Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010 - 2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SECURITY AMENDMENT (SUPPORTING AUSTRALIAN VICTIMS OF TERRORISM
OVERSEAS) BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
SOCIAL SECURITY AMENDMENT (SUPPORTING AUSTRALIAN VICTIMS OF TERRORISM
OVERSEAS) BILL 2011
GENERAL OUTLINE
The Social Security Amendment (Supporting Australian Victims of Terrorism)
Bill will establish a framework for the provision of financial assistance
for Australians who are injured overseas as a result of terrorist acts and
for close family members of Australians who are killed overseas as a result
of terrorist acts.
The scheme acknowledges the special and tragic nature of terrorism by
establishing a comprehensive financial assistance framework for the
provision of assistance by amending the Social Security Act 1991, the
Social Security (Administration) Act 1999, the Income Tax Assessment Act
1997, the A New Tax System (Family Assistance) Act 1999, and the Health and
Other Services (Compensation) Act 1995.
In particular, the Bill will:
. enable Australians who are victims of a declared overseas terrorist
incident to claim financial support of up to $75,000
. enable the Prime Minister to declare that a relevant overseas terrorist
incident is one to which the Scheme applies
. establish eligibility criteria so that payments can be made to either
long-term Australian residents who are victims of a relevant overseas
terrorist act, or in the event of the death of a victim, close family
members
. ensure that victims are not required to repay or deduct Medicare or other
benefits from any payment received under the Scheme, and
. enable the enactment of legislative instruments to provide further
guidance on the amount of assistance that each victim, or close family
member, should receive.
How the Government assists and supports victims of terrorism overseas is an
important matter. In the past, Australia has provided targeted assistance
to Australians adversely affected by terrorist acts overseas. This has
been achieved using both statutory and ex gratia response measures,
enabling the Government's response to tragedies such as the Mumbai bombings
in 2008 to be flexible and tailored. Past forms of assistance have
included Disaster Health Care Assistance Schemes, ex gratia assistance,
consular and repatriation assistance, and immediate short term financial
assistance through the Australian Government Disaster Recovery Payment
(AGDRP). The provision of additional financial assistance under the
proposed scheme will supplement those existing measures.
The Bill proposes two categories of eligible individuals: primary victims
and secondary victims. A primary victim will be a person who is harmed as
a result of a declared overseas terrorist act. A secondary victim will be
a close family member of a person who dies as a result of a declared
overseas terrorist act.
Payments will be capped at $75,000 for both primary and secondary victims.
However, a person who is injured in a declared overseas terrorist act and
whose close family member also dies in the same declared overseas terrorist
act may claim as both a primary and a secondary victim and may receive
payments of up to $75,000 in relation to each claim. The payment for
secondary victims may be apportioned between eligible close family members.
FINANCIAL IMPACT STATEMENT
Over the past decade (since 11 September 2001) over 300 Australians have
been killed or injured in acts of terrorism overseas.
However, acts of terrorism are unexpected and unpredictable. As a result,
it is likely that the cost of this scheme will vary over time. It is
likely that there will be no payments made some years but a significant
number of payments made in other years.
Determination of the level of payment will be mainly made on the basis of
functional impairment. A maximum of $75,000 will apply in relation to any
person who is injured or dies as a direct result of a declared overseas
terrorist act.
NOTES ON CLAUSES
Clause 1 Short Title
This amendment provides that the Bill, once enacted, may be referred to as
the Social Security Amendment (Supporting Australian Victims of Terrorism)
Act 2011.
Clause 2 Commencement
This clause provides for the commencement of the provisions in the Bill.
It sets out a table in relation to commencement information.
Subclause (1)
Subclause (1) provides that each provision of the 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.
Item 1 of the table specifies that Sections 1 to 3 and anything in this Act
not elsewhere covered by this table commence on the day this Act receives
the Royal Assent.
Item 2 of the table specifies that Schedule 1 commences on a single day to
be fixed by Proclamation. However, it provides further that if any of the
provision(s) do not commence within the period of 6 months beginning on the
day the Act receives the Royal Assent, they commence on the day after the
end of that period.
The later commencement of Schedule 1 is to allow for the Australian Victims
of Terrorism Overseas Payment Principles to be in place before the Act
commences operation.
An explanatory note is provided at the end of the table to state that the
table relates only to the provisions of the Act as originally enacted. It
will not be amended to deal with any later amendments of this Act.
Subclause (2)
Subclause (2) provides that any information in column 3 of the table is not
part of this Act. It states that information may be inserted in this
column, or information in it may be edited, in any published version of
this Act.
Clause 3 Schedule(s)
This clause provides that each Act that is specified in a Schedule is
amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1 - Amendments
Part 1 - Main amendments
Social Security Act 1991
Item 1 - Subsection 23(1)
Item 1 inserts into the definitions, the Australian Victim of Terrorism
Overseas Payment or AVTOP and specifies that this means a payment under
Part 2.24AA. This has been done to simplify the drafting.
Item 2 - Subsection 23(1)
Item 2 inserts into the definitions, the AVTOP, which has the same meaning
as Australian Victim of Terrorism Overseas Payment, specified in Item 1.
Item 3 - Subsection 23(1)
Item 1 inserts into the definitions, the AVTOP Principles, and specifies
that this means the AVTOP Principles made by the Minister under
section 1061PAF. That section provides that the Minister must, by
legislative instrument, determine which principles are to be applied for
the purpose of determining the Australian Victim of Terrorism Overseas
Payment amount payable to a person. Section 1061PAF further provides a
list of factors that can be taken into account when determining the amount
of the payment.
Item 4 - Subsection 23(1)
Item 4 inserts the definition of close family member. This has the meaning
given by subsection 1061PAA(4), which provides that close family member
includes the person's partner, child, parent, sibling or legal guardian.
Item 5 - Subsection 23(1)
Item 5 inserts the definition of declared overseas terrorist act. It makes
clear that this is a terrorist act in respect of which there is a
declaration made by the Prime Minister under subsection 35B(1).
Item 6 - Subsection 23(1)
Item 6 inserts the definition of primary victim of a declared overseas
terrorist act. This has the meaning given by subsection 1061PAA(2). This
provides that a person is a primary victim of a declared overseas terrorist
act if that person was in a place where the terrorist act occurred and was
harmed as a direct result of the terrorist act.
Item 7 - Subsection 23(1)
Item 7 inserts the definition of secondary victim of a declared overseas
terrorist act. This has the meaning given by subsection 1061PAA(3). This
provides a person is a secondary victim of a declared overseas terrorist
act if the person is a close family member of a person who in a place where
the terrorist act occurred and died as a direct result of the terrorist
attack
Item 8 - Subsection 23(1)
Item 8 provides that the definition of a terrorist act has the same meaning
as in section 100.1 of the Criminal Code. This provides that a terrorist
act means an action or threat is done or made with the intention of
advancing a political, religious or ideological cause and they are done or
made with the intention of coercing or influencing by intimidation the
Commonwealth, a State, Territory or foreign country or intimidating the
public.
Item 9 - After section 35A
Item 9 inserts new Section 35B after section 35A. This new section
describes the procedures for an act to be a declared overseas terrorist
act.
Section 35B - Declared overseas terrorist act
Subsection (1)
Subsection (1) provides that the Prime Minister may declare in writing that
a terrorist act that occurs outside Australia is a declared overseas
terrorist act. This is effected by legislative instrument.
Not every terrorist act that occurs overseas will result in a
declaration activating the Australian Victim of Terrorism Overseas
Payment scheme. The act must be declared in writing by the Prime
Minister as a 'declared overseas terrorist act'. That declaration will
then be lodged as a legislative instrument. This measure will ensure
remote events are not drawn into the scheme.
Subsection (2)
Subsection (2) states that if the Prime Minister makes a declaration under
subsection (1), then the Minister is taken to have made a determination
under subsection 36(1) that the terrorist act is a major disaster. The
purpose of this subsection is to deem the major disaster declaration to
have been made, avoiding the requirement for the Minister to also make a
declaration.
Item 10 - At the end of subsection 36(1)
Item 10 provides for a note to be added at the end of subsection 36(1).
The note states that if the Prime Minister makes a declaration under
section 35B that a terrorist act is a declared overseas terrorist act, the
Minister is taken to have made a determination under subsection (1) of this
section that the terrorist act is a major disaster.
Item 11 - After Part 2.24
Part 2.24AA-Australian Victim of Terrorism Overseas Payment
Item 11 amends the Social Security Act by inserting a new Part 2.24AA
'Australian Victim of Terrorism Overseas Payment' after Part 2.24 of the
Act.
Part 2.24 provides for the Australian Government Disaster Recovery Payment
(AGDRP), which provides immediate benefits to Australians adversely
affected by a major disaster where this is determined by the responsible
Minister (the Attorney-General). AGDRP has been paid to assist victims of
overseas terrorist acts (or in the event of death to their next of kin).
This most recently occurred in response to the bombings in Mumbai in 2008.
Division 1-Qualification for Australian Victim of Terrorism Overseas
Payment
Division 1 provides qualification criteria for payment of an Australian
Victim of Terrorism Overseas Payment.
1061PAA - Qualification for Australian Victim of Terrorism Overseas
Payment
New Section 1061PAA sets out the qualification requirements.
Subsection (1)
Subsection (1) sets out the general criteria that a person must satisfy
for qualification of an Australian Victim of Terrorism Overseas
Payment.
Paragraph (1)(a)
Paragraph (1)(a) specifies that a person must be either the primary or
secondary victim of a declared overseas terrorist act. Primary and
secondary victims are defined in section 23. The act must also be a
'declared overseas terrorist act' as defined in section 35B.
Not all overseas terrorist acts will attract the application of the
scheme. This is a matter to be determined by the Prime Minister in
declaring that the act is a 'declared overseas terrorist act'.
Paragraph (1)(b)
Paragraph (1)(b) makes clear that a person who was involved in the
commission of the terrorist act will not be eligible for assistance
under the scheme. In addition, the person's close family members must
not be involved in the commission of the terrorist act.
A terrorist act is an offence under the Criminal Code. It is a clear
policy intention that those who are responsible for these events should
not profit from the incident. This is consistent with the Proceeds of
Crime Act 2002 which prevents criminals from receiving financial
advantage as a result of their criminal activities.
The intention of this provision is to ensure the close family members
of a person who was involved in the commission of the terrorist act are
ineligible for assistance under the scheme.
Paragraph (1)(c)
Paragraph (1)(c) provides that a person who is a resident on the day
the terrorist act occurred may be eligible. Paragraph (1)(c) also
provides that the Minister can provide that a class of persons who do
not satisfy the residency test can be eligible for assistance under a
determination.
Paragraph (1)(c)(i)
The purpose of subparagraph (1)(c)(i) is to establish that for a person
to qualify for an Australian Victim of Terrorism Overseas Payment they
must have a relationship with Australia. For the purposes of this
scheme, this is established through residency. Subparagraph (1)(c)(i)
makes it clear that the person qualifies if they are an Australian
resident on the day that the terrorist act occurred.
Australian resident is defined in subsection 7(2) of the Social
Security Act 1991 as a person who resides in Australia and is either an
Australian citizen, the holder of a permanent visa or a special
category visa holder who is a 'protected SCV holder'. The definition
of protected SCV holder is in subsection 7(2A) of the Social Security
Act 1991.
Paragraph (1)(c)(ii)
Subparagraph (1)(c)(ii) provides that a class of persons otherwise
eligible under proposed subsection 1061PAA(1), but who do not meet the
residency criteria, may be eligible for assistance under the scheme if
they are covered by a determination under subsection 1061PAA(6).
Notes
At the end of Subsection (1), there is a Note, which links declared
overseas terrorist act with section 35B.
Subsection (2)
Subsection (2) provides that a person is a primary victim of a declared
overseas terrorist act if that person was in a place where the
terrorist act occurred and was harmed as a direct result of the
terrorist act.
Paragraph (2)(a)
Paragraph (2)(a) provides that the person must be in the place where
the terrorist act occurred. The intention of paragraph (2)(a) is to
disqualify persons who have watched or heard of the event through any
form of public media from making a claim. Although they may be
distressed by observing or hearing of the event, this is not enough to
qualify for benefits.
The person must be physically 'in a place' where the overseas terrorist
act occurs. This could be in the hotel foyer, an adjacent car park or
across the road. However there must be close proximity to the overseas
terrorist act.
Paragraph (2)(b)
Paragraph (2)(b) provides a second requirement that the person must be
harmed (this can be physical or psychological harm). The intention is
to ensure that only those who sustain some form of injury receive
payment. Financial assistance should be available for people who
suffer harm. People whose injuries are not permanent or serious should
be eligible. However, they will receive a lower quantum than a person
whose injuries are more significant.
Subsection (3)
Subsection (3) provides the definition of a secondary victim if the
person is a close family member of a person who was in a place where
the terrorist act occurred and who died as a direct result of the
terrorist attack, provided that person died within two years of the day
the terrorist act occurred.
Paragraph (3)(a)
Paragraph (3)(a) provides that a person is a secondary victim of a
declared overseas terrorist act if the person is a close family member
of a person who was in a place where the terrorist act occurred and who
died as a direct result of the terrorist attack.
Paragraph (3)(b)
Paragraph (3)(b) provides that to be a secondary victim, the deceased
must die before the end of two years starting on the day the terrorist
act occurred. The intention is to also provide a benefit for secondary
victims even where the victim does not die immediately at the time of
the overseas terrorist act provided that the cause of death is as a
direct result of the overseas terrorist act.
The question of whether this is a 'direct result' is a question of
fact. This should be determined by medical evidence. If the injuries
sustained during the terrorist attack are a significant contributing
cause of death this would suffice.
Subsection (4)
Subsection (4) clarifies that the expression close family member means:
. the person's partner; or
. the person's child; or
. the person's parent; or
. the person's sibling; or
. the person's legal guardian.
There may be a number of family members who qualify for payment under this
scheme.
This definition of close family member is different from the definition of
"immediate family member" which can be found in s23 of the of the Social
Security Act 1991 and means an individual who is a parent, step-parent, a
grandparent, sibling or legal guardian of the person. This definition does
include grandparent but does not include child.
This definition of close family member includes "partner" as provided in
section 4, "child" and "parent" in section 5, and "sibling" in section 23,
of the Social Security Act 1991. "Sibling" includes half brothers and
sisters, and adoptive brothers and sisters are also included.
Subsection (5)
Subsection (5) clarifies what is meant by a person who was involved in
the commission of a declared overseas terrorist act. This includes a
situation where the person has
. aided, abetted, counselled or procured the terrorist act; or
. induced the terrorist act, whether through threats or promises or
otherwise; or
. was in any way (directly or indirectly) knowingly concerned in, or a
party to, the terrorist act; or
. conspired with others to effect the terrorist act.
The intention is to include persons who engage in activities that could
contribute to the overseas terrorist act.
Subsection (6)
Subsection (6) provides that the Minister may make a determination by
legislative instrument in relation to a specified class of persons for
the purposes of qualification for a payment in subsection (1).
This subsection is intended provide the Minister with flexibility to
enable a class of persons to qualify where they may otherwise be
ineligible on the basis of residency but a payment is considered
appropriate. There may be cases where a class of persons have good
reasons for not satisfying the residency test but still have a
sufficient nexus with Australia to receive an Australian Victim of
Terrorism Overseas Payment.
1061PAB Whether a person can be qualified for more than one AVTOP in
relation to the same terrorist act
This section provides some reasonable limitations on the number of
claims that can be made to ensure that the legislation does not create
inequities.
Subsection (1)
Subsection (1) provides that a person cannot be qualified as a primary
victim for more than one Australian Victim of Terrorism Overseas
Payment in relation to the same declared overseas terrorist act.
The intention here is that the primary victim will only be able to
submit one claim for one overseas terrorist act, even if the person has
multiple injuries. The maximum amount payable is $75,000 in relation
to any declared overseas terrorist act.
Subsection (2)
Subsection (2) provides that a person cannot be qualified as a
secondary victim for more than one Australian Victim of Terrorism
Overseas Payment in relation to the same close family member who has
died as a direct result of the declared overseas terrorist act.
Subsection (3)
Subsection (3) provides that a person can be qualified for more than
one Australian Victim of Terrorism Overseas Payment in relation to the
same declared overseas terrorist act. A victim could qualify as both a
primary victim if the person was injured, and also as a secondary
victim if a close family member died in the same terrorist act.
Alternatively, a person could claim in relation to two or more close
family members who died in the same terrorist act.
Paragraph (3)(a)
Paragraph 3(a) provides that a person may qualify for more than one
Australian Victim of Terrorism Overseas Payment if the person is both a
primary victim and a secondary victim of the terrorist act. This would
include a situation where a person is injured and the person is the
close family member of a person or more than one person who dies as a
result of the same declared overseas terrorist act. The maximum such a
person could claim would be $150,000.
Paragraph 3(a) also makes clear that a person may qualify for more than
one Australian Victim of Terrorism Overseas Payment if that person is a
secondary victim in relation to more than one close family member.
This would include a situation where a person is the close family
member of more than one person who dies as a result of the same
declared overseas terrorist act. The maximum such a person could claim
would be $75,000.
Paragraph 3(b)
Paragraph 3(b) clarifies that a person may qualify for more than one
Australian Victim of Terrorism Overseas Payment if the person is a
secondary victim in relation to more than one close family member. The
maximum such a person could claim would be $75,000.
Division 2-Payability of Australian Victim of Terrorism Overseas Payment to
secondary victims
Division 2 sets out criteria for how secondary victims may receive the
Australian Victim of Terrorism Overseas Payment.
Section 1061PAC When AVTOP for secondary victims not payable
Section 1061PAC provides that an Australian Victim of Terrorism Overseas
Payment will not be payable to a secondary victim in relation to a close
family member who has died as a direct result of a declared overseas
terrorist attack, where an Australian Victim of Terrorism Overseas Payment
has already been granted in relation to the close family member, or where
the Secretary has notified the person of their entitlement to claim an
Australian Victim of Terrorism Overseas Payment and the person failed to
lodge a claim within the specified timeframe.
Division 3-Amount of Australian Victim of Terrorism Overseas Payment
Division 3 specifies the maximum amount of the Australian Victim of
Terrorism Overseas Payment payable.
Section 1061PAD Amount of AVTOP for primary victim
Section 1061PAD provides that the payment to a primary victim is not to
exceed $75,000. This amount is comparable to Queensland and Western
Australian victims of crime schemes that provide for maximum payments
of up to $75,000.
Subsection (1)
Subsection (1) provides that the Secretary must determine the amount
payable to a person who is a primary victim of a declared overseas
terrorist act.
Under section 37 of the Social Security (Administration) Act 1999, the
Secretary has responsibility for determining claims (this includes the
amount of the payment). In this case, the responsible Secretary is the
Secretary of the Attorney-General's Department. He or she is able to
delegate his or her powers (including the function to determine claims)
under section 234 of that Act.
Subsection (2)
Subsection (2) provides that the Secretary must make the determination
on the basis of the AVTOP Principles in section 1061PAF.
Subsection (3)
Subsection (3) provides that the amount that can be paid must not
exceed $75,000.
Section 1061PAE Amount of AVTOP for Secondary Victim
Section 1061PAE provides that the payment to a secondary victim is not
to exceed $75,000.
Subsection (1)
Subsection (1) provides that the Secretary must determine the amount of
an Australian Victim of Terrorism Overseas Payment payable to a person
who is a secondary victim in relation to a close family member who has
died as a direct result of a declared overseas terrorist act.
Under section 37 of the Social Security (Administration) Act 1999, the
Secretary has responsibility for determining claims (this includes the
amount of the payment). In this case, the responsible Secretary is the
Secretary of the Attorney-General's Department. He or she is able to
delegate his or her powers (including the function to determine claims)
under section 234 of that Act.
Subsection (2)
Subsection (2) provides that the Secretary must make the determination
on the basis of the AVTOP Principles in section 1061PAF.
Subsection (3)
Subsection (3) provides that the amount payable must not exceed
$75,000.
Subsection (4)
Subsection (4) requires the Secretary, in determining the amount of the
relevant Australian Victim of Terrorism Overseas Payment, to ensure
that where the person is not the only secondary victim who has made a
claim in relation to a specific close family member, the total sum of
Australian Victim of Terrorism Overseas Payments paid in relation to
that close family member does not exceed $75,000.
Subsection (5)
The purpose of this subsection is to ensure that where a person is a
secondary victim in relation to more than one close family member, and
an Australian Victim of Terrorism Overseas Payment is payable in
relation to each of those close family members, the sum of Australian
Victim of Terrorism Overseas Payments paid to any one person must not
exceed $75,000.
The intention is to cap amounts payable to one secondary victim.
Historically acts of terrorism have occurred in public places where
whole families may be present. As such, it is possible that a child
could lose both parents in the one overseas terrorist act or a person
could lose both their spouse and a child or children. Although a
secondary victim may claim for more than one close family member,
payments made to one person are capped at $75,000.
This does not prevent another family member claiming a payment (as a
secondary victim) in respect of the same overseas terrorist act for a
related close family member. For example, an only child may make
claims in relation to each of his or her parents, who died as a direct
result of the terrorist act. However, the child could not receive more
than $75,000 as a secondary victim.
Section 1061PAF AVTOP Principles
Section 1061PAF provides for the Principles that will assist in
determining the amount of Australian Victim of Terrorism Overseas
Payment payable in any particular circumstance to any particular
claimant.
Subsection (1)
Subsection (1) provides that the Minister must determine the principles
to be applied to determine the amount of an Australian Victim of
Terrorism Overseas Payment.
These principles, known as the 'AVTOP Principles' are to be applied for
the purposes of determining the amount of Australian Victim of
Terrorism Overseas Payment payable to a person in relation to a
declared overseas terrorist act. They must be determined by the
Minister and made by legislative instrument.
Subsection (2)
Subsection (2) states that the AVTOP Principles may provide for certain
factors to be taken into account when determining the amount of the
payment. These are different for primary and secondary victims. These
factors listed in subsection (2) are not intended to limit the
operation of subsection (1).
Paragraph 2(a)
For a primary victim, these factors include:
i. the nature of the injury or disease suffered as a direct result of the
terrorist act
ii. the duration of the injury or disease
iii. the impact of the injury or disease on the person's bodily and mental
functions
iv. the impact of the injury or disease on the person's life
v. the likelihood of the person suffering future loss, injury or disease
as a direct result of the terrorist act
vi. the circumstances in which the injury or disease was incurred, and
vii. whether the person was directed by an official of Australia or a
foreign country not to go to the place where the terrorist act
occurred.
In relation to subparagraphs 2(a)(i) to (a)(iv), the nature of the
injuries, whether they were a direct result of the terrorist act, their
duration and impact are factors that can be taken into account in the
assessment process.
In relation to subparagraph 2(a)(v), the likelihood of future loss is
an important consideration to be taken into account when making an
assessment. As a primary victim may only submit one claim, it is
important that this claim reflects the true loss or harm from the
terrorist act. Victims may wish to lodge a claim quite quickly
following the terrorist act due to financial pressures. However, if
the victim's injuries have not yet stabilised or there is delayed
psychological injury, the assessed quantum may not fully realise the
extent of their future loss. The intention of this provision is to
allow for future loss when making the determination. The victim should
obtain medical advice in order to provide a correct prognosis of future
loss. This would cover a situation for example, where a person
receives injuries to his back and breaks his leg as a result of a
terrorist attack. An assessment based on the cost of his present
medical expenses and injuries is $30,000. However, the person develops
severe arthritis twelve months later which is ongoing. The person is
no longer able to work and is in continual pain. It would not be
possible for the person to submit a further claim because it would
create unnecessary ongoing administrative expenses and there needs to
be an incentive to delay claims until all injuries are apparent.
Accordingly, it is appropriate that possible future injuries be taken
into consideration when determining quantum.
Subparagraph 2(a)(vi) is designed to allow any other relevant
circumstances to be taken into consideration.
The effect of subparagraph 2(a)(vii) is that determination of a payment
may be affected by whether the person was directed not to go to the
place where the act occurred. The intention is that Australian Victim
of Terrorism Overseas Payments should not be made (or should be
limited) in cases where a person has wilfully or recklessly placed
themselves in a position of risk by ignoring warnings not to travel to
that foreign country. This is a factor for consideration in
determining the amount of benefits. It does not necessarily exclude a
person from benefits altogether. The reason is that there may be
mitigating factors (eg, entering the foreign country prior to the
official notification warning against travel, inaccessibility to the
internet or travelling to visit a dying relative).
Paragraph (2)(b)
For a secondary victim in relation to a close family member who has
died the factors that may be taken into consideration include:
i. whether the person was dependant on the close family member
ii. the nature of the relationship between the person and the close family
member
iii. the circumstances in which the close family member died
iv. whether the close family member was directed by an official of
Australia or a foreign country not to go to the place where the
terrorist act occurred
v. whether there are other persons who have made a claim for an Australian
Victim of Terrorism Overseas Payment as a secondary victim in relation
to the close family member
vi. if there are such other secondary victims and the person and each of
the other secondary victims agree on the amount of an Australian Victim
of Terrorism Overseas Payment that each should be paid-that agreement
vii. if there are such other secondary victims and the person and each of
the other secondary victims have not agreed on the amount of an
Australian Victim of Terrorism Overseas Payment that each should be
paid-whether the person has also made a claim as a secondary victim in
relation to another close family member.
Subparagraphs 2(b)(i) and (ii) recognise that dependency and
relationship considerations are important in the assessment process.
Subparagraph (2)(b)(i) provides that the circumstances in which the
close family died in the declared overseas terrorist act may be taken
into consideration when determining the amount of the payment.
The effect of subparagraph 2(b)(iv) is that determination of a payment
may be affected by whether the close family member who died was
directed not to go to the place where the act occurred. The intention
is that Australian Victim of Terrorism Overseas Payments should not be
made (or should be limited) in cases where a person has wilfully or
recklessly placed themselves in a position of risk by ignoring warnings
not to travel to that foreign country. This is a factor for
consideration in determining the amount of benefits. It does not
necessarily exclude a person from benefits altogether. The reason is
that there may be mitigating factors (eg, entering the foreign country
prior to the official notification warning against travel,
inaccessibility to the internet or travelling to visit a dying
relative).
Subparagraph 2(b)(v), (vi) and (vii) address complex interrelationship
issues which will differ in each family situation. These need to be
assessed on an individual basis.
Paragraph (2)(c)
Paragraph (2)(c) lists factors that may be relevant to the
determination of a claim by a primary or a secondary victim.
Paragraph(2)(c)(i)
Paragraph (2)(c)(i) states that where there was travel advice on an
Australian Government website advising against travelling to that
place, that can be taken into account when determining the amount of
the payment. However, there may be circumstances where a person acts
contrary to those directions, choosing to place themselves at risk
because they have strong personal reasons (entering a bomb site in
order to rescue a close family member). It may not be appropriate to
disqualify a person from benefits in these circumstances, although it
may still be a factor in determining quantum payable.
Paragraph(2)(c)(ii)
Paragraph (2)(c)(ii) recognises that there may be situations where a
person has been paid or is likely to be paid amounts by the
Commonwealth, a State, a Territory or a foreign country or another
person or entity in relation to the terrorist act.
Payments may include State victims of crime schemes where payment is
made for incidents outside the jurisdiction, and instances where
victims receive compensation for damages from another country. This
may be as a dual citizen or as a foreign national. For example, in
relation to the 11 September 2001 events, the USA compensation scheme
provided for benefits to foreign nationals. Payments could also be made
by other persons or entities. Consideration of those payments can be
taken into account in the assessment process for an Australian Victim
of Terrorism Overseas Payment.
Section 1061PAG Consultation on the AVTOP Principles
Section 1061PAG provides for the Minister to undertake consultation when
determining the AVTOP Principles under section 1061PAF.
Subsection (1)
Subsection (1) lists the groups to be consulted, or consultation groups,
for the purposes of determining the AVTOP Principles.
Subsection (2)
Subsection (2) provides for ongoing consultation by the Minister each year,
following the commencement of the AVTOP Principles.
Subsection (3)
Subsection (3) provides that a failure to consult will not affect the
validity of the AVTOP Principles.
Social Security (Administration) Act 1999
Items 12 to 14
Items 12 to 14 make changes to the Social Security (Administration) Act
1999.
Item 12 - After Subdivision FA of Division 1 of Part 3
Item 12 inserts new Subdivision FB 'Time limit for claims for AVTOP' after
Subdivision FA of Division 1 of Part 3 of the Social Security
(Administration) Act.
Subdivision FB-Time limit for claims for AVTOP
Section 27B Time limit for claims for AVTOP
New Section 27B provides a time limit for making a claim for an Australian
Victim of Terrorism Overseas Payment.
Subsection (1)
Subsection (1) provides that a claim for an Australian Victim of Terrorism
Overseas Payment by a primary victim of a declared overseas terrorist act
must be lodged within 2 years after the day the declaration is made under
section 35B of the 1991 Act.
As only one claim may be lodged by the primary victim for injuries incurred
as a direct result of the declared overseas terrorist act, the intention is
to provide a reasonable time frame for the primary victim to lodge a claim.
The two year period is considered sufficient time for the injuries to
stabilise. The financial principles will also provide for future prognosis
of injury to be considered at the time of determination of the assessment.
A limitation period is necessary to enable effective administration of
claims and to enable closure. A limitation period is consistent with
common law claims and also State and Territory victims of crime
compensation schemes.
Subsection (2)
Subsection (2) provides that a claim for an Australian Victim of Terrorism
Overseas Payment by a secondary victim of a declared overseas terrorist act
must be lodged within 12 months after the day the close family member to
whom the claim relates died.
The purpose of this provision is to allow for a secondary victim to lodge a
claim in respect of a close family member after the death of that member.
The requirement is that the claim must be lodged within 12 months after the
day of death of that close family member. As subsection 1061PAA(3)
provides that a secondary victim is entitled to make a claim provided the
relevant close family member died within two years of the day the terrorist
act occurred, in practice, a secondary victim will have up to three years
in which to make a claim. The intention is to allow sufficient time for a
grieving relative to submit a claim, while also providing a reasonable
closure period.
Subsection (3)
Subsection (3) enables a primary or secondary victim to make a claim after
the period referred to in subsection (1) or (2) has expired if the
Secretary is satisfied that there are special circumstances applying to the
person's claim that justify a late lodgement and the claim is lodged within
a reasonable period having regard to those circumstances.
The intention is to provide the Secretary with a discretion to allow a late
lodgement where special circumstances apply. Whether these special
circumstances apply is a matter for the Secretary.
Item 13 - At the end of Subdivision J of Division 1 of Part 3
Item 13 inserts new Section 35B Secondary victim claims for AVTOP.
35B Secondary victim claims for AVTOP
Subsection (1)
Subsection (1) provides that if a person makes a claim for an Australian
Victim of Terrorism Overseas Payment as a secondary victim in relation to a
close family member who has died, the Secretary must make reasonable
inquiries as to whether there are other persons who may also qualify for an
Australian Victim of Terrorism Overseas Payment as a secondary victim in
relation to the same close family member.
A secondary victim can only claim for one Australian Victim of Terrorism
Overseas Payment in relation to a person who has died. However, more than
one secondary victim can make a claim in relation to the same close family
member. Accordingly, there may be a number of qualifying secondary
victims. It is important that the most deserving close family member or
close family members are given opportunity to make a claim. The purpose of
this section is to place an obligation on the Secretary in so far as is
reasonable to make inquiries as to whether there are other qualifying close
family members.
Subsection (2)
Subsection (2) provides that if the Secretary considers there are other
persons who may wish to make a claim as a secondary victim, the Secretary
must notify each of those persons that:
(a) the person may make a claim for an Australian Victim of
Terrorism Overseas Payment as a secondary victim in relation to
the close family member; and
(b) the person must make a claim before the day specified in the
notice; and
(c) if the person fails to make a claim by that day, an Australian
Victim of Terrorism Overseas Payment in relation to the close
family member will not be payable to the person.
The purpose is to ensure that so far as possible all close family members
are notified.
Subsection (3)
Subsection (3) requires the Secretary to allow for at least 30 days for
secondary victims to make claims after the notice is given.
Subsection (4)
Subsection (4) allows the Secretary to provide for a longer notice period
if satisfied it is appropriate to do so.
Subsection (5)
Subsection (5) provides further guidance in the event the claim due date is
changed.
Paragraph (5)(a)
In the event the Secretary extend the claim due date under subsection (4),
the Secretary is required under paragraph (5)(a) to change the claim due
day for each of the potential claimants to the new claim day.
Paragraph (5)(b)
In addition, paragraph (5)(b) required the Secretary to give each of the
potential claimants a written notice of the new claim due day.
Paragraph (5)(c)
Paragraph (5)(c) clarifies that, if the claim due date is extended, that
extended date is the relevant specified timeframe for the purposes of
section 1061PAC(b)(ii) of the 1991 Act.
Item 14 - At the end of section 36
Item 14 adds new subsection (3) at the end of section 36. New subsection
(3) provides that if more than one person makes a claim for an Australian
Victim of Terrorism Overseas Payment as a secondary victim of a declared
overseas terrorist act in relation to the same close family member, the
Secretary must determine the claims at the same time.
The purpose is to ensure that all close family members have equal and fair
opportunity for their claims to be considered.
Part 2-Other amendments
This Part makes consequential amendments to other legislation.
A New Tax System (Family Assistance) Act 1999
Item 15 - After paragraph 7(c) of Schedule 3
Item 15 makes a consequential amendment to A New Tax System (Family
Assistance) Act 1999. It inserts subparagraph (ca) after paragraph 7(c) of
Schedule 3.
Schedule 3 provides for adjusted taxable income. Clause 7 lists tax free
pensions or benefits. It provides that those payments listed which are
received in an income year are tax free pensions or benefits for that year.
Item 15 inserts subparagraph (ca). It lists an Australian Victim of
Terrorism Overseas Payment under Part 2.24AA of the Social Security Act
1991 as a payment which is classed as a tax free benefit.
The effect is of this amendment is that Australian Victim of Terrorism
Overseas Payments will not be assessed for the purposes of family
assistance benefits.
Health and Other Services (Compensation) Act 1995
Item 16 - After paragraph 4(2)(b)
Item 16 makes a consequential amendment to the Health and Other Services
(Compensation) Act 1995. It inserts subparagraph 4(2)(ba) after
subparagraph 4(2)(b).
Section 4 of that Act provides a definition of compensation for the
purposes of the Act. The Act provides for reimbursement to the
Commonwealth for Medicare and other services from compensation payments.
Subsection 4(2) provides that certain payments are not classed as
compensation for the purposes of the Act.
Item 16 inserts subparagraph (2)(ba). It lists a payment of Australian
Victim of Terrorism Overseas Payment under Part 2.24AA of the Social
Security Act 1991. The effect of this amendment is to specifically exclude
Australian Victim of Terrorism Overseas Payments from the definition of
'compensation' for the purposes of that Act.
The purpose is to ensure that benefits received under Medicare or other
services received from the Commonwealth are not required to be repaid from
benefits received under the Australian Victim of Terrorism Overseas Payment
scheme.
Income Tax Assessment Act 1997
Item 17 - After Subsection 52-10(1J)
Item 17 makes a consequential amendment to the Income Tax Assessment Act
1997 by inserting new subsection 52-10(1K) after subsection 52-10(1J),
providing that Australian Victim of Terrorism Overseas Payments will be
exempt from income tax.
Item 18 - Section 52-40 (after table item 2AA)
Item 18 makes a consequential amendment to the Income Tax Assessment Act
1997. It inserts the Australian Victim of Terrorism Overseas Payment as
2AB to a table which lists the provisions of the Social Security Act 1991
under which social security payments are made that are wholly or partly
exempt from income tax under subdivision 52A of the Income Tax Assessment
Act 1997.
Safety, Rehabilitation and Compensation Act 1988
Item 19 - Subsection 48(9)
Item 19 makes a consequential amendment to the Safety, Rehabilitation and
Compensation Act 1988.
It repeals subsection 48(9) and substitutes a new subsection. The current
subsection excludes certain benefits from the definition of 'damages' for
the purposes of the Act.
New subsection 48(9) provides that damages do not include Australian Victim
of Terrorism Overseas Payments under Part 2.24AA of the Social Security Act
1991, and re-inserts the current existing exclusion.
Social Security Act 1991
Items 20 to 22 make consequential amendments to the Social Security Act
1991.
Item 20 - Subsection 14A(1) (after paragraph (da) of the definition of
liquid assets)
Item 20 amends Subsection 14A(1).
Section 14A provides the social security benefit liquid assets test
definitions. Existing subsection (1) provides a definition of 'liquid
assets' in relation to a person's cash and readily realisable assets and
includes a list of specified financial assets. Existing paragraph (1)(d)
excludes certain payments from this definition.
The proposed amendment inserts new paragraph (db) after paragraph (da).
Paragraph (db) lists the Australian Victim of Terrorism Overseas Payment as
an excluded payment. There is also a proviso that the Secretary should be
satisfied that the length of time since receiving the payment is still
reasonable in the circumstances.
The effect is to specifically exclude an Australian Victim of Terrorism
Overseas Payment from the definition of liquid assets for the purposes of
assessment for social security benefits under the Act.
Item 21 - Subsection 19B (after paragraph (g) of the definition of liquid
assets)
Item 21 amends Subsection 19B.
Section 19B provides the 'Financial hardship (Carer payment) liquid assets
test' definition. It specifically excludes certain financial assets from
this definition.
The proposed amendment inserts paragraph (h) after paragraph (g) of the
definition. Paragraph (h) adds the Australian Victim of Terrorism Overseas
Payment to this excluded list. There is also a proviso that Secretary
should be satisfied that the length of time since receiving the payment is
still reasonable in the circumstances.
The effect is to specifically exclude the Australian Victim of Terrorism
Overseas Payment from the definition of liquid assets for the purposes of
assessment of Financial hardship (Carer payment) benefits.
Item 22 - Subsection 23(1)
Item 22 inserts the definition of involved in the commission of a declared
overseas terrorist act. This has the meaning given by subsection
1061PAA(5), specified above.
Social Security (Administration) Act 1999
Items 23 to 27 make consequential changes to the Social Security
(Administration) Act 1999.
Item 23 - At the end of subsection 16(6)
Item 23 inserts new subparagraph (6)(c) at the end of subsection 16(6).
Section 16 outlines the procedures to be followed in making a social
security payment. Subsection 16(6) provides that the Secretary may approve
a place outside Australia for the lodgement of certain claims. New
subparagraph (6)(c) adds the words 'claims for AVTOP'.
The effect of this new item is to enable the Secretary to approve a place
outside Australia for the lodgement of Australian Victim of Terrorism
Overseas Payment claims.
Item 24 - After subsection 31(1)
Item 24 inserts new subsection (1A) after subsection 31(1).
Section 31 provides for the exclusion of certain claims from the
requirements of section 29. Section 29 sets out the general rule in
relation to residence requirements for claimants.
New subsection 31(1A) states that section 29 does not apply to a claim for
an Australian Victim of Terrorism Overseas Payment.
The intention is to exclude an Australian Victim of Terrorism Overseas
Payment claim from the general residency requirement provided for in the
Act.
Item 25 - Subsection 36(1)
Item 25 makes a technical amendment by omitting section (2) and
substituting "this section".
Item 26 - After section 46A
Item 26 inserts new Section 46B entitled 'Payment of AVTOP' after section
46A.
Section 46B Payment of AVTOP
Subsection (1)
Subsection (1) provides that a person's Australian Victim of Terrorism
Overseas Payment to be paid in accordance with section 47 unless the
Secretary makes a determination under subsection (2). Section 47 provides
for the payment of lump sum benefits.
Subsection (2)
Subsection (2) enables the Secretary to determine that the person's
Australian Victim of Terrorism Overseas Payment is to be paid by
instalments if the Secretary considers that this is appropriate. This is
consistent with the AGDRP.
Item 27 - Subsection 47(1) (after paragraph (aaa) of the definition of lump
sum benefit)
Item 27 inserts new subparagraph (aaa) after paragraph (aa) of the
definition of lump sum benefit. Subsection 47(1) provides a definition of
'lump sum benefit'. New paragraph (aaa) inserts the Australian Victim of
Terrorism Overseas Payment into the list of definitions, except where the
Secretary has made a determination under subsection 46B(2).