Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND
VETERANS' AFFAIRS LEGISLATION AMENDMENT
(2006 BUDGET MEASURES) BILL 2006
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families, Community Services and Indigenous Affairs,
the Hon Mal Brough MP)
FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND
VETERANS' AFFAIRS LEGISLATION AMENDMENT
(2006 BUDGET MEASURES) BILL 2006
OUTLINE
This bill gives effect to a number of measures announced as part of the
2006-07 Budget, including changes to the social security means test,
amendments to crisis payment and introduces new search and seizure
powers for officers under the social security and family assistance laws, and
makes other amendments as outlined below.
Inclusion of land adjacent to a dwelling-house in a principal home
This measure is intended to assist age pensioners, carer payment recipients
of age pension age and qualifying service pensioners, living on farms and
rural residential blocks of more than 2 hectares, who are excluded or receive
a reduced pension because of the assessable asset value of land adjacent to
their home. This measure will, in certain circumstances, increase the
maximum amount of land that is exempt from the assets test from two
hectares to encompass all the land on the same title as the person's principal
home.
Financial impact (total resourcing)
2006-07 $42.1m
2007-08 $41.7m
2008-09 $43.9m
2009-10 $45.3m
Search and seizure
This measure is intended to provide search, entry and seizure powers for
authorised officers under the family assistance law, social security law and the
Student Assistance Act 1973. This will allow these officers to effectively
investigate and prosecute offences in regard to programs administered under
those provisions.
Financial impact (total resourcing)
2006-07 -$0.3m
2007-08 -$2.3m
2008-09 -$2.7m
2009-10 -$3.0m
Crisis payment
This measure establishes a further ground upon which to qualify for crisis
payment. From 1 January 2007, persons who have been subject to domestic
or family violence and who are receiving a social security income support
payment may be paid a one-off crisis payment without having to establish a
new home. The payment will help fund the cost of securing the person's
home and other related expenses.
Financial impact (total resourcing)
2006-07 $ 1.1m
2007-08 $ 0.5m
2008-09 $ 0.6m
2009-10 $ 0.6m
Miscellaneous
These measures make various amendments to the Aged Care Act 1997, Child
Support (Assessment) Act 1989, the Child Support (Registration and
Collection) Act 1988 and the social security law to allow for the exchange of
information between agencies for compliance purposes.
Financial impact (total resourcing)
2006-07 -$9.2m
2007-08 -$19.1m
2008-09 -$39.6m
2009-10 -$63.9m
FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND
VETERANS' AFFAIRS LEGISLATION AMENDMENT
(2006 BUDGET MEASURES) BILL 2006
NOTES ON CLAUSES
Clause 1 sets out how the Act is to be cited, that is, the Families, Community
Services and Indigenous Affairs and Veterans' Affairs Legislation Amendment
(2006 Budget Measures) Act 2006.
Clause 2 provides a table that sets out the commencement dates of the
various sections in, and Schedules to, the Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
This Explanatory Memorandum uses the following abbreviations:
· `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; and
· `Family Assistance Administration Act' means the A New Tax System
(Family Assistance) (Administration) Act 1999.
1
Schedule 1 - Inclusion of land adjacent to a dwelling-house in a
principal home
Summary
This measure is intended to assist age pensioners, carer payment recipients
of age pension age and qualifying service pensioners, living on farms and
rural residential blocks of more than two hectares, who are excluded or
receive a reduced pension because of the assessable asset value of land
adjacent to their home. This measure will, in certain circumstances, increase
the maximum amount of land that is exempt from the assets test from two
hectares to encompass all the land on the same title as the person's principal
home.
Background
Currently, only a person's principal home and adjacent land of up to two
hectares is exempt from the assets test even though the land in excess of two
hectares may be held on the same title document. This can affect people
living on farms and in rural residential areas, who may be forced to sell and
move from their long-term family home to support themselves financially
because they have substantial assets in the form of excess land assessed as
an asset for social security purposes that they cannot realise without selling
their home.
Over recent years, community concern has been growing about the inequity
between city and rural areas in the treatment of a pensioner's principal home.
In particular, the Government does not believe that older Australians on farms
and rural residential areas should be forced to move from their principal home,
where they have lived for a long period of time, to gain an adequate
retirement income.
The amendments in this Schedule will mean that people of age pension age in
receipt of age pension or carer payment, and qualifying service pensioners
may have all the land on the same title document as the principal home
exempted from the assets test, if they have a long-term (20 year) attachment
to the land. In addition, for a person to gain access to the concessional
assets test treatment, they must show that land with commercial potential is
being used productively to generate an income. This measure also provides
for people in rural residential areas, with limited capacity to generate an
income from their home block, to gain access to the concessional assets test
treatment.
The requirement that people seeking access to the concessional asset test
treatment must demonstrate that the land over two hectares (on the same title
as the home property) with commercial potential is put to use to generate an
income ensures that productive farm land does not lie fallow and supports the
inter-generational transfer of land.
2
Explanation of the changes
Social security law
Items 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 17 and 18 amend various
provisions in the Social Security Act consequential upon the introduction of
new section 11A and the associated renumbering of provisions in section 11.
Item 6 inserts new section 11A, which incorporates current rules about what
is regarded as the principal home of a person, and introduces new rules to
extend the amount of land adjacent to a dwelling-house that can be
considered to be part of the person's principal home.
New paragraph 11A(1)(a) provides that a person's principal home includes
land held under the same title document (defined in new subsection 11A(11))
as the person's dwelling-house and for which either the private land use test
(see new subsection 11A(3)) or the extended land use test (see new
subsections 11A(4) to (7) is satisfied. New paragraph 11A(1)(b) mirrors the
rule in current paragraph 11(5)(b) for the treatment of flats and home units.
New subsection 11A(2) provides special rules for enabling land to be treated
as held on the same title document as other land. This can occur where:
· a person's dwelling house is located on both blocks of land;
· all or part of the blocks of land are protected by a law because of the
land's natural, historic or indigenous heritage; or
· alienation of one of the blocks would seriously undermine the function
of the house as a dwelling. The note to this provision (which, because
of subsection 39(1A), is taken to be part of the subsection) provides
that a mere loss of amenity, such as the loss of a swimming pool,
garden, tennis court or view, would not seriously undermine the
function of a house as a dwelling.
New subsection 11A(3) provides for the private land use test, which is based
on the terms of current subsection 11(6). The test is satisfied if the land,
together with the ground floor of the dwelling-house, is not more than two
hectares and is used primarily for private or domestic purposes in association
with the dwelling-house.
New subsection 11A(4) provides that the extended land use test applies to a
person who has reached age pension age where the person is qualified for
age pension or carer payment and that payment is payable to the person, and
their dwelling-house has been their principal home for 20 years or more
continuously. The rules in new subsections 11A(8) and (9) (which mirror the
rules in current subsection 11(6A) and (7)) provide that a residence can be
regarded as a person's principal home in certain specified circumstances,
such as temporary absences not exceeding 12 months.
3
New subsection 11A(5) provides rules for the application of the extended land
use test for members of a couple. Where the extended land use test applies
to one member of a couple, it also applies to their partner (ie even if the
extended land use test would not otherwise apply to them). This enables the
assets of the couple to be taken into account in the same way. If the
relationship ends (such as through separation or death), the extended land
use test continues to apply to the partner, provided that the dwelling-house
house continues to be his or her principal home.
This provision will allow a person to continue to benefit from the application of
the extended land use test, once that test has applied to them, provided they
remain on the property. The provision can apply on a recursive basis. For
example, if the extended land use test applies to person A (because he or she
satisfies subsection 11A(4)), it will also apply to their spouse, person B
(because of paragraph 11A(5)(a)). If the relationship between persons A and
B ends, the extended land use test will continue to apply to person B,
provided that he or she continues to live on the property. If person B
re-partners with person C, the extended land use test will apply to person C
(even if the extended land use test would not have applied to person C in his
or her own right under subsection 11A(4)). If that relationship ends, but
person C re-partners, the extended last use test can apply to their partner
person D (and so on ...).
New subsection 11A(6) provides that the extended land use test is satisfied if
the area of the land, together with the area of the ground floor of the
dwelling-house, is more than two hectares and the Secretary (or a delegate)
determines that a person is making effective use of the land.
New subsection 11A(7) provides that, in determining whether a person is
making effective use of the land (as required under paragraph 11A(6)(b)), the
Secretary must take account of the matters specified in the provision,
including any other matter that the Secretary considers relevant
(paragraph 11A(7)(l)).
Examples:
1. A 65 year old farmer has been living on his 200 hectare farm (on one title)
for 20 years. The farmer decides to lease all his viable farming land to a
neighbour for an income. As a result of this bill, the farmer can have the value
of the 200 hectares of land exempted from the assets test when assessing
their entitlement to age pension, as it would be considered that he or she was
making effective use of the land. The income received from leasing would be
assessed under the income test.
4
2. A 70 year old retiree has been living on his 10 hectare rural residential
block (on one title) for more than 20 years. The land is scrubland and is not
commercially viable. As a result of this bill, the retiree can have the value of
the 10 hectares of land exempted from the assets test when assessing his or
her entitlement to age pension, as it would be considered that he or she
meets the 'effective use of land' test given the land has no potential to
generate income.
3. A 67-year-old farmer has been living on his 150-hectare farm (on one title)
for more than 20 years. The farmer and his son jointly run the farming
business through a private company structure. The farmland and the home
the farmer lives in are owned by the private company. Control of the private
company and income earned by the business are shared between the farmer
and his son. As the farmland is being worked to its potential by the farming
business, the effective use of land test would be satisfied. As the 67-year-old
farmer's home is held in a business structure that he controls, the value of the
150 hectares of farmland would be exempted from the assets test when
assessing his entitlement to age pension. The farmer's share of the income
earned by the farming business would be assessed under the income test.
The farmer's share of the other business assets, such as plant and
equipment, would continue to be assessed under the assets test in the usual
way.
New subsections 11A(8), (9) and (10) mirror the rules in current
subsections 11(6A), (7) and (8).
New subsection 11A(11) defines the term title document, in relation to land,
as meaning either:
· in relation to land registered under the Torrens system (that is, the vast
majority of privately-owned land in Australia) - the certificate of title for
the land; or
· in any other case (that is, old title land) - the last instrument by which
title to the land was conveyed.
Items 7, 15 and 16 make amendments to certain provisions relating to the
Retirement Assistance for Farmers Scheme (Part 3.14A of the Social Security
Act) and the Retirement Assistance for Sugarcane Farmers Scheme
(Part 3.14B of the Social Security Act)) consequential upon changes made by
this schedule.
5
Item 19 inserts grandfathering arrangements for persons receiving a social
security payment immediately before 1 January 2007, whose rate of payment
would be adversely affected by the introduction of the one title rule in
subparagraph 11A(1)(a)(i). Subitem 19(1) provides that new section 11A
applies to a person as if subparagraph 11A(1)(a)(i) did not apply, in two
cases. The first case (subitem 19(2)) is where the person's payment would
cease to be payable, or would be payable at a lower rate, because of the
introduction of the one title rule subparagraph 11A(1)(a)(i) (and ignoring the
impact of the extended land use test). The second case (subitem 19(3)) is
where the person had been paid on the basis that certain land was not treated
as their principal home, because it was not held on the same title document
as the land on which their dwelling-house was located. In each case, the
grandfathering arrangement will apply to a person, provided that the person's
dwelling-house continues to be their principal home and the person does not
cease to receive a social security payment.
Item 20 provides transitional rules for the introduction of the effective land use
test. Subitem 20(1) provides that, where a person receiving a social security
payment immediately before 1 January 2007 notifies the Secretary during the
notification period (defined in subitem 20(6) as the period between 1 January
and 31 March 2007) of circumstances relevant to the effective land use test, a
rate increase determination based on a determination by the Secretary that
the person is making effective use of the land takes effect from
1 January 2007, or a later date specified in the determination.
Subitem 20(2) provides that, where a person claims a social security
payment during the notification period and notifies the Secretary of
circumstances relevant to the effective land use test, the effective land use
determination takes effect on 1 January 2007 (or a later day, if specified) and
the person's start day is the earlier of the day on which the effective land use
test takes effect and the day worked out under the current start day rules in
Schedule 2 to the Social Security Administration Act.
Subitem 20(3) inserts a special rule for a person who makes a claim for a
social security payment during the notification period but, on the day on which
the claim was made, either the person was not qualified for the payment or
the payment was not payable. If the person was qualified for a payment, and
the payment was payable, during the notification period, the extended land
use test applied to the person, and the person notifies the Secretary of
circumstances relevant to the effective land use test, then the Secretary may
grant the claim and, in effect, determine that the effective land use test was
satisfied.
Subitem 20(4) provides that a person receiving a social security payment can
be treated as if they had notified the Secretary of circumstances relevant to
the effective land use test within the notification period (enabling the rule in
subitem 20(1) to apply), if they notify the Secretary of such circumstances
between 1 April and 30 June 2007 and special circumstances apply.
6
Subitem 20(5) provides that a person can be treated as if they had made a
claim for payment and notified the Secretary of circumstances relevant to the
effective land use test within the notification period (enabling the rule in
subitem 20(2) to apply) if they make a claim between 1 April and
30 June 2007 and notify such circumstances, and special circumstances
apply.
Subitem 20(6) defines the term notification period to mean the period
commencing on 1 January 2007 and ending on 31 March 2007.
The amendments set out in Schedule 1 commence on 1 January 2007.
Veterans' Entitlements Act 1986
Item 21: repeals the listing of interest that gives reasonable security of
tenure from the index of definitions in section 5.
Item 22: repeals and substitutes the listing of principal interest with
reference to section 5LA in the index of definitions in section 5.
Item 23: inserts the listing of reasonable security of tenure with reference
to subsection 5LA(10) in the index of definitions in section 5.
Item 24: removes the reference to `section 5L' and substitutes a
reference to `sections 5L and 5LA' in the Note to
subsection 5E(4A).
Item 25: removes the reference to `subsections 5L(6A) and (7)' and
substitutes the reference to `subsections 5LA(8) and (9) in
Note 3 to paragraph 5H(8)(nc).
Item 26: repeals the definition of interest that gives reasonable security of
tenure from subsection 5L(1).
Item 27: removes the reference to `subsections (5) to (7)' and substitutes
a reference to section 5LA' in the definition of principal home in
subsection 5L(1).
Item 28: inserts a reference in subsection 5L(1) to the definition of the
term reasonable security of tenure being located in
subsection 5LA(10).
Item 29: repeals subsections 5L(5) to (8).
Item 30: inserts new section 5LA containing the principal home definition
for the purposes of the assets test.
7
Item 31: removes from subsection 5MA(2A), the phrase `the adjacent
private land' and substitutes the phrase `any adjacent area of
land used primarily for private or domestic purposes in
association with that dwelling-house'.
Item 32: removes from subsection 5MA(2B), the phrase `the adjacent
private land' and substitutes the phrase `any adjacent area of
land used primarily for private or domestic purposes in
association with that dwelling-house'.
Item 33: removes the reference to `subsections 5L(5) to (7)' and
substitutes a reference to `section 5LA' in the Note to the
definition of ineligible property owner in subsection 5N(1).
Item 34: removes the reference to `subsection 5L(6A) or (7)' and
substitutes a reference to `subsection 5LA(8) or (9)' in
subparagraph 5N(2)(a)(iii).
Item 35: removes the reference to `subsections 5L(5) to (7)' and
substitutes a reference to `section 5LA' in the Note to
subsection 5N(2).
Item 36: removes the reference to `subsection 5L(6A) or (7)' and
substitutes a reference to `subsections 5LA(8) or (9)' in the Note
to subsection 5N(3A).
Item 37: removes the reference to `subsection 5L(6A) or (7)' and
substitutes a reference to `subsections 5LA(8) or (9)' in the Note
to subsection 5N(3B).
Item 38: removes from subsection 49B(2), the phrase `the adjacent
private land' (wherever occurring) and substitutes the phrase
`any adjacent area of land used primarily for private or domestic
purposes in association with that dwelling-house'.
Item 39: removes from subsection 49R(5), the phrase `the adjacent
private land' (wherever occurring) and substitutes the phrase
`any adjacent area of land used primarily for private or domestic
purposes in association with that dwelling-house'.
Item 40: removes the reference to `section 5L' and substitutes a
reference to `sections 5L and 5LA' in the Note to
paragraph 52(1)(n).
Item 41: removes the reference to `section 5L' and substitutes a
reference to `sections 5L and 5LA' in paragraph 52ZZV(1)(a).
Item 42: removes the reference to `section 5L' and substitutes a
reference to `sections 5L and 5LA' in paragraph 52ZZZI(1)(a).
8
Item 43: removes the reference to `subsection 5L(6A) or (7)' and
substitutes a reference to `subsections 5LA(8) or (9)' in Note 2 to
subclause 17A(2) of Schedule 5. Clause 17A is applicable to
persons who became charge exempt residents under the Aged
Care Act 1997 prior to the commencement of the clause.
Item 44: inserts a transitional provision referred to as the `one title rule'
applicable in certain circumstances where a person is receiving
or has lodged a claim for a service pension or income support
supplement immediately before 1 January 2007.
Item 45: inserts a transitional provision referred to as the `effective use
test' applicable in certain circumstances where a person is
receiving a service pension or income support supplement
immediately before 1 January 2007 or make a claim for a
service pension or income support supplement during the
notification period.
Veterans' Entitlements Act - explanation of changes
Although the amendments to the Veterans' Entitlements Act made by this
legislation will mirror the amendments to the Social Security Act made by the
preceding Items in Schedule 1, there are a number of minor variations within
the legislation necessary to reflect differences in administrative arrangements
and legislative formats.
These variations are:
· the proposed Veterans' Entitlements Act legislation refers to the
Repatriation Commission as the decision-maker, instead of the Secretary
as in the proposed social security law;
· references to related provisions within each Act are different eg. the
definition provisions and the assets test provisions, which required
amendment, are at different section numbers within the respective Acts.
Set out below is a Comparative Table of the items referring to the
amendments made under Schedule 1. The explanation provided for an item
in the Social Security Act amendments made in Schedule 1 is to be read as
the explanation for the equivalent amendment to the Veterans' Entitlements
Act in a later Item of Schedule 1.
A number of the amendments to the Veterans' Entitlements Act have no
equivalent in the amendments to the Social Security Act in Schedule 1. The
amendments are minor and the explanation for those items are provided
previously in the outline of the changes above.
9
Comparative Table of Provisions
Schedule 1 Description Schedule 1
(VEA) Item (SSA) Item
Number Number
21 Section 5 - index of definitions - repeal the listing No equivalent
of "interest that gives reasonable security of
tenure".
22 Section 5 - index of definitions - repeal and No equivalent
substitute the listing of "principal interest"
23 Section 5 - index of definitions - insert the listing No equivalent
of "reasonable security of tenure"
24 Amendment to the Note to subsection 5E(4A). 1
25 Amendment to Note 3 to paragraph 5H(8)(nc). 2
26 Repeal the definition of "interest that gives No equivalent
reasonable security of tenure" from subsection
5L(1).
27 Amendment to definition of "principal home" in 3
subsection 5L(1).
28 Inserts a reference in subsection 5L(1) to the 4
definition of the term "reasonable security of
tenure"
29 Repeal subsections 5L(5) to (8). 5
30 Insert new section 5LA containing the definition 6
of "principal home"
31 Amendment to subsection 5MA(2A). 7
32 Amendment to subsection 5MA(2B). 7
33 Amendment to the Note to the definition of 8
"ineligible property owner" in subsection 5N(1).
34 Amendment to subparagraph 5N(2)(a)(iii). 9
35 Amendment to the Note to subsection 5N(2). 10
36 Amendment to the Note to subsection 5N(3A). 11
37 Amendment to the Note to subsection 5N(3B). 12
38 Amendment to subsection 49B(2). 15
39 Amendment to subsection 49R(5. 16
40 Amendment to the Note to paragraph 52(1)(n).) 13
41 Amendment to paragraph 52ZZV(1)(a). 17
42 Amendment to paragraph 52ZZZI(1)(a). 18
43 Amendment to Note 2 to subclause 17A(2) of No equivalent
Schedule 5.
44 Transitional arrangements - one title rule. 19
45 Transitional arrangements - effective use test. 20
The amendments contained in the amendments to the Veterans' Entitlements
Act in Schedule 1 commence on 1 January 2007.
10
Schedule 2 - Search and Seizure
Summary
This measure is intended to provide search and seizure powers for authorised
officers under the family assistance law, social security law and the Student
Assistance Act 1973. This will allow these officers to effectively investigate
and prosecute offences in regard to programs administered under those
provisions.
Background
Information gathering powers are limited to the authority to compel the
provision of information from a person where the delegate believes that
information will or may impact on the administration of the social security law
(section 192 of the Social Security Administration Act) and the authority to
compel the provision of information from a person about a class of people to
facilitate the detection of cases where social security payments have been
incorrectly paid and to verify the qualification of customers (section 195).
The section 192 and 195 provisions are exercised pursuant to section 196,
which requires that a written notice give the receiver 14 days to respond. The
section 195 power is limited in that only information as specified in the section
is able to be collected and the requirements of section 192 remain. The
relevant information gathering powers in the Family Assistance Administration
Act are in sections 154 to 158.
In the normal course of events, search warrants in relation to Centrelink
matters are executed by the Australian Federal Police under section 3E of the
Crimes Act 1914 (that is, as judicial warrants).
Over recent years, Centrelink's investigative capability has been developing
so as to be able to detect, investigate and prosecute more serious fraud
committed against the social security law. This includes a significant increase
in focus on addressing the cash economy and identity fraud. In developing
this capability, it has become apparent that, while the information gathering
powers currently available to Centrelink investigators are sufficient to address
routine non-compliance, to effectively investigate and prosecute cases of
more serious abuse, Centrelink needs access to enhanced powers. Similar
considerations apply to investigations of matters handled directly by the
department.
11
Many Commonwealth agencies with responsibilities for administering
programs involving the payments of benefits, the giving of grants or the
regulation of standards have search and seizure powers to assist the
management of their program. Examples include the Health Insurance
Commission, the Australian Taxation Office, the Child Support Agency and
the Department of Immigration and Multicultural Affairs. Each of these
agencies has access to information gathering and search and seizure powers
that enable them to respond to the more serious threats on the integrity of the
programs they administer.
Explanation of the changes
Family Assistance Administration Act
Items 1 to 9 - Subsection 3(1)
Items 1 to 9 amend subsection 3(1) of the Family Assistance Administration
Act to insert the following definitions:
Assisting officer
An assisting officer is defined to mean, in relation to premises:
(a) a person who is an authorised officer (that is, a person authorised
by the Secretary under section 221A) and is assisting in searching
the premises; or
(b) a person who has been authorised by the authorised officer to
assist with searching the premises.
An assisting officer may assist in searching premises and could be a police
officer or a computer expert, etc.
Authorised officer
An authorised officer is a person authorised by the Secretary under
section 221A. An authorised officer may execute a search and seizure
warrant or may enter premises and seize evidential material with the consent
of the occupier of premises.
Data
Data, in Part 4A (Searches of premises), has the same meaning as in
Part IAA of the Crimes Act 1914 (the Crimes Act). Data is defined in Part IAA
of the Crimes Act to include information in any form or any program (or part of
a program).
12
Data held in a computer
Data held in a computer has the same meaning as in Part IAA of the Crimes
Act. Data held in a computer is defined in Part IAA of the Crimes Act to
include data held in any removable data storage device for the time being
held in a computer or data held in a data storage device on a computer
network of which the computer forms a part.
Data storage device
Data storage device has the same meaning as in Part IAA of the Crimes Act.
Data storage device is defined in Part IAA of the Crimes Act to mean a thing
containing, or designed to contain, data for use by a computer.
Evidential material
Evidential material is defined to mean a thing relevant to an offence against
the family assistance law or against Part 7.3 of the Criminal Code as far as it
relates to a matter under the family assistance law (for example, to a claim for
family assistance under the family assistance law or to approval of a child
care service). Part 7.3 of the Criminal Code contains offences relating to
fraudulent conduct, for example, obtaining property or a financial advantage
by deception.
Magistrate
Magistrate is defined to mean a magistrate who is remunerated by salary or
otherwise. This definition displaces the definition of magistrate in section 16C
of the Acts Interpretation Act 1901 which is limited to certain specified
magistrates and any other magistrate in respect of whose office an annual
salary is payable.
Occupier
Occupier of premises is defined to mean the person apparently in charge of
the premises.
Item 10 - After Part 4
Item 10 inserts new Part 4A into the Family Assistance Administration Act
which will allow an authorised officer to enter and search premises and seize
evidential material with either the consent of the occupier of the premises or
under a warrant.
New Division 1 of Part 4A deals with searches without a search warrant.
13
New section 103A - Offence related searches
New section 103A would allow an authorised officer and an officer assisting
him or her to enter premises if the authorised officer has reasonable grounds
for suspecting that evidential material may be on or in the premises and the
occupier of the premises consents to the entry.
The power in new section 103A to conduct offence-related searches, with the
occupier's consent to the entry, includes the premises of an approved child
care service and the premises of a former operator of an approved child care
service.
Under section 219K, an authorised officer may enter the premises of an
approved child care service in respect of which certain records are kept and
the premises of a former operator of an approved child care service, with the
consent of the occupier of the premises for the purposes of inspecting records
referred to in section 219F. This power remains available, for this purpose, to
an officer authorised to exercise powers in section 219K.
After an authorised officer and an officer assisting him or her enter premises
they may search the premises for evidential material and if they find it on or in
the premises, seize it.
New Division 2 of Part 4A deals with searches with a search warrant.
New Subdivision A sets out how to apply for a search warrant.
New section 103B - Authorised officer may apply for a search warrant
New subsection 103B(1) allows an authorised officer to apply to a magistrate
for a search warrant to search premises if the authorised officer has
reasonable grounds for suspecting that there is, or there will be within the next
72 hours, any evidential material on the premises.
Under new subsection 103B(2), an authorised officer has to give information
on oath or by affirmation to support the grounds for an application.
Under new subsection 103B(3), the authorised officer applying for the warrant
must notify the magistrate if he or she, or another authorised officer who will
be assisting in relation to the search warrant, has applied for a search warrant
under section 103B in relation to the same premises in the previous five
years. The authorised officer must also notify the magistrate of the particulars
of the previous application and the outcome.
New Subdivision B sets out when a search warrant may be issued, the
content of warrants, how to apply by other means and the things authorised
by a search warrant.
14
New section 103C - When search warrants may be issued
New subsection 103C(1) provides that if, after an authorised officer has made
an application for a search warrant, the magistrate is satisfied, that there are
reasonable grounds for suspecting that there is, or there will be within the next
72 hours, evidential material on the premises, the magistrate may issue a
search warrant.
The magistrate must form that opinion based on the information given by the
authorised officer.
New subsections 103C(2) to (4) relate to the issue of warrants by State and
Territory magistrates. New subsection 103C(2) provides that a magistrate in
a State or internal Territory may issue a warrant in relation to premises in that
State or Territory, an external Territory or another State or internal Territory
(including the Jervis Bay Territory) if the magistrate is satisfied that there are
special circumstances that make the issue of the warrant appropriate.
New subsection 103C(3) allows a magistrate in New South Wales or the
Australian Capital Territory to issue a warrant in relation to premises in the
Jervis Bay Territory.
New subsection 103C(4) prohibits a magistrate from issuing a warrant unless
the conferral of the power to do so is in accordance with an agreement
between the Commonwealth and the State or Territory concerned.
New subsection 103C(5) makes it clear that the function of issuing a search
warrant is conferred on a magistrate in a personal capacity and not as a court
or a member of a court. The magistrate does not have to perform that
function.
New subsection 103C(6) provides that a magistrate performing a function of,
or connected with, issuing a search warrant has the same protection and
immunity as if he or she were performing that function as, or as a member of,
the court of which the magistrate is a member.
New section 103D - Content of warrants
New subsection 103D(1) provides that the magistrate must state in the
warrant:
a) the offence to which the warrant relates;
b) a description of the premises;
c) the kinds of evidential material that are to be searched for;
d) the name of the authorised officer who, unless he or she inserts the
name of another authorised officer in the warrant, is to be responsible
for executing the warrant (this allows the warrant to be executed by
another authorised officer if, for example, for operational reasons the
officer who sought the warrant can not execute it);
15
e) that the warrant authorises the seizure of other things found at the
premises that the authorised officer or an assisting officer believes on
reasonable grounds to be evidential material in relation to the offence.
However, this power can only be used if the authorised officer of the
assisting officer believes on reasonable grounds that seizure of the
thing is necessary to prevent its concealment, loss or destruction or its
use in committing an offence;
f) the time at which the warrant expires; and
g) whether the warrant may be executed at any time or only during
particular hours.
New subsection 103D(2) provides that a warrant must expire not later than
the end of the seventh day after the day on which the warrant is issued. For
example, if a warrant is issued at 3pm on a Monday, the expiry time must not
be later than midnight of the following Monday.
New subsection 103D(3) makes it clear that the expiry time provision does not
prevent the issue of successive warrants in relation to the same premises.
New section 103E - Application by telephone etc and issue of warrant
New subsection 103E(1) allows an authorised officer to apply for a warrant by
telephone, fax, email or other electronic means in an urgent case or if the
delay that would occur if an application were made in person would frustrate
the effective execution of the warrant.
New subsection 103E(2) allows a magistrate to require communication by
voice to the extent that is practicable in the circumstances and to make a
recording of all or some of that communication.
New subsection 103E(3) makes it clear that an electronic application must
include all information that is required in an ordinary application, but the
application may, if necessary, be made before the information is sworn or
affirmed.
New subsection 103E(4) provides that if an application is made under
section 103E, the authorised officer and magistrate must have reasonable
grounds for suspecting that there is, or there will be within the next 48 hours,
any evidential material on the premises (sections 103B and 103C require the
information to be on the premises within 72 hours where the warrant is sought
in person). Further, the expiry time of the warrant is the end of the 48th hour
after the warrant is issued rather than the end of the seventh day.
New subsection 103E(5) provides that if the magistrate is satisfied that a
search warrant should be issued urgently or the delay that would occur if an
application were made in person would frustrate the effective execution of the
warrant, the magistrate may complete and sign the same form of search
warrant that would be issued under new section 103C.
16
New subsection 103E(6) provides that if a warrant is issued, the magistrate
must inform the applicant, by telephone, fax, email or other electronic means,
of the terms of the warrant and the day on which and the time at which it was
signed.
New subsection 103E(7) provides that the applicant must them complete a
form of search warrant in terms substantially corresponding to those given by
the magistrate, stating on the form the name of the magistrate and the day on
which and the time at which the warrant was signed. New sections 103X to
103ZA contain offences related to completing the form of search warrant in
these circumstances.
New subsection 103E(8) requires the applicant to give or transmit to the
magistrate the form of the complete search warrant and if the information
given was not sworn or affirmed - that information duly sworn or affirmed.
New subsection 103E(9) requires the applicant to do this no later than the day
after the warrant expires or the day after the day on which the search warrant
was executed, whichever is the earlier.
New subsection 103E(10) requires the magistrate to attach to those
documents the form of search warrant he of she has completed.
New subsection 103E(11) provides that if it is material, in any proceedings, for
a court to be satisfied that the exercise of a power under a search warrant
issued under this section was duly authorised and the form of the warrant
signed by the magistrate is not produced in evidence, the court is to assume,
unless the contrary is proved, that the exercise of the power was not duly
authorised.
New subsection 103E(12) defines applicant to means the authorised officer
who applied for the search warrant.
New section 103F - The things authorised by a search warrant
New section 103F provides that if a search warrant is in force in relation to
premises, it authorises the authorised officer or an assisting officer to:
a) enter the premises
b) search the premises for the kinds of evidential material specified in the
warrant, and to seize things of that kind found on the premises;
c) to seize other things found on the premises that the authorised officer
or an assisting officer believes on reasonable grounds to be evidential
material in relation to the offence. However, this power can only be
used if the authorised officer or the assisting officer believes on
reasonable grounds that seizure of the thing is necessary to prevent its
concealment, loss or destruction or its use in committing an offence.
17
New section 103G - Announcement before entry
New subsection 103G(1) requires an authorised officer to, before entering
premises, announce that he or she is authorised to enter the premises and
give any person at the premises an opportunity to allow entry to the premises.
New subsection 103G(2) provides that an authorised officer is not required to
comply with that requirement if he or she believes on reasonable grounds that
immediate entry to the premises is required to ensure the safety of a person
or to ensure that the effective execution of the warrant is not frustrated (for
example, by destruction of evidence).
New section 103H - Warrant to be executed within permitted hours
New section 103H provides that if a search warrant states that it may be
executed only during particular hours, the warrant must not be executed
outside those hours.
New section 103J - Availability of assistance and use of force in executing a
warrant
New subsection 103J(1) allows the authorised officer to obtain assistance that
is necessary and reasonable in the circumstances and use the force against
persons and things that is necessary and reasonable in the circumstances.
New subsection 103J(2) allows an assisting officer to use force against
persons and things that is necessary and reasonable in the circumstances if
he or she is also an authorised officer. If the assisting officer is not an
authorised officer, he or she can only use force against things.
New section 103K - Copy of warrant to be shown to occupier etc.
New subsection 103K(1) requires the authorised officer or an assisting officer
to make a copy of the warrant available to the occupier of the premises, or
another person who apparently represents the occupier.
New subsection 103K(2) requires the authorised officer to identify himself or
herself to the person at the premises.
New subsection 103K(3) allows the signature of the magistrate who issued it
to be removed from the copy.
New section 103L - Occupier entitled to watch search
New subsection 103L(1) allows the occupier, or the person who apparently
represents the occupier, who is present at the premises, to watch the search.
18
New subsection 103L(2) makes it clear that subsection (1) is subject to
Part IC of the Crimes Act 1914. Part IC relates to investigation of
Commonwealth offences including cautioning persons who are under arrest or
protected suspects.
New subsection 103L(3) provides that the right to watch the search ceases if
the person impedes the search.
New subsection 103L(4) makes it clear that section 103L does not prevent
two or more areas of the premises being searched at the same time.
New section 103M - Specific powers available to person executing a warrant
New subsection 103M(1) allows the authorised officer or assisting officer to
take photographs or video recording of the premises or things on the
premises for a purpose incidental to the execution of the warrant or with the
written consent of the occupier of the premises.
New subsection 103M(2) allows the executing officer and assisting officers to
finish executing a warrant that is still in force if they have all left the premises
for not more than one hour or for a longer period with the written consent of
the occupier of the premises.
New subsection 103M(3) provides that if the execution of a search warrant is
stopped by a court order, it may be completed if the order is revoked or
reversed on appeal and the warrant is still in force.
New section 103N - Use of equipment to examine or process things
New subsection 103N(1) allows the authorised officer or an assisting officer to
bring to the premises any equipment reasonably necessary to examine or
process things found at the premises in order to determine whether they are
things that may be seized under the warrant.
New subsection 103N(2) allows a thing found at the premises to be moved to
another place for examination or processing in order to determine whether it
may be seized under a warrant if:
a) it is significantly more practicable to do so having regard to the
timeliness and cost of examining or processing the thing at another
place and the availability of expert assistance and there are reasonable
grounds to believe that the thing contains or constitutes evidential
material; or
b) the occupier of the premises consents in writing.
If a thing is moved to another place, new subsection 103N(3) requires the
authorised officer, if it is practicable to do so, to inform the occupier of the
address of the place and the time at which the examination or processing will
be carried out and allow the occupier or his or her representatives to be
present during the examination or processing.
19
New subsection 103N(4) allows the thing to be moved to another place for no
longer than 72 hours.
New subsection 103N(5) allows an authorised officer to apply to a magistrate
for one or more extensions of that time. The authorised officer can only do so
if he or she believes on reasonable grounds that the thing cannot be
examined or processed within 72 hours or that time as previously extended.
New subsection 103N(6) requires the authorised officer to give notice of the
application to the occupier and the occupier is entitled to be heard in relation
to the application.
New subsection 103N(7) allows the authorised officer or an assisting officer to
operate equipment already on the premises (eg computers) to examine or
process a thing found on the premises in order to determine whether it may
be seized. The equipment can only be used if the authorised officer or the
assisting officer believes on reasonable grounds that the equipment is
suitable for the examination or processing and the examination or processing
can be carried out without damaging the equipment or thing.
New subsection 103N(8) provides that a notice of an application given to the
occupier of the premises is not a legislative instrument. This provision
confirms that such instruments do not fall within the definition of legislative
instrument in section 5 of the Legislative Instruments Act 2003.
New section 103P - Use of electronic equipment at premises without expert
assistance
New subsection 103P(1) allows the authorised officer or an assisting officer to
operate electronic equipment on the premises to access data (including data
not held at the premises) if he or she believes on reasonable grounds that the
data might constitute evidential material and the equipment can be operated
without damaging it.
New subsection 103P(2) provides that if the authorised officer or the assisting
officer believes on reasonable grounds that any data accessed by operating
the electronic equipment might constitute evidential material, he or she may
copy the data to a disk, tape or other associated device at the premises, and
take the device from the premises.
New subsection 103P(3) provides that if an authorised officer or assisting
officer takes the device from the premises and the Secretary is satisfied that
the data is not required (or is no longer required) for:
a) investigating the offence to which the warrant relates; or
b) judicial proceedings or administrative review proceedings; or
c) resolving a complaint under the Privacy Act 1988;
the Secretary must arrange for:
20
d) the removal of the data from any device in the control of the
Department; and
e) the destruction of any other reproduction of the data in the control of
the Department.
New subsection 103P(4) provides that if the authorised officer or the assisting
officer, after operating the equipment, finds that evidential material is
accessible by doing so, he or she may seize the equipment and any disk, tape
or other associated device or if the material can, by using facilities at the
premises, be put in documentary form, operate the facilities to put the material
in that form and seize the documents so produced.
New subsection 103P(5) only allows equipment, disks, tapes or associated
devices to be seized under paragraph 103P(4)(a) if it is not practicable to put
the material into documentary form or possession of the equipment by the
occupier could constitute an offence.
New section 103Q - Use of electronic equipment at premises with expert
assistance
New subsection 103Q(1) allows an authorised officer or assisting officer to
search equipment if he or she believes on reasonable grounds that evidential
material may be accessible by operating the equipment, expert assistance is
required to operate the equipment, and if the equipment is not secured, the
material may be destroyed, altered or otherwise interfered with.
The equipment may be secured by locking it up, placing a guard or by any
other means.
New subsection 103Q(2) requires the authorised officer or the assisting officer
to notify the occupier in writing of his or her intention to secure the equipment
and the fact that the equipment may be secured for up to 24 hours.
New subsections 103Q(3) and (4) allow the equipment to be secured for 24
hours or for such period as allowed by an magistrate. An application to a
magistrate can only be made if the authorised officer or the assisting officer
believes on reasonable grounds that expert assistance will not be available
within 24 hours.
New subsection 103Q(5) requires the authorised officer or the assisting officer
to notify the occupier of his or her intention to apply for an extension, and the
occupier is entitled to be heard in relation to that application.
New subsection 103Q(6) makes it clear that the provisions of Division 2 in
relation to the issuing of search warrant apply, with such modifications as are
necessary, to the issuing of an extension.
21
New subsection 103Q(7) makes it clear that a notification is not a legislative
instrument. This provision confirms that such instruments do not fall within
the definition of legislative instrument in section 5 of the Legislative
Instruments Act 2003.
New section 103R - Person with knowledge of a computer or computer
system to assist access etc
New subsection 103R(1) allows an authorised officer to apply to a magistrate
for an order requiring a specified person to provide any information or
assistance that is reasonable and necessary to allow the officer or an
assisting officer to do one or more of the following:
a) access data held in a computer, or accessible from a computer, that is
on premises in relation to which the warrant is in force;
b) copy the data to a data storage device;
c) convert the data into documentary form.
New subsection 103R(2) allows the magistrate to grant an order if he or she is
satisfied that:
a) there are reasonable grounds for suspecting that evidential material is
held in, or is accessible from, the computer (eg held on an offsite
database); and
b) the specified person is:
- reasonably suspected of having committed the offence stated in the
warrant;
- the owner or lessee of the computer; or
- an employee of the owner or lessee of the computer; and
c) the specified person has relevant knowledge of:
- the computer of a computer network of which the computer forms a
part; or
- measures applied to protect data held in, or accessible from, the
computer (eg passwords).
New subsection 103R(3) provides that a person commits an offence if the
person fails to comply with the order. The offence is punishable by
imprisonment of up to 6 months.
New section 103S - Accessing data held on other premises - notification to
occupier of those premises
New subsection 103S(1) provides that if data is held on another premises and
is accessed under new subsection 103P(1) and it is practicable to notify the
occupier of the other premises that the data has been access, the authorised
officer must do so as soon as practicable. Further if the authorised officer has
arranged, or intends to arrange, for continued access to the data under new
subsection 103P(2) or (4), the notice must include that information.
22
New subsection 103S(2) requires the notice given under new
subsection 103P(1) to include sufficient information to allow the occupier of
the other premises to contact the authorised officer.
New section 103T - Compensation for damage to electronic equipment
New section 103T(1) provides that new section 103T applies if:
a) as a result of equipment being operated as mentioned in new
section 103N, 103P or 103Q:
- damage is caused to the equipment; or
- the data recorded on the equipment is damaged; or
- programs associated with the use of the equipment, or with the use
of the data, are damaged or corrupted; and
b) the damage or corruption occurs because:
- insufficient care was exercised in selecting the person who was to
operate the equipment; or
- insufficient care was exercised by the person operating the
equipment.
Where such damage or corruption occurs, new subsection 103T(2) requires
the Commonwealth to pay the owner of the equipment, or the user of the data
or programs, such reasonable compensation for the damage or corruption as
the Commonwealth and the owner or user agree on.
New subsection 103T(3) provides that if the Commonwealth and the owner or
user fail to agree on the amount of compensation, the owner or user may
institute proceedings in the Federal Court of Australia for such reasonable
amount of compensation as the Court determines.
New subsection 103T(4) requires regard to be had, when determining the
compensation, to whether the occupier of the premises, or the occupier's
employees or agents, if they were available at the time, had provided any
appropriate warning or guidance on the operation of the equipment.
New subsection 103T(5) provides that compensation is payable out of money
appropriated by the Parliament.
New subsection 103T(6) defines damage, in relation to data, to include
damage by erasure of data or addition of other data.
New section 103U - Copies of seized things to be provided
New section 103U requires the authorised officer or assisting officer who
seizes a document, film, computer file or other thing that can be readily copied
or a device storing information that can be readily copied, to give a copy of the
thing or information to the occupier or their representative who is present
when the warrant is executed if he or she asks for a copy.
23
However, this does not apply to a thing that has been seized under
subsection 103P(2) (copied data) or paragraph 103P(4)(b) (documentary
copies) or if possession of the document, film, computer file, thing or
information by the occupier could constitute an offence.
New section 103V - Receipts of things seized under warrant
New subsection 103V(1) requires the authorised officer or assisting officer to
provide receipts for things seized under a warrant or moved under
subsection 103N(2) (which allows a thing to moved to another place for
examination or processing in order to determine whether it may be seized
under a warrant).
New subsection 103V(2) makes it clear that two or more things that are
seized or moved may be covered by one receipt.
New section 103W - Making false statements in warrants
New section 103W provides that a person commits an offence if the person
makes a statement in applying for a search warrant and the person knows
that the statement is false or misleading in a material particular. The offence
is punishable by imprisonment of up to two years.
New section 103X - Offence for stating incorrect names in telephone warrants
New section 103X provides that a person commits an offence if the person
states a name of a magistrate in a document, the documents purports to be a
form of search warrant under section 103E (ie warrants issued by telephone
etc) and the name is not the name of the magistrate who issued the search
warrant. The offence is punishable by imprisonment of up to two years.
New section 103Y - Offence for unauthorised form of warrant
New section 103Y provides that a person commits an offence if the person
states a matter in a form of search warrant issued under section 103E (that is,
warrants issued by telephone etc) and the person knows that the matter
departs in a material particular from the form authorised by the magistrate.
For example, this would cover knowingly recording on the form an incorrect
expiry time. The offence is punishable by imprisonment of up to two years.
New section 103Z - Offence for executing etc. an authorised form of warrant
New section 103Z provides that a person commits an offence if the person
executes or presents a document that purports to be a form of search warrant
under section 103E (ie warrants issued by telephone etc) to another person
and the person knows that the document has not been approved by a
magistrate under that section or departs in a material particular from the terms
authorised by a magistrate under that section. The offence is punishable by
imprisonment of up to two years.
24
New section 103ZA - Offence for giving unexecuted form of warrant
New section 103ZA provides that a person commits an offence if the person
gives a magistrate a form of search warrant under section 103E that is,
warrants issued by telephone etc) and the document is not the form of search
warrant that the person executed. The offence is punishable by imprisonment
of up to two years.
New Subdivision E contains miscellaneous matters.
New section 103ZB - Other laws about search or seizure not affected
New subsection 103ZB(1) makes it clear that Division 2 of Part 4A is not
intended to limit or exclude the operation of another law of the Commonwealth
relating to the search of premises or the seizure of things. For example,
search and seizure warrants issued under section 3C of the Crimes Act 1914.
New subsection 103ZB(2) also makes it clear that even though another law of
the Commonwealth provides power to do one or more of the things referred to
in subsection 103ZB(1), a similar power conferred by this Part may be used
despite the existence of the power under the other law.
New section 103ZC - Law relating to legal professional privilege
New section 103ZC makes it clear that new Division 2 of Part 4A does not
affect the law relating to legal professional privilege.
Item 11 - Section 219H and 219J
Item 11 repeals sections 219H and 219J of the Family Assistance
Administration Act. Section 291H currently allows authorised officers to be
appointed for the purposes of the exercise of the powers referred to in section
219K of that Act (which allows authorised officers to enter premises of an
approved child care service, with the occupier's consent, for the purposes of
inspection of specified records). Section 219J provides for issuing authorised
officers with an identity card in the form approved by the Secretary.
These sections will be replaced by new sections 221A and 221B which will
apply to powers exercised for the purposes of new Part 4A and section 219K.
Item 12 - Subsection 219K(2)
Item 10B amends subsection 219K(2) to remove the requirement that the
authorised officer who enters premises under that section shows his or her
identity card if required by the occupier. This requirement is being moved to
new subsections 221B(4).
25
Item 13 - After section 221
New section 221A - Appointment of authorised officers
New section 221A allows the Secretary, in writing, to authorise a person, in
writing, to be an authorised officer for the purposes of Part 4A and/or
exercising powers referred to in section 219K.
New subsection 221A(2) provides that the person must be an officer who the
Secretary considers has suitable qualifications or experience. Officer is
defined to mean an officer of an agency (the Department, Centrelink, the
Australian Taxation Officer or Medicare Australia) and includes the head of
the agency, an employee of the agency and any other person engaged by the
agency, under contract or otherwise, to exercise powers, or perform duties or
functions, of the agency.
New subsection 221A(3) provides that in exercising powers as an authorised
officer, an authorised officer must comply with any directions given by the
Secretary.
New subsection 221A(4) makes it clear that a direction is not a legislative
instrument. This provision confirms that such instruments do not fall within the
definition of legislative instrument in section 5 of the Legislative Instruments
Act 2003.
New section 221B - Identity cards
New subsection 221B(1) requires the Secretary to issue an identity card to an
authorised officer.
New subsection 221B(2) requires an identity card to be in a form approved by
the Secretary and contain a recent photograph of an authorised officer. There
could be more than one form of the identity card approved at any time (for
example, Centrelink' s officers may have an identity card in a different form
than the departmental officer's). These are the same requirements as in
current section 219J.
New subsection 221B(3) requires an authorised officer to carry the identity
card at all times when exercising powers as an authorised officer in
accordance with Part 4A or section 219K.
New subsection 221B(4) provides that an authorised officer is not entitled to
exercise any powers under Part 4A or section 219K in relation to premises if
the occupier requires the authorised officer to produce his or her identity card
for inspection by the occupier and the authorised officer fails to comply with
the requirement.
26
New section 221B(5) provides that a person commits an office if the person
has been issued with an identity card, the person ceases to be an authorised
officer and the person does not return the identity card to the Secretary as
soon as practicable after ceasing to be an authorised officer. The penalty for
contravening this section is up to 1 penalty unit (that is, currently $110).
Social Security Administration Act
The amendments to the Social Security Administration Act mirror the
amendments described above to the Family Assistance Administration Act.
Item 14 - After Part 4
Item 14 inserts new Part 4A into the Social Security Administration Act.
New section 190 of the Social Security Administration Act mirrors new
section 103A of the Family Assistance Administration Act.
New section 190A of the Social Security Administration Act mirrors new
section 103B of the Family Assistance Administration Act.
New section 190B of the Social Security Administration Act mirrors new
section 103C of the Family Assistance Administration Act.
New section 190C of the Social Security Administration Act mirrors new
section 103D of the Family Assistance Administration Act.
New section 190D of the Social Security Administration Act mirrors new
section 103E of the Family Assistance Administration Act.
New section 190E of the Social Security Administration Act mirrors new
section 103F of the Family Assistance Administration Act.
New section 190F of the Social Security Administration Act mirrors new
section 103G of the Family Assistance Administration Act.
New section 190H of the Social Security Administration Act mirrors new
section 103J of the Family Assistance Administration Act.
New section 190J of the Social Security Administration Act mirrors new
section 103K of the Family Assistance Administration Act.
New section 190K of the Social Security Administration Act mirrors new
section 103L of the Family Assistance Administration Act.
New section 190L of the Social Security Administration Act mirrors new
section 103M of the Family Assistance Administration Act.
New section 190M of the Social Security Administration Act mirrors new
section 103N of the Family Assistance Administration Act.
27
New section 190N of the Social Security Administration Act mirrors new
section 103P of the Family Assistance Administration Act.
New section 190P of the Social Security Administration Act mirrors new
section 103Q of the Family Assistance Administration Act.
New section 190Q of the Social Security Administration Act mirrors new
section 103R of the Family Assistance Administration Act.
New section 190R of the Social Security Administration Act mirrors new
section 103S of the Family Assistance Administration Act.
New section 190S of the Social Security Administration Act mirrors new
section 103T of the Family Assistance Administration Act.
New section 190T of the Social Security Administration Act mirrors new
section 103U of the Family Assistance Administration Act.
New section 190U of the Social Security Administration Act mirrors new
section 103V of the Family Assistance Administration Act.
New section 190V of the Social Security Administration Act mirrors new
section 103W of the Family Assistance Administration Act.
New section 190W of the Social Security Administration Act mirrors new
section 103X of the Family Assistance Administration Act.
New section 190CX of the Social Security Administration Act mirrors new
section 103Y of the Family Assistance Administration Act.
New section 190Y of the Social Security Administration Act mirrors new
section 103Z of the Family Assistance Administration Act.
New section 190Z of the Social Security Administration Act mirrors new
section 10ZA of the Family Assistance Administration Act.
New section 190ZA of the Social Security Administration Act mirrors new
section 103ZB of the Family Assistance Administration Act.
New section 190ZB of the Social Security Administration Act mirrors new
section 103ZC of the Family Assistance Administration Act.
New Division 3 relates to authorised officers.
28
New section 190ZC - Appointment of authorised officers
New subsection 190ZC(1) allows the Secretary, in writing, to authorise a
person to be an authorised officer for the purposes of new Part 4A.
New subsection 190ZC(2) provides that the person must be an officer of the
Department, or of the Agency (Centrelink), who the Secretary considers has
suitable qualifications or experience.
New subsection 190ZC(3) requires authorised officers to comply with any
directions given by the Secretary in exercising the powers as an authorised
officer.
New subsection 190ZC(4) makes it clear that a direction is not a legislative
instrument. This provision confirms that such instruments do not fall within the
definition of legislative instrument in section 5 of the Legislative Instruments
Act 2003.
New section 190ZD - Identity cards
New subsection 190ZD(1) requires the Secretary to issue an identity card to a
person who is an authorised officer for the purposes of new Part 4A.
New subsection 190ZD(2) requires the identity card to be in the form
prescribed by the regulations and contain a recent photograph of authorised
officer.
New subsection 190ZD(3) requires an authorised officer to carry the identity
card at all times when exercising powers as an authorised officer in
accordance with new Part 4A.
New subsection 190ZD(4) provides that an officer is not entitled to exercise
any powers under new Part 4A in relation to premises if the occupier requires
the authorised officer to produce his or her identity card for inspection by the
occupier and the authorised officer fails to comply with the requirement.
New subsection 190ZD(5) provides that a person commits an office if the
person has been issued with an identity card, the person ceases to be an
authorised officer and the person does not return the identity card to the
Secretary immediately after ceasing to be an authorised officer. The penalty
for contravening this section is up to 1 penalty unit (ie currently $110).
Items 15 to 23 - Subclause 1(1) of Schedule 1
Items 15 to 23 define `assisting officer', `authorised officer', `data', `data held in
a computer', `data storage device', `magistrate', `occupier' and `premises' in
the same way as items 1 to 9 above.
29
Item 20 defines `evidential material' as a thing relevant to an offence against:
- the social security law; or
- Part 7.3 of the Criminal Code in relation to a claim for a social security
payment under the Social Security Act 1991.
Part 7.3 of the Criminal Code contains offences relating to fraudulent conduct,
for example obtaining property or a financial advantage by deception.
Student Assistance Act 1973
The amendments to the Student Assistance Act mirror the amendments
described above to the Family Assistance Administration Act.
Items 24 to 32 - Subsection 3(1)
Items 24 to 32 defined `assisting officer', `authorised officer', `data', `data held
in a computer', `data storage device', `magistrate', `occupier' and `premises' in
the same way as items 1 to 9 above.
Item 29 defines `evidential material' as a thing relevant to an offence against:
- the Student Assistance Act or the Social Security Act; or
- Part 7.3 of the Criminal Code in relation to a claim for a student
assistance benefit.
Part 7.3 of the Criminal Code contains offences relating to fraudulent conduct,
for example obtaining property or a financial advantage by deception.
Item 33 - After Part 7
Item 33 inserts Part 8 into the Student Assistance Act.
New section 60 of the Student Assistance Act mirrors new section 103A of the
Family Assistance Administration Act.
New section 61 of the Student Assistance Act mirrors new section 103B of the
Family Assistance Administration Act.
New section 62 of the Student Assistance Act mirrors new section 103C of the
Family Assistance Administration Act.
New section 63 of the Student Assistance Act mirrors new section 103D of the
Family Assistance Administration Act.
New section 64 of the Student Assistance Act mirrors new section 103E of the
Family Assistance Administration Act.
New section 65 of the Student Assistance Act mirrors new section 103F of the
Family Assistance Administration Act.
30
New section 66 of the Student Assistance Act mirrors new section 103G of
the Family Assistance Administration Act.
New section 67 of the Student Assistance Act mirrors new section 103H of the
Family Assistance Administration Act.
New section 68 of the Student Assistance Act mirrors new section 103J of the
Family Assistance Administration Act.
New section 69 of the Student Assistance Act mirrors new section 103K of the
Family Assistance Administration Act.
New section 70 of the Student Assistance Act mirrors new section 103L of the
Family Assistance Administration Act.
New section 71 of the Student Assistance Act mirrors new section 103M of
the Family Assistance Administration Act.
New section 72 of the Student Assistance Act mirrors new section 103N of the
Family Assistance Administration Act.
New section 73 of the Student Assistance Act mirrors new section 103P of the
Family Assistance Administration Act.
New section 74 of the Student Assistance Act mirrors new section 103Q of
the Family Assistance Administration Act.
New section 75 of the Student Assistance Act mirrors new section 103R of the
Family Assistance Administration Act.
New section 76 of the Student Assistance Act mirrors new section 103S of the
Family Assistance Administration Act.
New section 77 of the Student Assistance Act mirrors new section 103T of the
Family Assistance Administration Act.
New section 78 of the Student Assistance Act mirrors new section 103U of the
Family Assistance Administration Act.
New section 79 of the Student Assistance Act mirrors new section 103V of the
Family Assistance Administration Act.
New section 80 of the Student Assistance Act mirrors new section 103W of
the Family Assistance Administration Act.
New section 81 of the Student Assistance Act mirrors new section 103X of the
Family Assistance Administration Act.
31
New section 82 of the Student Assistance Act mirrors new section 103Y of the
Family Assistance Administration Act.
New section 83 of the Student Assistance Act mirrors new section 10Z of the
Family Assistance Administration Act.
New section 84 of the Student Assistance Act mirrors new section 103ZA of
the Family Assistance Administration Act.
New section 85 of the Student Assistance Act mirrors new section 103ZB of
the Family Assistance Administration Act.
New section 86 of the Student Assistance Act mirrors new section 103ZC of
the Family Assistance Administration Act.
New Division 3 relates to authorised officers.
New section 87 - Appointment of authorised officers
New subsection 87(1) allows the Secretary, in writing, to authorise a person to
be an authorised officer for the purposes of new Part 8.
New subsection 87(2) provides that the person must be an officer of the
Department, or of the Agency (Centrelink), who the Secretary considers has
suitable qualifications or experience.
New subsection 87(3) requires authorised officers to comply with any
directions given by the Secretary in exercising the powers as an authorised
officer.
New subsection 87(4) makes it clear that a direction is not a legislative
instrument. This provision confirms that such instruments do not fall within the
definition of legislative instrument in section 5 of the Legislative Instruments
Act 2003.
New section 88 - Identity cards
New subsection 88(1) requires the Secretary to issue an identity card to a
person who is an authorised officer for the purposes of new Part 8.
New subsection 88(2) requires the identity card to be in the form prescribed
by the regulations and contain a recent photograph of authorised officer.
New subsection 88(3) requires an authorised officer to carry the identity card
at all times when exercising powers as an authorised officer in accordance
with new Part 8.
32
New subsection 88(4) provides that an officer is not entitled to exercise any
powers under new Part 8 in relation to premises if the occupier requires the
authorised officer to produce his or her identity card for inspection by the
occupier and the authorised officer fails to comply with the requirement.
New subsection 190ZD(5) provides that a person commits an office if the
person has been issued with an identity card, the person ceases to be an
authorised officer and the person does not return the identity card to the
Secretary immediately after ceasing to be an authorised officer. The penalty
for contravening this section is up to 1 penalty unit (ie currently $110).
33
Schedule 3 - Crisis Payment
Summary
Schedule 3 gives effect to a measure announced in the 2006 Budget
concerning the extension of crisis payment. A crisis payment may be paid to
a person who remains in their own home after being subjected to domestic or
family violence by a family member who has left or has been removed from
the family home.
Background
Crisis payment was introduced in November 1999 to assist eligible people
suffering severe financial hardship. A person could qualify on two bases.
Firstly, a person who had been released from gaol, or from psychiatric
confinement in certain circumstances could qualify for crisis payment
(section 1061JG of the Social Security Act). Secondly, a person who was
forced to leave their home and establish a new home due to an extreme
circumstance, which may be attributable to a natural disaster such as a flood
or circumstances such as domestic violence, could qualify for crisis payment
(section 1061JH of the Social Security Act).
Under the current rules, persons who choose to remain in their home after
experiencing domestic violence are not eligible for crisis payment.
Schedule 3 gives effect to a measure announced in the 2006 Budget and
establishes a further ground upon which to qualify for crisis payment. From
1 January 2007, persons who have been subjected to domestic or family
violence and who are receiving a social security income support payment may
be paid a one-off crisis payment without having to establish a new home. The
payment will help fund the cost of securing the person's home and other
related expenses.
Crisis Payment can be paid up to four times in any 12-month period.
Explanation of changes
Amendments of the Social Security Act
One of the qualification criteria for crisis payment requires the person to be in
severe financial hardship on the day the person claims crisis payment as
defined in section 19D of the Social Security Act. Item 1 makes an
amendment of subsection 19D(1) consequential to item 3. This amendment
ensures that the definition of severe financial hardship applies to the new
section 1061JHA. (New section 1061JHA contains the qualification criteria
applicable to circumstances where a person chooses to remain in their own
home after removal of the family member for abusive behaviour, see item 3.)
34
Item 2 repeals paragraph 1061JH(1)(g) and substitutes a new
paragraph 1061JH(1)(g) that is similar to new paragraph 1061JHA(1)(h)
(item 3). New paragraph 1061JH(1)(g) limits qualification for crisis payment
claimed in circumstances where the extreme circumstances have forced the
person's departure from home to cases where no more than three crisis
payments have been payable to the person under section 1061JH or new
section 1061JHA in the 12 months immediately preceding the day on which
the claim is made.
New paragraph 1061JH(1)(g) reflects the intention to limit crisis payments
made because the person qualified under section 1061JH or new
section 1061JHA (or a combination of section 1061JH and new
section 1061JHA) to four in any 12-month period. Payments made because
the person qualified under section 1061JG (release from goal or psychiatric
confinement) do not count towards the payments referred to in new
paragraph 1061JH(1)(g).
Item 3 inserts a new section 1061JHA into Part 2.23A of the Social Security
Act after section 1061JH. New section 1061JHA sets out a new ground to
qualify for crisis payment to give effect to the Budget announcement.
A person will be qualified for crisis payment under new section 1061JHA only
if the person satisfies all the criteria set out in new
paragraphs 1061JHA(1)(a)-(h) (inclusive) and subsection 1061JHA(2).
New paragraph 1061JHA(1)(a) requires the person to have been subjected to
domestic or family violence. Domestic or family violence occurs when a
family member attempts physically or psychologically to dominate or harm the
other and includes (but is not limited to) physical violence, sexual abuse,
emotional abuse, intimidation, humiliation, neglect, threats, economic
deprivation or exploitation and social isolation. Subsection 23(14) of the
Social Security Act contains the applicable definition of family member.
New paragraph 1061JHA(1)(b) requires that, at the time of the violence, the
person was living with that family member. New paragraph 1061JHA(1)(c)
requires the family member to have left, or to have been removed from the
person's home because of the violence. This paragraph would be satisfied in
circumstances where, for example, an apprehended violence order (or similar)
was taken out by the person claiming crisis payment against the family
member concerned and the family member leaves the home, or if the police
removed the family member. New paragraph 1061JHA(1)(d) requires that the
person claiming crisis payment remain living in the home after the family
member leaves or is removed. New paragraph 1061JHA(1)(e) clarifies that
the person's home must be in Australia.
35
New paragraph 1061JHA(1)(f) requires the person to have claimed the crisis
payment within seven days after the day on which the family member left or
was removed. This time limitation on making a claim is similar to that
applicable to the other qualification grounds for crisis payment.
New paragraph 1061JHA(1)(g) requires the person, on the day on which the
claim is made:
o to be in severe financial hardship as defined in section 19D; and
o to have made a claim for a social security pension or benefit
before or on the day on which crisis payment is claimed and to
be qualified for that pension or benefit.
New paragraph 1061JHA(1)(h) is similar in intent to new
paragraph 1061JH(1)(g) (item 2). New paragraph 1061JHA(1)(h) requires
that, during the 12 months immediately preceding the day on which the
person claims crisis payment, no more than three crisis payments have been
payable to the person based on qualification under new section 1061JHA or
section 1061JH (or a combination of section 1061JHA and 1061JH).
The note to new subsection 1061JHA(1) clarifies that the definition of family
member in subsection 23(14) of the Social Security Act applies when
interpreting the references to family member in new section 1061JHA. A
family member in relation to the person is:
· the partner, father or mother of the relevant person;
· a sister, brother or child of the relevant person; or
· any other person who, in the opinion of the Secretary, should be
treated for the purposes of this definition as one of the relevant
person's relations described in paragraph (a) or (b).
New subsection 1061JHA(2) provides that a person is not qualified if the
Secretary is satisfied that the family member left the person's home with a
view to the person obtaining a crisis payment.
Item 4 amends section 1061JL. Section 1061JL requires a person to make a
proper claim for the payment. The amendment is consequential to item 3 and
ensures that this claim provision applies to claims based on the qualification
criteria set out in new section 1061JHA as well.
Application provision
Item 5 sets out the application provision for the amendments made by
Schedule 2. These amendments apply in respect of domestic or family
violence to a person by a family member where the person leaves or is
removed from the person's home on or after 1 January 2007.
36
Schedule 4 - Miscellaneous
Summary
These measures make various amendments to the Aged Care Act 1997, Child
Support (Assessment) Act 1989, the Child Support (Registration and
Collection) Act 1988 and the social security law to allow for the exchange of
information between agencies for compliance purposes.
Background
An area of debt risk for social security customers occurs when people
receiving carer payment for the care of a frail or aged person overlook the
need to tell Centrelink when the person they are caring for permanently enters
residential aged care. Potentially large debts can arise if carer payment
continues to be paid in these circumstances. Circumventing this also has the
advantage of enhancing the integrity of the payment system by ensuring that
correct payments are made to those who properly qualify.
These amendments allow the Department of Health and Ageing to give
Centrelink regular information about people permanently entering residential
aged care so the data can be checked against information on people
receiving carer payment. This data exchange will identify cases where caring
responsibilities have ceased and will trigger a review of their payment.
Proper privacy procedures will be followed to safeguard personal information
provided through these new processes.
Explanation of the changes
Aged Care Act 1997
Item 1 inserts new paragraphs 86-3(ca) and (cb) into the Aged Care
Act 1997. These new provisions allow the Secretary for the Department of
Health and Ageing to provide protected information, for the purpose of
administering the social security law, to the Chief Executive Officer of
Centrelink or the Secretary of a department with responsibility for the social
security law.
Item 2 defines Centrelink, for the purposes of new paragraphs 86-3(ca) and
(cb) as the Commonwealth Services Delivery Agency.
Child Support (Assessment) Act 1989
Item 3 inserts new paragraph 150(3)(bb) into the Child Support (Assessment)
Act 1989.
37
Section 150 of the Child Support (Assessment) Act 1989 prohibits a person,
to whom that section applies, from communicating protected information to
another person. New paragraph 150(3)(bb) allows the Registrar or a person
authorised by the Registrar to disclose protected information to the Chief
Executive Officer or an employee of Medicare Australia for the purposes of
the performance of functions or powers under the Medicare Australia
Act 1973.
The amendment will strengthen the Australian Government's fraud and
compliance frameworks through increased information sharing between the
two agencies.
Child Support (Registration and Collection) Act 1988
Item 4 inserts new paragraph 16(3)(bb) into the Child Support (Registration
and Collection) Act 1988.
Section 16 of the Child Support (Registration and Collection) Act 1988
prohibits a person, to whom that section applies, from communicating
protected information to another person. New paragraph 16(3)(bb) allows the
Registrar or a person authorised by the Registrar to disclose protected
information to the Chief Executive Officer or an employee of Medicare
Australia for the purposes of the performance of functions or powers under
the Medicare Australia Act 1973.
The amendment will also strengthen the Australian Government's fraud and
compliance frameworks through increased information sharing between the
two agencies.
Social Security (Administration) Act
Item 5 inserts new paragraph 195(2)(ha) into the Social Security
Administration Act. This new provision allows the Secretary to request
information in regard to the real property interests of each person in a class of
people. This information must be relevant to the matters listed in
subsection 195(1). Information collected under this provision about a class of
people, and matched against social security information will be treated in
accordance with the Privacy Commissioner's guidelines.
38
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