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2010-11
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SECURITY LEGISLATION AMENDMENT BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families, Housing, Community Services and
Indigenous Affairs, the Hon Jenny Macklin MP)
SOCIAL SECURITY LEGISLATION AMENDMENT BILL 2011
OUTLINE
This Bill makes amendments to support disadvantaged and vulnerable
Australians, and improve school attendance, as described below.
Income management
The Bill provides greater flexibility for the operation of income management,
so it can be implemented in the five new sites announced in the 2011-12
Budget. Amendments also ensure that income management may be
triggered by referrals from State and Territory agencies, such as the Alcohol
and Other Drug Tribunal in the Northern Territory.
School attendance plans
The Bill amends the provisions in the social security law that underpin the
Government's Improving School Enrolment and Attendance through Welfare
Reform Measure (known as SEAM). It enables some local tailoring of this
measure so the operation of SEAM can be integrated with the Northern
Territory Government's Every Child, Every Day initiative, to support greater
improvement of school attendance. Under the amended arrangements, a
parent may be required to attend a compulsory conference to discuss their
child's school attendance, to enter into a school attendance plan, and to
comply with the plan. Failure to meet the compliance arrangements provided
by the Bill would lead to suspension of a parent's income support payment,
unless certain circumstances apply.
Financial impact statement
Income management
There is no direct cost related to making these amendments. Future costs will
depend on the content of legislative instruments for new implementations.
School attendance plans
This measure forms part of the Stronger Futures in the Northern Territory
legislation package's expansion of the Improving School Enrolment and
Attendance through Welfare Reform Measure. The financial impact of
implementing that measure is $28.2 million over four years from 1 July 2011,
with the measures in this Bill commencing from 1 July 2012.
SOCIAL SECURITY LEGISLATION AMENDMENT BILL 2011
NOTES ON CLAUSES
Abbreviations used in this explanatory memorandum
· `Social Security Act' means the Social Security Act 1991
· `Social Security Administration Act' means the Social Security
(Administration) Act 1999
· `Veterans' Entitlements Act' means the Veterans' Entitlements
Act 1986
Clause 1 sets out how the new Act is to be cited, that is, as the Social
Security Legislation Amendment Act 2011.
Clause 2 provides a table that sets out the commencement dates of the
various sections in, and Schedules to, the new Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
1
Schedule 1 - Income management
Summary
This Schedule provides greater flexibility for the operation of income
management, to facilitate its implementation in the five new sites announced
in the 2011-12 Budget. The amendments also ensure that income
management may be triggered by referrals from State and Territory agencies,
such as the alcohol and drug tribunal in the Northern Territory.
Background
The income management regime under Part 3B of the Social Security
Administration Act operates as a tool to support vulnerable individuals and
families. It provides a tool to stabilise people's circumstances by limiting
expenditure of income support payments on excluded items, including
alcohol, tobacco, pornography, gambling goods and activities. A person
subject to the income management regime has an income management
account. Amounts are deducted from the person's welfare payments and
credited to the person's income management account. Amounts are debited
from the person's income management account for the purposes of enabling
the Secretary to take action directed towards meeting the priority needs of the
person. Income managed funds cannot be used for excluded items.
Income management triggered by State and Territory agency referral
The provisions in Part 1 of Schedule 1 amend Part 3B of the Social Security
Administration Act, inserting a new income management measure to enable
income management referrals from a range of State and Territory authorities.
The State and Territory authorities will be specified by legislative instrument,
and they will be able to make referrals for income management in a similar
way to the current child protection income management measure. This
measure could be used to accept referrals from the Northern Territory Alcohol
and Other Drug Tribunal. While the default deductible portion will be
70 per cent, the measure will also allow for varying deductible portions to be
set by legislative instrument, depending on the referring body, the person's
usual place of residence and the type of welfare payment the person is
receiving.
Enabling targeted place-based income management
The Building Australia's Future Workforce package announced in the 2011-12
Budget includes the introduction of targeted place-based income
management in five disadvantaged communities across Australia -
Playford (SA), Bankstown (NSW), Shepparton (Vic) and Rockhampton and
Logan (Qld).
2
In these communities from 1 July 2012, income management will apply to
vulnerable families and individuals, including:
· parents referred for income management by State or Territory child
protection authorities;
· people assessed by Centrelink social workers as being vulnerable to
financial crisis, which could include people referred by housing
authorities who are at risk of homelessness due to rental arrears; and
· people who volunteer for income management.
This Schedule makes minor legislative changes to allow these child
protection, vulnerable welfare payment recipient and voluntary income
management measures to apply without necessarily applying other measures
currently linked to the vulnerable measure. (At present, the long-term welfare
payment recipient and the disengaged youth income management measures
currently in place in the Northern Territory are linked to the child protection,
vulnerable welfare payment recipient and voluntary measures of income
management.)
The provisions will enable the Minister to specify separately, by legislative
instrument, States, Territories or areas in which the vulnerable, long-term
welfare payment and disengaged youth income management measures will
apply.
Continuing income management despite change of residence
Many of the current income management measures are location-specific.
That is, a person may be subject to income management as a vulnerable
welfare payment recipient, long-term welfare payment recipient or disengaged
youth only if their usual place of residence is within a declared income
management area. Similarly, a person may only volunteer to be income
managed if their usual place of residence is within a declared voluntary
income management area. However, having become subject to income
management, it may not be to the person's benefit for income management to
end upon their moving to reside outside the declared area. The current
provisions may also create an inappropriate incentive for people to move in
order to avoid income management. These amendments provide for income
management to continue despite a change in residence, provided the other
elements of income management qualification are maintained.
3
Minor amendment - exemptions for acceptable absences from school
Exemptions to the long-term welfare recipient and disengaged youth
measures of income management are available where people are engaged in
study or work, and for parents who demonstrate responsibility for their
children, like getting them to school and having regular health checks.
A person with dependent children may be exempt if each child is enrolled at
school and has had no more than five unacceptable absences in each of the
two school terms ending immediately before that time.
This Schedule makes a minor amendment to clarify the types of school
absence which would prevent a person being exempted from income
management. This will make it clearer that these types of absence are not
considered satisfactory to a person responsible for the operation of the school
(including a school principal, manager or truancy officer). Alternatively, if the
absences may not be satisfactory, but the person is taking reasonable steps
to ensure that the child attends school, they may nonetheless be exempt from
income management.
The amendments made by this Schedule commence on the later of
1 July 2012 and the 28th day after the Act receives the Royal Assent. This will
allow time for the necessary instruments to be made to support the
amendments, including specifying and, where necessary, re-specifying areas
in which affected measures will apply from commencement.
Explanation of the changes
Part 1 - State/Territory referrals
Amendments to the Social Security Act
Item 1 omits the reference in section 1061WG(1)(c) to section 123UE of the
Social Security Administration Act and substitutes a reference to both
section 123UE and the new section 123UFAA that is created by item 10
below. This amendment ensures that people subject to income management
under the new measure will qualify for the matched savings scheme.
Amendments to the Social Security Administration Act
Item 2 inserts a new paragraph (ga) into the simplified outline of income
management set out in section 123TA of the Social Security Administration
Act, to include a reference to the new external referral measure.
Item 3 inserts a definition of recognised State or Territory into
section 123TC by reference to new section 123TGAB inserted by item 6
below, which enables the Minister, by legislative instrument, to determine that
a specified State or Territory is a recognised State or Territory.
4
Item 4 inserts a definition of recognised State/Territory authority into
section 123TC to refer the reader to new section 123TGAA inserted by item 6
below.
Item 5 amends the definition of subject to the income management regime
in section 123TC to add a reference to the new external referral measure set
up in new section 123UFAA as set out in item 10 below.
Item 6 inserts new sections 123TGAA and 123TGAB after section 123TG.
New section 123TGAA provides that the Minister may determine, by
legislative instrument, that a specified department, or part of a department,
body or agency of a State or Territory is a recognised State/Territory authority
for the purposes of the new external referral power. New section 123TGAB
provides that the Minister may determine, by legislative instrument, that a
particular State or Territory is a recognised State or Territory for the purposes
of the new referral measure. These new sections provide the mechanism by
which the external referral measure is turned on in a particular area.
Items 7, 8 and 9 make minor amendments to paragraphs 123UCA(e),
123UCB(1)(f) and 123UCC(1)(f) to provide that a person who is subject to
income management under the external referral measure cannot be subject to
income management under the vulnerable, disengaged youth or long term
welfare recipient measures as well.
Item 10 inserts new section 123UFAA into Division 2 of Part 3B of the Social
Security Administration Act. The new section sets out how a person becomes
subject to income management under the new external referral measure.
Subsection 123UFAA(1) provides that a person will be subject to income
management at the test time if:
(a) the person or their partner is an eligible recipient of a category H
welfare payment;
(b) before the test time, an employee or officer of a recognised
State/Territory authority (as defined in new section 123TGAA) gave the
Secretary a written notice requiring that the person be subject to the
income management regime;
(c) the notice was given under either a law of, or the executive power of,
the recognised State or Territory;
(d) at the test time, the notice had not been withdrawn or revoked;
(e) at the test time, the State or Territory is a recognised State or Territory
(as defined in new section 123TGAB);
(f) if, at the test time, the person had a payment nominee - the payment
nominee is not an excluded payment nominee; and
5
(g) at the test time, the person is not subject to income management under
section 123UC, 123UD, 123UE or 123UF.
Subsection 123UFAA(2) provides that, for the purposes of Part 3B, a person
will also be subject to income management at the test time, if, at that time:
(a) the person is not subject to income management under any other
provision;
(b) the person had a payment nominee; and
(c) the payment nominee is subject to income management under
subsection 123UFAA(1).
Items 11, 12 and 13 make minor amendments to the circumstances in which
a voluntary income management agreement can be entered into by a person
and the Secretary, and when the agreement starts and terminates.
Item 11 makes amendments to paragraph 123UM(5)(a) to provide that a
person cannot enter into a voluntary income management agreement if they
are subject to income management under the external referral measure.
Item 12 makes amendments to subparagraph 123UN(1)(a)(v) to provide that
a voluntary income management agreement cannot start while a person is
subject to income management under the external referral measure.
Item 13 makes amendments to subparagraph 123UO(3)(b)(v) to provide that
a voluntary income management agreement will end if the person becomes
subject to income management under the external referral measure.
Item 14 makes minor amendments to paragraphs 123WJ(1)(c) and (d) to
provide that, if a person has a credit balance in their income management
account at the time they cease to be subject to income management under
the external referral measure, that credit balance can be paid to the person in
a manner specified in section 123WJ.
Section 123WJ provides that a credit balance may be paid directly to the
person by instalments or in a lump sum. Alternatively, with the consent of the
person, the credit balance can be used to pay an expense of the person, or
another person, or offset against a debt owed to the Commonwealth by a
person.
Item 15 inserts a new Subdivision DAA into Division 5 of Part 3B of the Social
Security Administration Act. Subdivision DAA deals with the deduction of
amounts from a person's relevant welfare payments under the income
management regime if the person is subject to income management under
new section 123UFAA (because of a referral from a recognised State/Territory
authority in relation to the person).
6
New section 123XPAA applies if a person is subject to income management
under new section 123UFAA and an instalment of a category I welfare
payment is payable to the person. The term category I welfare payment is
defined in section 123TC of the Social Security Administration Act. If
section 123XPAA applies, the Secretary must deduct 70 per cent (or another
percentage if the Minister has, by legislative instrument, specified another
percentage, which may be up to 100 per cent) of the net amount of that
payment and credit the person's income management account and the
Income Management Record accordingly. (The term net amount is defined in
section 123TC of the Administration Act.)
New section 123XPAB applies if a person is subject to income management
under new section 123UFAA and a payment of a category I welfare payment
is payable to the person other than by instalments (that is, by lump sum). If
section 123XPAB applies, the Secretary must deduct 100 per cent (or a lower
percentage if the Minister has, by legislative instrument, specified a lower
percentage) of the net amount that is payable and credit it to the person's
income management account and the Income Management Record
accordingly.
New subsections 123XPAA(4) and 123XPAB(4) provide that the Minister may
specify, in a legislative instrument, a different percentage to be deducted from
an instalment or lump sum payable to a person based on the type of welfare
payment received, where the person usually lives, and/or which
State/Territory authority has made the referral.
The Minister's capacity to make legislative instruments to specify varying
deductible portions provides for the greatest flexibility for this income
management measure to ensure the most appropriate levels of support for
people at risk relevant to their circumstances.
Item 16 inserts a new section 123ZDA into Division 7 of Part 3B of the Social
Security Administration Act. Section 123ZDA provides that, where a person is
no longer subject to income management under section 123UFAA because
they, or their partner, have their category I welfare payment cancelled, and
the notice from the recognised State/Territory authority has not been
withdrawn or revoked, the Secretary must give notice of the cancellation to an
officer or employee of the relevant recognised State/Territory authority as
soon as practicable.
7
Item 17 inserts a new section 123ZEAA. The new section 123ZEAA provides
that, despite any State or Territory law, an officer or employee of a recognised
State/Territory authority can give information about a particular person to the
Secretary if the officer or employee is considering whether to give a notice
under paragraph 123UFAA(1)(b) or the person in question is already subject
to income management under section 123UFAA, and the information being
disclosed is relevant to Part 3B (that is, the application of income
management). Where information has been provided to the Secretary by an
officer or employee of a recognised State/Territory authority, then the
Secretary will be authorised to release protected information back to an officer
or employee of the relevant recognised State/Territory authority for the
purposes of the performance of the functions and duties, or the exercise of
the powers, of the officer or employee in relation to the care, protection or
welfare of the person.
Item 18 is an application provision that ensures the new external referral
measure will only be effective in relation to referral notices given on or after
the commencement of this Act.
Part 2 - Other amendments
This Part amends the Social Security Administration Act.
Decoupling the vulnerable income management measure
The vulnerable, long-term welfare payment recipient and disengaged youth
measures are decoupled by empowering the Minister to declare areas
separately for the purposes of each measure.
Items 19, 20 and 21 are incidental to decoupling these measures. Item 19
repeals the definition of declared income management area, by reference to
section 123TFA. This definition currently applies commonly across all three
measures. Item 20 repeals section 123TFA. Item 21 inserts subsection (1)
before the existing paragraphs of section 123UCA, to allow for new
subsections (2) and (3) inserted by item 23 below.
Item 22 repeals and substitutes paragraph 123UCA(b), relating to the
vulnerable measure. New paragraph (b) replaces the previous reference to a
person's usual place of residence being within a declared income
management area with a requirement that the person's usual place of
residence is within a State, a Territory or an area specified in an instrument
under new subsection (3) (which will be inserted by item 23 below). This
wording provides the same scope for specification of areas as repealed
section 123TFA, which dealt with declared income management areas.
8
Item 24 repeals and substitutes paragraph 123UCB(1)(c) for the purposes of
the disengaged youth measure. New paragraph (c) replaces the previous
reference to a person's usual place of residence being within a declared
income management area with a requirement that the person's usual place of
residence be within a State, a Territory or an area specified in an instrument
under new subsection (4) (which will be inserted by item 25 below). This
wording provides the same scope for specification of areas as repealed
section 123TFA, which dealt with declared income management areas.
Item 26 repeals and substitutes paragraph 123UCC(1)(c) for the purposes of
the long-term welfare payment recipient measure. New paragraph (c)
replaces the previous reference to a person's usual place of residence being
within a declared income management area with a requirement that the
person's usual place of residence be within a State, a Territory or an area
specified in an instrument under new subsection (4) (which will be inserted by
item 27 below). This wording provides the same scope for specification of
areas as repealed section 123TFA, which dealt with declared income
management areas.
Continuing income management despite change of residence
Item 23 relates to the vulnerable measure provided by section 123UCA. New
subsection (2) provides that, if a person is subject to the income management
regime under subsection (1), and the person's usual place of residence
ceases to be within a State, a Territory or an area specified in an instrument
under subsection (3), and, at the time of that cessation, the other elements of
qualification for income management continue to apply, then the person
remains subject to the income management regime despite the change in
residence. However, if any of the other qualifying elements subsequently
cease to apply, then income management will end.
New subsection (3) empowers the Minister, by legislative instrument, to
specify a State, a Territory or an area for the purposes of section 123UCA.
Item 25 similarly relates to the disengaged youth measure provided by
section 123UCB. New subsection (3) provides that, if a person is subject to
the income management regime under subsection (1), and the person's usual
place of residence ceases to be within a State, a Territory or an area specified
in an instrument under subsection (4), and, at the time of that cessation, the
other elements of qualification for income management continue to apply,
then the person remains subject to the income management regime despite
the change in residence.
If any of the other qualifying elements subsequently cease to apply, then
income management will end. In any case, the continuation of income
management will end 13 weeks after the person's usual place of residence
ceased to be within the specified State, Territory or area. This measure will
end after 13 weeks because, unlike the vulnerable and child protection
measures, it is not subject to review at least annually.
9
New subsection (4) empowers the Minister, by legislative instrument, to
specify a State, a Territory or an area for the purposes of section 123UCB.
Item 27 similarly relates to the long-term welfare recipient measure provided
by section 123UCC. New subsection (3) provides that, if a person is subject
to the income management regime under subsection (1), and the person's
usual place of residence ceases to be within a State, a Territory or an area
specified in an instrument under subsection (4), and, at the time of that
cessation, the other elements of qualification for income management
continue to apply, then the person remains subject to the income
management regime despite the change in residence.
If any of the other qualifying elements subsequently ceases to apply, then
income management will end. In any case, the continuation of income
management will end 13 weeks after the person's usual place of residence
ceased to be within the specified State, Territory or area. This measure will
end after 13 weeks because, unlike the vulnerable and child protection
measures, it is not subject to review at least annually.
New subsection (4) empowers the Minister, by legislative instrument, to
specify a State, a Territory or an area for the purposes of section 123UCC.
Item 31 repeals subparagraph 123UO(3)(b)(ii), to remove the requirement for
the Secretary to terminate a voluntary income management agreement upon
the person's usual place of residence ceasing to be within a declared income
management area. The Secretary may terminate the agreement for other
reasons in this circumstance, such as it not being feasible for the Secretary to
meet the person's priority needs in the new location.
Item 32 provides for the application of the amendment made by item 31. The
amendment applies in relation to voluntary income management agreements
that are in force on or after the commencement of that item, whether the
agreements were entered into before, on or after that commencement. This
ensures that this flexibility is immediately available to all people currently
voluntarily income managed.
Exemption for acceptable absences from school
Item 28 repeals subparagraph 123UGD(1)(b)(i), and substitutes new
subparagraphs (i) and (ia). These new subparagraphs provide an element of
when a person is an exempt welfare payment recipient related to their
dependent child's school attendance. Each new subparagraph is an
alternative to the other. Each of the alternatives must be established to the
satisfaction of the Secretary in order to apply.
10
Substituted subparagraph (i) provides that the criterion is met if, at the test
time, the child is enrolled at a school and, in each of the two school terms
ending immediately before that time, the child has had no more than five
absences for reasons that are not satisfactory to a person responsible for the
operation of the school. Alternatively, new subparagraph (ii) provides that the
criterion is met if, at the test time, the child has had more than five
unsatisfactory absences, but the person is taking reasonable steps to ensure
that the child attends school as required by the law of the State or Territory
concerned. This allows some leeway for a parent still potentially to be an
exempt welfare payment recipient if, for example, they have an older teenage
child who is not reliably attending school, but are taking all reasonable steps
to address the non-attendance.
Items 29 and 30 insert a definition of person responsible for the purposes of
new subparagraphs 123UGD(1)(b)(i) and (ii). The person responsible for the
operation of a school has the same meaning as in Part 3C - School
requirements. Item 29 generalises the heading to subsection 123UGD(7),
which will now contain two definitions for the purposes of the section.
11
Schedule 2 - School attendance plans
Summary
This Schedule amends the provisions in the social security law that underpin
the Government's Improving School Enrolment and Attendance through
Welfare Reform Measure (known as SEAM). It enables some local tailoring of
this measure so the operation of SEAM can be integrated with the Northern
Territory Government's Every Child, Every Day initiative, to support greater
improvement of school attendance. Under the amended arrangements, a
parent may be required to attend a compulsory conference to discuss their
child's school attendance, to enter into a school attendance plan, and to
comply with the plan. Failure to meet the compliance arrangements provided
by this Schedule would lead to suspension of a parent's income support
payment, unless certain circumstances apply.
Background
This Schedule inserts new Division 3A into Part 3C of the Social Security
Administration Act, which relates to SEAM. Division 3 is retained under the
amendments made by this Schedule.
New Division 3A enables the Secretary or a person responsible for the
operation of a school to require a person to attend a conference to discuss the
school attendance of their child, to enter into a school attendance plan at the
conference, and to comply with the plan.
New Division 3A makes provision for the Secretary or a person responsible
for the operation of a school to give compliance notices where a person fails
to attend a conference, fails to enter a plan, or fails to comply with a plan.
The compliance notice would require the person to attend a conference, enter
a plan, or comply with a plan, depending on what failure led to the giving of
the notice.
New Division 3A provides that, if there is a failure to comply with a compliance
notice, then payments will be suspended, subject to the following exceptions:
· suspension of payments could not occur if the Secretary were satisfied
that there were `special circumstances' to justify the failure to comply
with the compliance notice; and
· the Secretary may determine, having regard to all the circumstances,
that, if a person has been fined under a State or Territory law regarding
a failure of the person's child to attend school, payments may not be
suspended despite non-compliance with the compliance notice, even if
no special circumstances exist.
12
Explanation of the changes
Amendments to the Social Security Administration Act
Item 1 updates paragraph 37AA(1)(b) of the Social Security Administration
Act to include a reference to new subsection 124NE(1).
Items 2 updates note 2 to section 37AA of the Social Security Administration
Act to include a reference to new section 124NE.
Item 3 updates note 3 to section 37AA of the Social Security Administration
Act to include a reference to new section 124NF.
Item 4 updates the note to paragraph 85(1)(a) of the Social Security
Administration Act to include a reference to new section 124NG.
Item 5 amends paragraph 123(1)(c) of the Social Security Administration Act
to include a reference to new section 124NF.
Item 6 repeals and substitutes subsection 124(2) of the Social Security
Administration Act. The new subsection provides that, if Part 3C ceases to
apply to a person while the person's schooling requirement payment is
suspended under Part 3C, then, despite that cessation, section 124J, 124N
or 124NG, as the case requires, is taken to apply in relation to the person
and, for this purpose, the reconsideration day for the purposes of that section
is taken to be the day of that cessation.
The new subsection is simpler than the repealed subsection. It takes account
of the new section 124NG and avoids the possibility of a person's payment
remaining suspended indefinitely, even though Part 3C no longer applies to
them. In this circumstance, a person's entitlement to arrears would be
determined in accordance with section 124J, 124N or 124NG, as the case
required.
A note to the new subsection states that sections 124J, 124N and 124NJ deal
with when payments become payable after suspension.
Item 7 amends section 124A of the Social Security Administration Act by
including a reference to (1) before `In'. This reflects the addition of new
subsection 124A(2) by this Schedule.
Item 8 amends the definition of person responsible for the operation of a
school in section 124A by adding a new paragraph (aa), which refers to a
person included in a class of persons specified in an instrument under new
subsection 124A(2).
13
Item 9 adds new subsection 124A(2), which provides that the Minister may,
by legislative instrument, specify a class of persons for the purposes of
paragraph (aa) of the definition of person responsible for the operation of a
school. It is likely that a truancy officer at a school would be among the class
of persons specified for the purpose of paragraph (aa) of the definition. This
is to ensure that, if desired, persons in classes specified in the instrument can
themselves provide notices for the purpose of new Division 3A of Part 3C of
the Social Security Administration Act so that there is no need to involve other
people responsible for the operation of a school in the giving of notices.
Item 10 repeals the heading to Division 3 of Part 3C, which referred to `school
attendance', and substitutes a new heading, `Division 3 - School attendance
notices'. This takes account of new Division 3A of Part 3C, which also relates
to school attendance.
Item 11 inserts new Division 3A into Part 3C of the Social Security
Administration Act. New Division 3A will contain the substantive provisions
relating to school attendance plans.
New section 124NA sets out when new Division 3A will apply to a person.
The first criterion is that a schooling requirement person's child is enrolled at a
school in a State or Territory. The meaning of schooling requirement
person and child is set out in section 124. The second criterion is that a
person responsible for the operation of the school gives the Secretary written
notice that the child is failing to attend school, as required by the law of that
State or Territory, to the satisfaction of the person responsible. The meaning
of person responsible for the operation of a school is as set out in
section 124A, as amended by this Schedule.
Conference notices
New section 124NB provides that the Secretary or the person responsible for
the operation of the school (the notifier) may give a `conference notice' to a
schooling requirement person which specifies the following:
· the person is required to attend a conference with a specified person at
a specified place and time;
· the purpose of the conference is to discuss the child's school
attendance;
· the person is required, at the conference, to enter into a school
attendance plan in accordance with new section 124NC;
· the consequences under new Division 3A of not complying with the
notice.
14
The conference notice would be required to specify all of the above matters.
If, after the notice was given, the schooling requirement person indicated to
the notifier that they would have difficulty in attending the conference, the
notifier might agree to give a new notice with a revised place or time. In
practice, a notifier might discuss with the person a suitable place and time for
the conference before giving the initial conference notice.
School attendance plans
New section 124NC deals with school attendance plans.
Subsection 124NC(1) provides that the notifier, that is, the Secretary or the
person responsible for the operation of the school, may require a schooling
requirement person to enter into a school attendance plan if such a plan is not
in force in relation to them. It is envisaged that, in practice, a person would
not be required to enter a school attendance plan unless they had also been
required to attend a conference under section 124NB. Similarly, in practice, a
person would be unlikely to be required to attend such a conference without
also being required to enter a school attendance plan. However, the notifier
would retain a discretion under subsection 124NC(1) in this regard.
Subsection 124NC(2) provides that the notifier may require a schooling
requirement person to enter into another plan instead of an existing plan.
Subsection 124NC(3) provides that the notifier is to give the schooling
requirement person notice of the requirement to enter a plan, the place and
time at which the plan is to be entered into, and the consequences of not
complying with the requirement.
Subsection 124NC(4) provides that the notice of requirement to enter a school
attendance plan may be included in a notice under new section 124NB or
124ND, without limitation to subsection 124NC(3).
Subsection 124NC(5) provides that a school attendance plan must be in a
form approved by the notifier.
Subsection 124NC(6) provides that a school attendance plan must cover one
or more child or children of the schooling requirement person.
Subsection 124NC(7) provides that a school attendance plan must contain
requirements, which the schooling requirement person is required to comply
with, that the notifier considers appropriate for the purpose of ensuring
improved school attendance of the one or more children covered by the plan.
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Compliance notices
New section 124ND deals with compliance notices. Subsection 124ND(1)
provides that the notifier, that is, the Secretary or the person responsible for
the operation of the school, may give a `compliance notice' to a schooling
requirement person, requiring the person to comply with one or more
requirements specified in the notice. Subsection 124ND(1) provides that the
notifier may issue a compliance notice if the person commits any of the
following failures:
· if a conference notice is given to the person under new
subsection 124NB(1) - the person fails to attend the conference at the
place and time specified in the conference notice under
paragraph 124NB(1)(a);
· the person fails to enter into a school attendance plan in accordance
with new section 124NC;
· the person fails to comply with a school attendance plan in force in
relation to them.
Subsection 124ND(2) provides that the compliance notice must give details
of:
· how to comply with the notice; and
· the consequences of not complying with the notice.
Subsection 124ND(3) provides that a requirement specified in the compliance
notice must be one that the notifier considers appropriate for the purpose of
ensuring improved school attendance of the schooling requirement person's
child. This would include, for example, requirements to attend a conference,
enter a school attendance plan, or comply with a school attendance plan.
Condition of schooling requirement payments
New subsection 124NE(1) provides that a schooling requirement payment is
not payable to a schooling requirement person if the person fails to comply
with a compliance notice given to the person under new section 124ND. New
subsection 124NE(2) provides that subsection 124NE(1) does not apply to the
person in relation to a compliance notice, as at a particular day, if the
Secretary is satisfied that there are special circumstances as at that day that
justify the failure to comply with the compliance notice. Whether there are
special circumstances that justify the failure to comply is to be determined in
accordance with the schooling requirement determination (if any). Examples
of special circumstances may include significant sickness that would be likely
to prevent a parent from complying with the compliance notice, or natural
disaster.
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New subsection 124NE(3) provides that subsection 124NE(1) does not apply
to the person in relation to a compliance notice as at a particular day if, before
that day, the person had been fined under a State or Territory law in relation
to the failure of the person's child to attend school in that State or Territory,
and if the Secretary determines that subsection 124NE(1) should not apply to
the person as at that day, having regard to all the circumstances. The
circumstances which the Secretary might consider would include but not be
limited to the length of time since the fine was imposed, whether the fine had
been paid, and the history of school attendance by the person's child, the
parent's compliance with their attendance plan and their ongoing efforts to
ensure their child goes to school.
New subsection 124NE(4) provides that a schooling requirement payment
cannot be suspended, or cancelled, because of the application of
subsection 124NE(1) except as provided by new section 124NF (which
provides for suspension or cancellation for non-compliance with a compliance
notice).
New subsection 124NE(5) provides that, for a schooling requirement payment
under the Veterans' Entitlements Act, section 124NE applies in relation to the
payment except in relation to the grant of the payment.
New subsection 124NE(6) provides that a determination under
paragraph 124NE(3)(b) is not a legislative instrument. This provision is
included to assist readers, because the determination would not be a
legislative instrument under section 5 of the Legislative Instruments Act 2003
as it would not be legislative in character.
Suspension or cancellation for non-compliance with compliance notice
New section 124NF relates to suspension or cancellation of payments for
non compliance with a compliance notice.
Subsection 124NF(1) provides that section 124NF applies if, as at a particular
day:
· a schooling requirement person has been given a compliance notice;
and
· a schooling requirement payment is not payable to the person because
subsection 124NE(1) applies to the person as at that day.
A note to new section 124NE explains that a schooling requirement payment
is not payable to a person if they fail to comply with a compliance notice.
Subsection 124NF(2) provides that:
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· the Secretary must determine that the payment is to be suspended or
cancelled if the payment has been suspended under
subsection 124NF(2) for a total period of 13 weeks or more (which
need not be a continuous period) in relation to compliance with the
compliance notice; or
· in any other case - the Secretary must determine that the payment is
to be suspended.
Subsection 124NF(3) provides that the Secretary may make more than one
determination under subsection 124NF(2) in relation to compliance with a
particular compliance notice.
A note to subsection 124NF(2) explains that, following suspension of a
schooling requirement payment, the payment may become payable again
under new section 124NG. Subsection 124NG(3) allows for a further
suspension of the payment, even after the payment has become payable
again.
Subsection 124NF(4) provides that the Secretary may suspend a schooling
requirement person's schooling requirement payment under the section even
if the person has not started to receive the payment.
A note to subsection 124NF(4) explains that a compliance notice may be
given to a claimant for a schooling requirement payment. The claim may be
granted even if subsection 124NE(1) applies to the person. However, in that
event, the Secretary must suspend the payment under section124NF (before
it has started).
When payments become payable after suspension
New section 124NG relates to when a person's schooling requirement
payment becomes payable following suspension. Subsection 124NG(1)
provides that section 124NG applies if, on a particular day (the
reconsideration day):
· a person's schooling requirement payment has been, and remains,
suspended under new section 124NF, where the compliance notice
concerned required the person to enter into a school attendance plan;
and
· the Secretary has reconsidered the decision to suspend the payment
(whether on an application under section 129 or on his or her own
initiative); and
· as a result of the reconsideration, the Secretary is satisfied that, as at
the reconsideration day:
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- the person has entered a plan containing requirements that the
Secretary considers appropriate for the purpose of ensuring
improved school attendance of the child or children covered by
the plan; or
- special circumstances apply, as determined in accordance with
the schooling requirement determination (if any), that justify the
person being unable to enter such a plan.
Subsection 124NG(2) provides that section 124NG also applies if, on a
particular day (the reconsideration day):
· a person's schooling requirement payment has been, and remains,
suspended under new section 124NF, where the compliance notice
concerned required the person to comply with a school attendance plan
in force in relation to the person; and
· the Secretary has reconsidered the decision to suspend the payment
(whether on an application under section 129 or on his or her own
initiative); and
· as a result of the reconsideration, the Secretary is satisfied that, as at
the reconsideration day:
- the person is complying with the plan; or
- special circumstances apply, as determined in accordance with
the schooling requirement determination (if any), that justify the
person being unable to enter such a plan.
The effect of subsection 124NG(3) is that, if section 124NG applies, the
Secretary must determine:
· that the schooling requirement payment is payable to the schooling
requirement person (subject to any other provision of the social security
law or the Veterans' Entitlements Act, as the case requires); and
· that any arrears resulting from the operation of the section are to be
paid at a time, or times, stated in the determination (or worked out in
accordance with that determination).
Subsection 124NG(4) provides that, if a person's payment has been
suspended under new section 124NF for a total period of less than 13 weeks
(which need not be a continuous period) in relation to compliance with a
particular compliance notice, the date of effect of the determination under
subsection 124NG(3) is the day on which the latest suspension determination
was made under new section 124NF.
A note to subsection 124NG(4) explains that a schooling requirement
payment may be suspended more than once under new section 124NF.
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Subsection 124NG(5) provides that, if subsection 124NG(4) does not apply,
the date of effect of the determination under subsection 124NG(3) is:
· the reconsideration day; or
· an earlier day stated by the Secretary in that determination to be
appropriate, in the special circumstances of the case applying as at the
reconsideration day, as determined in accordance with the schooling
requirement determination, if any.
Subsection 124NG(6) provides that, for the purposes of subsection 124NG(5),
the Secretary may vary a determination under subsection 124NG(3) to state
an earlier date of effect, if the determination:
· does not include such a statement; or
· includes such a statement in relation to a later day.
Subsection 124NG(7) provides that arrears resulting from the operation of this
section may be paid to the person as a lump sum payment, a series of regular
payments, or otherwise, in accordance with the determination under
subsection 124NG(3).
Subsection 124NG(8) provides that the person is entitled to a payment, or
payments, of arrears arising from the operation of section 124NG at the time,
or times, provided by the determination under subsection 124NG(3).
Subsection 124NG(9) provides that Division 9 of Part 3 of the Social Security
Administration Act (date of effect of determinations) does not apply in relation
to a determination under subsection 124NG(3).
Item 12 repeals and substitutes subsection 124NP(2). The revised
subsection provides that, despite any law in force in a State Territory:
· a State or Territory; or
· a non-government school authority; or
· any other person who is responsible for the operation of one or more
schools;
may, for the purposes of Part 3C, give the Secretary information about:
· the attendance, or non-attendance, of children at school; and/or
· a person's compliance with a compliance notice given to the person.
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Information about a person's compliance with a compliance notice given to
the person would include, but not be limited to, information about the content
of an attendance plan in force in relation to the person, and information about
the reasons for non compliance.
This amendment is to ensure that information can be given to the Secretary
about, not only an attendance notice under Division 3 of Part 3C, but also
about compliance with a compliance notice given under new Division 3A of
Part 3C.
Item 13 inserts new Division 5 into Part 3C, which will contain general
provisions. New section 124PA provides that no Division of Part 3C limits any
other Division of Part 3C.
Item 14 inserts new paragraph 195(2)(l) into the Social Security
Administration Act to provide a new category of information that the Secretary
may require a person to give for a purpose specified in subsection 195(1)
(which relates to verification of claims). The new category includes, in relation
to a person in respect of whom a compliance notice is in force, any
information relevant to the person's compliance with a compliance notice.
Item 15 inserts new paragraph 202(7)(e) into the Social Security
Administration Act, the effect of which is that, if protected information relates
to a person's compliance with a compliance notice given to the person, a
person may do any of the things set out in subsection 202(6).
Item 16 amends subclause 1(1) of Schedule 1 to the Social Security
Administration Act by inserting a new definition of compliance notice. This
provides that compliance notice has the meaning given by new
section 124ND.
Item 17 updates subparagraph 5(2)(f) of Schedule 2 to the Social Security
Administration Act to include a reference to new section 124NF.
Item 18 provides that new paragraph 124NA(b) of the Social Security
Administration Act applies in relation to notices given on or after the day on
which the item commences. Item 18 also provides that new Division 3A of
Part 3C of the Social Security Administration Act, as inserted by this
Schedule, applies in relation to a schooling requirement payment, whether it is
claimed or granted, before, on or after the day on which this item commences.
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