Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Act 2012

No. 51, 2012 as amended

Compilation start date: 26 May 2012

Includes amendments up to: Act No. 103, 2013

About this compilation

This compilation

This is a compilation of the Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Act 2012 as in force on 26 May 2012. It includes any commenced amendment affecting the legislation to that date.

This compilation was prepared on 24 September 2013.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of each amended provision.

Uncommenced amendments

The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in the endnotes.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If a provision of the compiled law is affected by a modification that is in force, details are included in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled law has expired or otherwise ceased to have effect in accordance with a provision of the law, details are included in the endnotes.

Contents

1 Short title 1

2 Commencement 1

3 Schedule(s) 2

Schedule 1—Work rule for disability support pension 3

Social Security Act 1991 3

Social Security (Administration) Act 1999 3

Schedule 2—Participation requirements for disability support pension 5

Social Security Act 1991 5

Schedule 3—Portability of disability support pension 9

Social Security Act 1991 9

Schedule 4—Average weekly earnings and other amendments 12

Part 1—Average weekly earnings 12

Division 1—Amendments commencing on Royal Assent 12

Child Support (Assessment) Act 1989 12

1 January 2013 13Division 2—Amendments commencing on

Child Support (Assessment) Act 1989 13

1 July 2013 16Division 3—Amendments commencing on

Child Support (Assessment) Act 1989 16

Part 2—Other amendments 18

Veterans’ Entitlements Act 1986 18

Endnotes 19

Endnote 1—About the endnotes 19

Endnote 2—Abbreviation key 21

Endnote 3—Legislation history 22

Endnote 4—Amendment history 23

Endnote 5—Uncommenced amendments [none] 24

Endnote 6—Modifications [none] 24

Endnote 7—Misdescribed amendments [none] 24

Endnote 8—Miscellaneous [none] 24

An Act to amend the law relating to social security, family assistance, child support and veterans’ entitlements, and for related purposes

1 Short title

This Act may be cited as the Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Act 2012.

2 Commencement 1

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information	Commencement information	Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	26 May 2012
2. Schedules 1, 2 and 3	1 July 2012.	1 July 2012
3. Schedule 4, Part 1, Division 1	The day this Act receives the Royal Assent.	26 May 2012
4. Schedule 4, Part 1, Division 2	1 January 2013.	1 January 2013
5. Schedule 4, Part 1, Division 3	1 July 2013.	1 July 2013
6. Schedule 4, item 25	The day this Act receives the Royal Assent.	26 May 2012
7. Schedule 4, item 26	Immediately after the commencement of item 15 of Schedule 3 to the Clean Energy (Household Assistance Amendments) Act 2011.	20 March 2013

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

2

Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Work rule for disability support pension

Social Security Act 1991

1 After Section 95

Insert:

96 Continuation of disability support pension 1

This section applies to a person if:

a

the person is receiving disability support pension; and

b

the person would, apart from this section, cease to be qualified for disability support pension because the person obtains paid work that is for:

i

at least 15 hours per week; and

ii

not more than 30 hours per week.

2

A person to whom this section applies continues to be qualified for disability support pension.

2 Paragraph 1035A(4)(b)

Omit “15”, substitute “30”.

3 Subparagraph 1035A(4)(e)(i)

Omit “15”, substitute “30”.

4 Paragraph 1061ZD(2)(b)

Omit “15”, substitute “30”.

Social Security (Administration) Act 1999

5 Paragraph 96(1)(a)

Omit “15”, substitute “30”.

6 Paragraph 97(1)(a)

Omit “15”, substitute “30”.

7 Paragraph 97A(2)(b)

Omit “15”, substitute “30”.

8 Transitional

If:

then:

a

before this item commences, the Secretary suspended a person’s disability support pension because the person obtained paid work that was for:

i

at least 15 hours per week; and

ii

not more than 30 hours per week; and

b

immediately before this item commences, the suspension is in effect;

c

(c) as soon as practicable after this item commences, the Secretary must, for the purposes of Social Security (Administration) Act 1999, reconsider the suspension; andsection 85 of the

d

(d) if, having regard to the Social Security Act 1991 as in force on 1 July 2012, the Secretary is satisfied that disability support pension is payable to the person—the Secretary must, under that section, determine that disability support pension is payable to the person; and

e

(e) Social Security (Administration) Act 1999 applies to any such determination.section 114 of the

Participation requirements for disability support pension

Social Security Act 1991

1 After paragraph 94(1)(d)

Insert:

the person meets any participation requirements that apply to the person under section 94A; and

da

in a case where the following apply:

i

the person is under 35 years of age;

ii

the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

iii

if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;

2 After section 94

Insert:

94A Participation requirements 1

The participation requirements are as follows:

a

the person must enter into a participation plan when the person is required by the Secretary under section 94B to do so;

b

if a participation plan is in force in relation to the person—the person must enter into another participation plan (instead of the existing one) if required by the Secretary under section 94B to do so;

c

while a participation plan is in force in relation to the person, the person must comply with the requirements in the plan.

2

However, this section does not apply to the person during a period when the person is covered by a participation exemption under section 94C, 94D, 94E or 94F.

94B Participation plans 1

If a participation plan is not in force in relation to the person, the Secretary may require the person to enter into a participation plan under this section.

2

If a participation plan is in force in relation to the person, the Secretary may require the person to enter into another participation plan instead of the existing one.

Notice of requirement

Suitable requirements

Approval of requirements

Optional terms

Form of plan

3

The Secretary is to give the person notice of:

a

the requirement; and

b

the place and time at which the participation plan is to be entered into.

4

(4) A participation plan that is in force in relation to a person must contain one or more terms (the requirements) that:

a

the person is required to comply with; and

b

the Secretary regards as suitable for the person.

5

The requirements in a plan are to be approved by the Secretary.

6

A participation plan may also contain one or more terms that the person may, but is not required to, comply with.

7

A participation plan must be in a form approved by the Secretary.

94C Illness or accident 1

A person is covered by a participation exemption if the Secretary is satisfied that the person is temporarily unable to meet the participation requirements because of illness or an accident.

2

The person is covered by the participation exemption for a period determined by the Secretary.

3

In deciding whether he or she is satisfied as mentioned in subsection (1), the Secretary may request the person to give the Secretary a certificate from a medical practitioner.

4

Subsection (3) does not limit subsection (1).

5

A determination under subsection (2) is not a legislative instrument.

94D Pre-natal and post-natal relief 1

A pregnant woman is covered by a participation exemption for the period that starts 6 weeks before the woman’s expected date of confinement and ends on the day on which the woman gives birth to the child (whether or not the child is born alive).

2

If a woman gives birth to a child (whether or not the child is born alive), the woman is covered by a participation exemption for the period that starts on the day on which she gives birth to the child and ends 6 weeks after that day.

94E Supported employment 1

A person is covered by a participation exemption for a period if:

a

the person is employed throughout the period; and

b

the work undertaken by the person in the course of that employment is for wages set in accordance with the program administered by the Commonwealth known as the supported wage system.

2

(2) A person is covered by a participation exemption for a period if the person is, throughout the period, in employment that is supported by supported employment services Disability Services Act 1986.within the meaning of section 7 of the

94F Special circumstances 1

A person is covered by a participation exemption for a period determined by the Secretary if:

a

the Secretary is satisfied that special circumstances, beyond the person’s control, exist; and

b

the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to meet the participation requirements for that period.

2

The period determined under subsection (1) must not exceed 13 weeks.

3

A determination under subsection (1) is not a legislative instrument.

3 Application

The amendments made by this Schedule apply for the purposes of working out a person’s qualification for disability support pension in respect of days occurring on or after 1 July 2012.

Portability of disability support pension

Social Security Act 1991

1 Paragraph 94(1)(ea)

Omit “either”, substitute “one of the following applies”.

2 Subparagraph 94(1)(ea)(i)

Omit “or”.

3 After subparagraph 94(1)(ea)(i)

Insert:

ia

the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

4 Paragraph 95(1)(d)

Omit “either”, substitute “one of the following applies”.

5 Subparagraph 95(1)(d)(i)

Omit “or”.

6 After subparagraph 95(1)(d)(i)

Insert:

ia

the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

7 Section 1212

Insert:

severely impaired disability support pensioner means a person in respect of whom the Secretary has made a determination under subsection 1218AAA(1).

8 Section 1217 (table item 2, column 5)

After “sections”, insert “1218AAA,”.

9 Section 1217 (after table item 2)

Insert:

10 Before section 1218AA

Insert:

1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner 1

(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

a

the person is receiving disability support pension;

b

the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));

c

the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

d

the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

2

The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:

a

the person is unable to return to Australia because of either of the following events:

i

a serious accident involving the person;

ii

the hospitalisation of the person; and

b

the person’s portability period for disability support pension had not ended at the time the event occurred.

3

The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.

4

A determination under subsection (1) is not a legislative instrument.

5

In this section:

work means work:

a

that is on wages that are at or above the relevant minimum wage; and

b

that exists in Australia, even if not within the person’s locally accessible labour market.

11 Section 1218AA (heading)

Repeal the heading, substitute:

1218AA Unlimited portability period for disability support pension—terminally ill overseas disability support pensioner 12 Subsection 1220B(1)

Omit “for a severely disabled person for whom an unlimited maximum portability period for the pension has been determined under section 1218AA”, substitute “for a person for whom an unlimited maximum portability period for the pension has been determined under section 1218AAA or 1218AA”.

13 Application 1

The amendments made by items 1 to 6 apply for the purposes of working out a person’s qualification for disability support pension in respect of days occurring on or after 1 July 2012.

2

The amendments made by items 7 to 12 apply in relation to periods of absence from Australia beginning on or after the commencement of those items.

Average weekly earnings and other amendments

Child Support (Assessment) Act 1989

1 Subsection 155(2A)

Repeal the subsection.

2 Transitional—publication of figures

Subsection 155(2) of the Child Support (Assessment) Act 1989 applies in relation to the calendar year ending on 31 December 2012 as if the amendments of:

made by Division 2 of this Part had already commenced.

a

section 5 of that Act; and

b

section 5A of that Act; and

c

subsection 155(2) of that Act;

3 Transitional—assessments for child support periods starting on or after 1 January 2013

The Child Support (Assessment) Act 1989 applies in relation to the making or amendment, before 1 January 2013, of an administrative assessment for a child support period starting on or after 1 January 2013 as if the amendments of that Act made by Division 2 of this Part had already commenced.

Child Support (Assessment) Act 1989

4 Subsection 5(1)

Insert:

relevant June quarter has the meaning given by subsection 5A(2).

5 Subsection 5(1) (definition of relevant September quarter)

Repeal the definition.

6 Subsection 5A(1)

Omit “September”, substitute “June”.

7 Subsection 5A(2)

Repeal the subsection, substitute:

2

(2) The relevant June quarter, in relation to a child support period, means the quarter ending on 30 June of the last calendar year ending before the child support period begins.

8 Paragraph 5A(5)(a)

Omit “September”, substitute “June”.

9 Section 45

Repeal the section, substitute:

45 Working out the self-support amount

A parent’s self-support amount for a day in a child support period is:

Note: A parent’s self-support amount can be varied by a determination or order under section 98S or 118.

10 Paragraph 58(4)(d)

Omit “September”, substitute “June”.

11 Subsection 58(5)

Omit “September”, substitute “June”.

12 Subsection 58D(2)

Omit “September”, substitute “June”.

13 Subparagraph 98S(1)(e)(i)

Omit “September”, substitute “June”.

14 Subparagraph 118(1)(e)(i)

Omit “September”, substitute “June”.

15 Paragraph 155(2)(a)

Omit “September”, substitute “June”.

16 Subparagraph 155(2)(b)(i)

Omit “September”, substitute “June”.

17 After subsection 155(2)

Insert:

2A

(2A) Before the end of each financial year, the Secretary must publish in the Gazette the AWE amount (within the meaning of subsection 58AA(1)) for the quarter ending on 31 December of that year.

18 Transitional—publication of figures

Subsection 155(2A) of the Child Support (Assessment) Act 1989 applies in relation to the financial year ending on 30 June 2013 as if the amendments of section 58AA of that Act made by Division 3 of this Part had already commenced.

19 Subclause 2(3) of Schedule 1

Omit “September”, substitute “June”.

20 Application of amendments

The amendments made by items 6 to 16 apply in relation to child support periods starting on or after the commencement of this Division.

21 Transitional—assessments for child support periods starting on or after 1 July 2013

The Child Support (Assessment) Act 1989 applies in relation to the making or amendment, before 1 July 2013, of an administrative assessment for a child support period starting on or after 1 July 2013 as if the amendments of that Act made by Division 3 of this Part had already commenced.

Child Support (Assessment) Act 1989

22 Subsection 58AA(1)

Repeal the subsection, substitute:

where:

AWE amount for a December quarter of a year of income means the amount published for the reference period in the quarter by the Australian Statistician in a document titled “Average Weekly Earnings, Australia” (or, if that title changes, in a replacement document) under the headings “Average Weekly Earnings—Trend—Persons—All employees total earnings” (or, if any of those headings change, under any replacement headings).

December quarter of a year of income means the quarter ending on 31 December of that year.

reference period in a December quarter of a year of income means the period described by the Australian Statistician as the last pay period ending on or before the third Friday of the middle month of the quarter.

tax return year means:

1

(1) The ATI indexation factor is:

a

if subsection 58(3) applies—the year of income before the last relevant year of income in relation to a child support period; or

b

if subsection 58(4) applies—the earlier year of income that applies under paragraph 58(4)(c).

23 Paragraph 58AA(3)(a)

Omit “September”, substitute “December”.

24 Application of amendments

The amendments made by this Division apply in relation to child support periods starting on or after the commencement of this Division.

Veterans’ Entitlements Act 1986

26 Paragraph 58A(6)(c)

Repeal the paragraph, substitute:

Endnotes

Endnote 1—About the endnotes

The endnotes provide details of the history of this legislation and its provisions. The following endnotes are included in each compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnote 5—Uncommenced amendments

Endnote 6—Modifications

Endnote 7—Misdescribed amendments

Endnote 8—Miscellaneous

If there is no information under a particular endnote, the word “none” will appear in square brackets after the endnote heading.

Abbreviation key—Endnote 2

The abbreviation key in this endnote sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended the compiled law. The information includes commencement information for amending laws and details of application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision level. It also includes information about any provisions that have expired or otherwise ceased to have effect in accordance with a provision of the compiled law.

Uncommenced amendments—Endnote 5

The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in endnote 5.

Modifications—Endnote 6

If the compiled law is affected by a modification that is in force, details of the modification are included in endnote 6.

Misdescribed amendments—Endnote 7

An amendment is a misdescribed amendment if the effect of the amendment cannot be incorporated into the text of the compilation. Any misdescribed amendment is included in endnote 7.

Miscellaneous—Endnote 8

Endnote 8 includes any additional information that may be helpful for a reader of the compilation.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnote 5—Uncommenced amendments [none]

Endnote 6—Modifications [none]

Endnote 7—Misdescribed amendments [none]

Endnote 8—Miscellaneous [none]

c

apart from this subsection, the portion of the instalment corresponding to that day would be more than a nil amount but less than 1/364 of the total of:

i

the minimum pension supplement amount, if an amount described in subparagraph (a)(i) was added as described in paragraph (a); and

ii

the clean energy supplement (if any) added as described in paragraph (a);

a

(a) Subsection 2(1) (item 13) of the Statute Law Revision Act 2013 provides as follows:

1

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.