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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SERVICES LEGISLATION AMENDMENT
(PORTABILITY EXTENSIONS) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families and Social Services and Minister for Women's Safety,
Senator the Hon Anne Ruston)
SOCIAL SERVICES LEGISLATION AMENDMENT
(PORTABILITY EXTENSIONS) BILL 2021
OUTLINE
This Bill amends the social security law to include a permanent discretion to provide
portability extensions for pensioners who are temporarily away from their country of
residence and unable to return home within 26 weeks for reasons such as serious
illness, death of a family member, natural disaster or public health crisis.
Financial impact statement
MEASURE INDICATIVE FINANCIAL IMPACT OVER THE
FORWARD ESTIMATES
Schedule 1 - Amendments Cost of approximately $5.0 million
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
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Schedule 1 - Amendments
SOCIAL SERVICES LEGISLATION AMENDMENT
(PORTABILITY EXTENSIONS) BILL 2021
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.
Clause 1 sets out how the new Act is to be cited - that is, as the Social Services
Legislation Amendment (Portability Extensions) Act 2021.
Clause 2 provides a table setting 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repealed as set out in that Schedule, and any other item in a Schedule to the Bill has
effect according to its terms.
Schedule 1 - Amendments
Summary
This Bill amends the social security law to include a permanent discretion to provide
portability extensions for pensioners who are temporarily away from their country of
residence and unable to return home within 26 weeks for reasons such as serious
illness, death of a family member, natural disaster or public health crisis.
Background
The amendments effected by this Bill provide for portability extensions for pensions
in line with the allowable reasons for working age and family payments, such as
serious accident or illness, legal proceedings or a natural disaster, as well as for
public health crises.
From 1 April 2021, changes made to the Social Security Act allowed Age Pension
and certain Disability Support Pension recipients who are temporarily overseas to
apply for a portability extension if they are unable to return to Australia within 26
weeks of their departure because of COVID-19.
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Schedule 1 - Amendments
Normally, after 26 weeks overseas, a pension recipient entitled to indefinite
portability will have their rate of pension based on their Australian Working Life
Residence. Generally, 35 years Australian Working Life Residence is required to
maintain the full basic rate of pension. The extension ensures affected pensioners
do not have their rate reduced after 26 weeks overseas. Supplements, such as Rent
Assistance, also cease after 26 weeks. An extension will also allow the supplements
to continue to be paid after this time.
The changes from 1 April 2021 also allowed pensioners who were 'grandfathered'
under portability changes in 2000 and 2014 (and remained covered by the previous
portability rules) to apply for a portability extension if they ordinarily live overseas but
are temporarily in Australia and unable to return home due to COVID-19. The
extension ensures they maintain their pre-existing portability entitlements. These
more generous entitlements are normally lost after 26 weeks in Australia, which may
result in the pensioner receiving less pension when they are able to return home
than they did under the more generous entitlements.
The changes from 1 April 2021 replicated arrangements previously put in place from
10 June 2020 until 31 December 2020 under the Social Security (Coronavirus
Economic Response - 2020 Measures No. 10) Determination 2020 and extended to
31 March 2021 under the Social Security (Coronavirus Economic Response - 2020
Measures No. 16) Determination 2020. These changes cease after 30 June 2021.
The amendments made by this Schedule commence on 1 July 2021, immediately
following the expiry of the existing portability extensions for travel limitations directly
related to COVID-19.
Explanation of the changes
Amendments of the Social Security Act
Item 1 repeals and substitutes subsections 1216(2) and (3). These subsections
currently provide for additional amounts to be added to rate for an additional period
ending no later than 30 June 2021 where the person is unable to return to Australia
before the end of 26 weeks absence because of the impact of the Coronavirus
known as COVID-19.
Substituted 1216(2) allows the base 26 weeks to be extended where the Secretary is
satisfied the person's absence from Australia is temporary, and the person is unable
to return to Australia because of an event referred to in subsection 1216(3). New
subsection 1216(3) identifies events of the same nature as those currently applying
to allow extension of portability for other social security payments under section
1218C of the Act. These include a serious accident or hospitalisation involving the
person or a family member of the person, a serious illness of the person or family
member, the death of a family member, the person's involvement in custody
proceedings in the country in which the person is located, a legal requirement for the
person to remain outside Australia in connection with criminal proceedings (other
than that alleged to have been committed by the person), robbery or a serious crime
committed against the person or a family member, a natural disaster in the country in
which the person is located, political or social unrest, industrial action or war in the
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Schedule 1 - Amendments
country in which the person is located. Family member is defined in subsection
23(14) of the Act as a partner, parent, sister, brother or child or any other person the
Secretary determines to be a family member for the purpose of the Act.
Additionally, a public health crisis affecting Australia or the country in which the
person is located, or both, is included to cover events such as the current pandemic.
This will allow continuing consideration to be given to persons previously granted
portability extensions under now repealed subsections 1216(2) and (3), and allow
further extensions if appropriate under the various application provisions from item
12 below.
Additionally, new subsection 1216(4) inserted by this item creates a limitation on
determinations under new subsection 1216(2), requiring that the event occurred or
began during the period of absence, and if the event is political or social unrest,
industrial action or war, the person is not willingly involved in, or willingly participating
in the event. This reflects the purpose of the extensions, which is to assist
pensioners affected by unexpected circumstances beyond their control while
travelling.
New subsection 1216(5) is a technical amendment, providing that if the Secretary
determines another number of weeks under subsection 1216(2) then, immediately
after that determination is made, a reference to a number of weeks in paragraph
1216(1)(a) and each reference to a number of weeks in subsection 1216(2) is taken
to be a reference to that new number.
This makes clear the operation of the provision if the Secretary (or delegate)
determines a number of extensions to a person's portability period over time, as
circumstances change. If the initial extension ultimately proves to be too short, a
later extension may occur, and the later extension is taken to extend the period as
originally extended, rather than the original 26 week period.
For example, if the Secretary initially determines that an initial 26 week period
ending 31 July 2021 is to be extended to be treated as a 30 week extension
ending on 28 August 2021, section 1216 is taken for all purposes to be
referring to a period of 30 weeks. If, near to 28 August, it is apparent that a
further extension is required, the extension is regarded as an extension of the
substituted 30 week period, and so on.
Items 2, 3, 4 and 5 amend sections 1220A and 1220B, which relate to the rate of
portable pensions when paid overseas. Section 1220A relates to the rate of age
pension, and section 1220B relates to the rate of disability support pension for a
severely disabled person. In general, the rate of pension is based upon the person's
period of Australian Working Life Residence when the person is overseas for a
continuous period of more than 26 weeks. This may result in the person receiving a
proportional rate of pension. Consistent with additional amounts added to the rate
under section 1216, these items allow for the 26 week period to be extended in the
same range of circumstances, to allow the full rate of pension to be paid for longer.
The provisions insert new subsections 1220A(1A), (1B) and (1C), and subsections
1220B(1A), (1B) and (1C) to identical effect to the amendments made to section
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Schedule 1 - Amendments
1216 above. An extension of the 26 week period (which may have been previously
extended) will be available to pensioners unable return due to the effect of the
specified events, including a public health crisis affecting Australia or the country in
which the person is located or both.
This extension is only available where the Secretary is satisfied that the event
occurred or began during the period of absence, and if the event is political or social
unrest, industrial action or war, the person is not willingly involved in, or willingly
participating in the event.
These items repeal subsections 1220A(6) and (7), and subsections 1210B(3) and
(4), relating to the power to extend the 26 weeks for a period ending up to 30 June
2021 where the person's absence is temporary, and the person is unable to return to
Australia because of the impact of COVID-19. The new, unlimited extension power
will allow extensions granted under this provision to be continued, in appropriate
circumstances, and that successive extension decisions can operate correctly.
Items 6, 7 and 8 deal with savings provisions introduced as part of the Social
Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters)
Act 2000 which, amongst other things, amended the portability rules for pensioners
to reduce the allowable period of absence before a proportional rate of pension may
apply for persons overseas. For persons already overseas when these rules were
introduced, the new rules do not apply to a person as the result of the savings
provisions in clause 128 of Schedule 1A to the Act unless that person returns to
Australia for a continuous period of more than 26 weeks. An extension of this period,
not ending after 30 June 2021, was similarly allowed for persons who were unable to
leave Australia due to the effect of COVID-19. This element is repealed by item 8.
Item 7 now inserts new subclauses 128 (1A), (1B) and (1C) to the same effect as the
subclauses inserted in earlier items, allowing extensions in the same circumstances
including a public health crisis, and providing for an extension determination to be
made on the same conditions that the event occurred or began during the period of
return. Limitations as to when the event occurred or began relative to the period of
absence also limit the Secretary's power to make such extension determinations.
Technical amendments will allow successive extension decisions to operate
correctly.
Amendments of the Social Security Administration Act
Item 9 amends Subdivision B of Division 9 of Part 3 to the Administration Act to
insert new section 114A. This new section varies the date of effect provisions for
social security relating to a favourable determination made as the result of the new
extension provisions inserted by items above, in order to allow such determination to
take effect on a day earlier than otherwise permitted by that Subdivision. Where this
Act passes and commences on 1 July 2021, various extensions of periods will need
to be considered and if appropriate, determined, and it may not be possible for this
work to be completed on 1 July 2021. Accordingly, new section 114A will allow such
determination to have retrospective effect, to allow pensioner's rates to be
continuously maintained from 30 June 2021 without interruption.
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Schedule 1 - Amendments
Amendments of the Social Services and Other Legislation Amendment Act
2014
The Social Services and Other Legislation Amendment Act 2014 increased the
period of Australian Working Life Residence, which a pensioner must have in order
to receive a full rate of pension after 26 weeks outside Australia. Again, this change
was not applied to pensioners already outside Australia, unless they subsequently
returned to Australia for a period exceeding 26 weeks. Currently, extensions to this
26 week period are permissible under Division 4 of Part 4.2 of the Social Security
Act, for periods ending no later than 30 June 2021, for reasons related to the effects
of COVID-19. Division 4 of Part 4.2 of the Social Security Act is repealed by item 6
of this Bill.
Instead, for ease of reference, the Bill at item 10 amends item 6 of Schedule 4 to the
Social Services and Other Legislation Amendment Act 2014, and at item 11,
amends item 14 of Schedule 4 to that Act to insert new subitems to the same effect
as the subclauses inserted in earlier items, allowing extensions in the same
circumstances including a public health crisis, and providing for the extension
determination to be made on the same conditions that the event occurred or began
during the period of return. Limitations as to when the event occurred or began
relative to the period of absence also limit the Secretary's power to make such
extension determinations. Technical amendments will allow successive extension
decisions to operate correctly.
These provisions apply to periods of return starting on or after the commencement of
those subitems, and a period of return starting before that commencement where the
person is in Australia immediately prior to that commencement and the 26 weeks
has not expired, or where the Secretary has, under the provisions in force prior to 1
July 2021, determined a longer period, such that the period ended at the end of 30
June 2021.
Application provisions
Items 12 to 15 are application provisions. The amendments of sections 1216,
1220A, 1220B and clause 128 of Schedule 1A made by this Schedule apply to the
following:-
a period of absence from Australia or return to Australia, as the case may be,
starting on or after the commencement of the item;
a period of absence from Australia or return to Australia, as the case may be,
starting before that commencement, where the person is absent from
Australia or in Australia immediately before that commencement and where:
(i) the 26 weeks mentioned had not ended immediately before that
commencement; or
(ii) the Secretary had determined another number of weeks with the
result that the period referred to ended at the end of 30 June 2021.
If the Secretary has made a prior determination of a period of absence or return
under now repealed provisions, then at the commencement of each such subitem,
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Schedule 1 - Amendments
the amendments made by this Schedule apply as though the reference to 26 weeks
in each of the provisions is taken to be a reference to that other number of weeks.
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Statement of compatibility with human rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
SOCIAL SERVICES LEGISLATION AMENDMENT
(PORTABILITY EXTENSIONS) BILL 2021
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
This Bill amends the social security law to include a permanent discretion to provide
portability extensions for pensioners who are temporarily away from their country of
residence and unable to return home within 26 weeks for reasons such as serious
illness, death of a family member, natural disaster or a public health crisis.
Human rights implications
The Bill engages the right of everyone to social security in Article 9, and the right of
everyone to an adequate standard of living for an individual and their family,
including adequate food, clothing and housing, and the continuous improvement in
living conditions in Article 11 of the International Covenant on Economic, Social and
Cultural Rights.
Access to portability arrangements for age pensioners (and certain recipients of the
disability support pension) promotes human rights because the extension prevents
pension entitlements being affected for extended absences from Australia or the
recipient's home country for unexpected reasons beyond the pensioner's control.
Conclusion
This Bill is compatible with human rights because it promotes the protection of
human rights for pensioners.
[Circulated by the authority of the Minister for Families and Social Services
and Minister for Women's Safety, Senator the Hon Anne Ruston]
8