This determination has no operation after 31 December 2020.

 

Purpose

The Social Security (Coronavirus Economic Response – 2020 Measures No. 11) Determination 2020 (the instrument) amends provisions of the Act and the Social Security (Administration) Act 1999 (the Administration Act) to extend qualification for income support payments and concession, where a recipient would otherwise cease to qualify due to a change in their or their partner’s employment income.

Under the Act, a person is taken to be receiving a payment where it is ‘payable’.  Where no longer payable or receiving payment the Secretary is required to suspend or cancel the payment under section 80 of the Social Security (Administration) Act 1999

However, section 23 of the Act enables a recipient to continue to be qualified for a ‘nil rate period’ of 12 weeks where the only reason that they cease to qualify is due to their or their partner’s employment income.

The intention of this instrument is to extend the length of active nil rate periods until August, so that the recipient can be taken to be qualified for an income support at a payment rate of nil.  This will apply to recipients on an active nil rate period before or on 22 June 2020.  Existing reporting obligations will continue to operate during this period as normal.

The instrument also amends subsections 23(4A) and 23(4AA) to ensure that recipients currently on a nil rate period will also retain access to the pensioner concession card (PCC) for the extended period. 

Finally, the instrument amends section 96 of the Social Security (Administration) Act 1999 (the Administration Act) to ensure that person receiving the Disability Support Pension (DSP) will not have their payment cancelled as a result of an increase in their partner’s income.

Currently, section 93 of the Administration Act operates to automatically cancel a DSP payment where the recipient’s circumstances change to the effect that they cease to qualify for the payment.  Section 96 of the Administration Act enables the Secretary to determine that the payment should not be cancelled, but suspended for a period of 2 years, in circumstances where an increase in income relates to the recipient.  There is no flexibility where the recipient ceases to be qualified due to their partner’s income.

To address this, the instrument amends section 96 to provide the Secretary with the flexibility to not cancel a person’s DSP payment.  The DSP recipient will instead have their payment suspended.  Should their circumstances changes within the 2 year suspension period, their DSP may resume without requiring a new claim.  The DSP recipient will also have the benefit of the extended 30 week access to the PCC.

The instrument is being made in response to the COVID-19 crisis, to ensure that income support recipients can more easily return to income support, if needed, as a result of temporary changes to their income during the period of ongoing economic uncertainty resulting from the COVID-19 outbreak.

Commencement

The instrument commences on the day after it is registered on the Federal Register of Legislation.

Consultation

The Department of Social Services consulted with Services Australia (the Agency) in developing this instrument.  The Agency is responsible for administering social security payments and will implement the effect of this instrument.

Due to the need to take urgent action to provide additional social security support to Australians affected by the unforeseen Coronavirus pandemic, no further consultation was undertaken on this instrument.

Regulation Impact Statement (RIS)

An exemption from the Regulation Impact Statement requirements was granted by the Prime Minister due to urgent and unforeseen events (OBPR ID: 26371).

Explanation of the provisions

Item 1 - Name

Item 1 provides the name of the instrument, the Social Security (Coronavirus Economic Response – 2020 Measures No. 11) Determination 2020.

Item 2 - Commencement

Item 2 sets out the commencement of the instrument as the day after it is registered on the Federal Register of Legislation.

Item 3 - Authority

Item 3 provides that the instrument is made under section 40A of Schedule 11 to the Omnibus Act.

Item 4 – Modifications

Item 4 provides that each modification of the operation of a provision of a social security law (within the meaning of the Social Security Act 1991) as set out in a Schedule to this Determination is determined for the purposes of item 40A of Schedule 11 to the Act.

Schedule 1 – Modifications of the Social Security Act 1991

Item 1 – Variation of section 23

Item 1 varies section 23.

Item 1(1) varies subsections 23(4A) and 23(4AA) to ensure that a person can be taken to be receiving payment and be payable when they would otherwise cease to qualify for payment due to employment income.  The amendment to subsection 23(4A) varies the existing wording in paragraphs 23(4A)(a) and (b) by inserting the words ‘or a social security pension or social security benefit is payable to a person’.

Item 1(2) amends subsection 23(4AA) inserts a new paragraph (da) to list subsection 1061ZA(1), which provides for qualification for the PCC. 

This amendment is being made to ensure that the a holder of the PCC will not cease to be qualified for it as a result of ceasing to be payable in respect of a social security pension.  In order to qualify for the PCC, subsection 1061ZA(1) of the Act requires that a person be payable in respect of a social security pension.

Item 1(3) varies section 23 by inserting a new subsection 23(4AB).  This will extend the length of an active nil rate period, which would have otherwise ceased, until August.  

As a result of these amendments, a recipient on an active nil rate period on the day after this instrument commences will be taken to be qualified and payable for an extended period, where they would otherwise cease to qualify due to their or their partner’s employment income. 

Schedule 2 – Modifications of the Social Security (Administration) Act 1999

Item 1 – Variation of section 96

Item 1(1) inserts a new subsection 96(2A) to vary the operation of the suspension of the disability support pension where that payment ceases to be payable to a person due to their payment rate being reduced to nil as a result of their partner’s, employment income.

This amendment ensures that a DSP recipient will benefit from the 30 week nil rate period where their payment rate is reduced to nil as a result of their partner’s employment income.  Currently, DSP recipients are only able to have their payment suspended.

Items 1(2) and 1(3) make minor technical amendments to paragraphs 96(3A)(A) and 96(4)(a) to reflect the above new subsection.

 

 

 

Minister for Families and Social Services, Senator the Hon Anne Ruston


 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

SOCIAL SECURITY (CORONAVIRUS ECONOMIC RESPONSE – 2020 MEASURES NO. 11) DETERMINATION 2020

 

The instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

The Social Security (Coronavirus Economic Response – 2020 Measures No. 11) Determination 2020 (the instrument) amends section 23 of the Social Security Act 1991 to temporarily extend the employment income nil rate period[1].  Under the instrument income support recipients will retain eligibility for payment until August 2020 if reduced to a nil rate of support due to income composed entirely or in part of employment income.

The instrument will support individuals during the period of ongoing economic uncertainty resulting from the COVID-19 outbreak by ensuring they can more easily return to income support, if needed, as a result of temporary changes to their income.  

Recipients retain access to concession cards, such as the Health Care Card, for the duration of the employment income nil rate period.  The instrument will enable income support recipients with employment income above their cut-out point to retain access to their concession cards and will prevent the need for these individuals to subsequently reapply for support, and potentially be required to serve a waiting period(s).  Access to the extended employment income nil rate period will occur from the day after the instrument is registered until August 2020.

Human rights implications

The Bill engages the following human rights or freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011:

·         the right to social security in Article 9 of the International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR).

Right to social security

Article 9 of the ICESCR recognises ‘the right of everyone to social security.’  The Committee on Economic, Social and Cultural Rights (CESCR) has described this right as encompassing the right to access and maintain benefits, in cash or in kind, provided in order to ensure protection in respect of social risks and contingencies.[2]  The elements of the right are:

·         a social security system is available for the provision of benefits

·         the social security system provides for coverage of social risks and contingencies

·         benefits, whether in cash or kind, are adequate and in amount and duration in order that everyone may realise rights contained in articles 10, 11 and 12 of the ICESCR, and

·         benefits are accessible.

The instrument will enhance the right to social security by making it easier for individuals to access benefits, both cash and in-kind, for the period between the day after the commencement of the instrument until August 2020.  All individuals currently eligible for an employment income nil rate period will enjoy an extended nil rate period if reduced to a nil rate of support as a result of employment income within the specified period.  The instrument will:

·         allow individuals to retain access to in-kind benefits such as concession cards for an additional nine fortnights

·         allow individuals to immediately recommence receiving cash benefits in the event that their employment income falls below their specified cut-out point for an additional nine fortnights, and

·         prevent the need for individuals with employment income to reapply for income support following the conclusion of the scheme.

In this way, the instrument enhances the right to social security as described in Article 9 of the ICESCR.  The instrument will not otherwise change the availability of social security, the amount or duration of social security, or the social risks and contingencies in respect of which the social security law affords protection.

Conclusion

The instrument is compatible with human rights because it enhances an individual’s ability to access and retain social security benefits.

 

 

Minister for Families and Social Services, Senator the Hon Anne Ruston

 

 



[1] The ‘employment income nil rate period’ is described in paragraphs 23(4A)(g) and 23(4A)(h) of the Social Security Act 1991.

[2] Committee on Economic, General Comment No 19: The right to social security (art 9), 39th sess, UN Doc E/C.12/GC/19 (4 February 2008), [10]-[27].