EXPLANATORY STATEMENT
Social Security (Administration) (Declared relevant Northern Territory areas — Various) Determination 2009 (No. 5)
The Social Security (Administration) (Declared relevant Northern Territory areas — Various) Determination 2009 (No. 5) (the Determination) is made under subsections 123TE (1) and (10) of the Social Security (Administration) Act 1999 (the Act). The Minister for Families, Housing, Community Services and Indigenous Affairs, as well as making the Determination in her own capacity, is also making it on behalf of the Minister for Education and the Minister for Employment and Workplace Relations.
Background
On 21 June 2007, the Australian Government announced a number of measures in response to the national emergency confronting the welfare of Aboriginal children in the Northern Territory.
The income management measure has two primary aims:
(a) to stem the flow of cash that is expended on substance abuse and gambling; and
(b) to ensure that funds that are provided for the welfare of children are actually expended in this way.
Purpose
The purpose of the Determination is to revoke the following earlier determinations, made under subsection 123TE (1) of the Act:
- Social Security (Administration) (Declared relevant Northern Territory areas — Various (No. 20)) Determination 2008;
- Social Security (Administration) (Declared relevant Northern Territory areas — Various (No. 22)) Determination 2008.
The Determination also specifies that each area listed in the Schedule to the Determination (Schedule 1) is a ‘declared relevant Northern Territory area’ for the purposes of Part 3B of the Act. The areas listed in Schedule 1 are a more refined list of the areas (including their aliases) than were covered by the earlier Determinations.
The effect of the Determination is that, once an area is determined to be a ‘declared relevant Northern Territory area’ for the purposes of Part 3B of the Act, the income management regime (as set out in Part 3B of the Act) will apply to certain individuals within that area.
The Determination commences on 1 June 2009. The Determination will still have operative effect on the day on which it is expressed to expire. Subsection 123TE (2) of the Act provides that a determination made under subsection 123TE (1) of the Act must specify an expiry date for the determination, in accordance with subsection 123TE (3).
This Determination expires 364 days after the date the Minister made the Determination; that is, the date it was signed.
The Determination is a legislative instrument. However, section 42 of the Legislative Instruments Act 2003 (disallowance of legislative instruments) does not apply to the Determination (subsections 123TE (13) and (14) of the Act).
In deciding whether to make the Determination, the Minister has had regard to the matters specified in subsection 123TE (5) of the Act.
Consultation
Consultation on the Determination was undertaken with the Department of Education, Employment and Workplace Relations to ensure a co-ordinated approach in respect of welfare payments, for which that Department has responsibility, which may become subject to the income management regime.
Regulatory Impact Analysis
The Determination does not require a Regulatory Impact Statement or a Business Cost Calculator Figure. The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.
Overview
The Social Security (Administration) (Declared relevant Northern Territory areas — Various) Determination 2009 (No. 5) was enacted in response to a national emergency concerning the welfare of Aboriginal children in the Northern Territory. Made under subsections 123TE(1) and (10) of the Social Security (Administration) Act 1999, the Determination was crafted by the Minister for Families, Housing, Community Services and Indigenous Affairs, and also on behalf of the Minister for Education and the Minister for Employment and Workplace Relations. Its primary purpose is to replace earlier determinations by specifying more refined areas within the Northern Territory that fall under the 'declared relevant Northern Territory area' category for the purposes of the income management regime in Part 3B of the Act. This regime aims to curb substance abuse and gambling among beneficiaries and ensure that welfare funds are used for the benefit of children. The Determination came into effect on 1 June 2009 and will expire 364 days after its enactment, in line with the requirements set out in subsection 123TE(2) of the Act. Notably, this legislative instrument is exempt from the disallowance provisions of the Legislative Instruments Act 2003, as stipulated in subsections 123TE(13) and (14) of the Act.
Scope and Application
The Social Security (Administration) (Declared relevant Northern Territory areas — Various) Determination 2009 (No. 5) applies to individuals residing in specified areas within the Northern Territory, which are designated as 'declared relevant Northern Territory areas' for the purposes of Part 3B of the Social Security (Administration) Act 1999. This Determination is made under subsections 123TE(1) and (10) of the Act by the Minister for Families, Housing, Community Services and Indigenous Affairs, and also on behalf of the Minister for Education and the Minister for Employment and Workplace Relations. The primary aim of this legislation is to refine the geographic scope of areas subject to the income management regime, which is intended to prevent the misuse of welfare funds on substances and gambling, and ensure that such funds are used for the welfare of children. This Determination revokes earlier determinations and specifies a more detailed list of areas covered, thereby extending the application of the income management provisions to these newly listed areas. The Determination is not subject to disallowance under the Legislative Instruments Act 2003, and it specifies an expiry date in accordance with the Act. The regulatory impact of this Determination is minimal, with no significant business costs or competition implications.
Key Provisions
The key operative sections of the Social Security (Administration) (Declared relevant Northern Territory areas — Various) Determination 2009 (No. 5) (sections 1-7) revoke previous determinations and specify that certain areas in the Northern Territory are now 'declared relevant Northern Territory areas' for the purposes of Part 3B of the Social Security (Administration) Act 1999. These sections effectively redraw the boundaries of the areas affected by the income management regime. Section 8 details the commencement and expiry of the Determination, which starts on 1 June 2009 and expires 364 days after the date it was signed. The areas listed in Schedule 1 are now subject to the income management provisions, which aim to control the use of social security payments for substances such as alcohol and tobacco and ensure that payments are used for the welfare of children.
The obligations imposed by the Determination on the parties it governs include ensuring that individuals residing in the declared areas comply with the income management provisions. These provisions require that a portion of the social security payments of individuals in these areas be placed in a Special Account, which can only be used for specific authorised purposes such as food, rent, and other necessities. The individuals must adhere to these conditions to receive their payments. The Department of Families, Housing, Community Services and Indigenous Affairs, along with other relevant departments, must administer and enforce these provisions.
There are no specific offences, penalties, or civil/criminal consequences outlined within the Determination itself. However, breaches of the income management provisions under Part 3B of the Social Security (Administration) Act 1999 could result in civil penalties. For example, under section 123TF of the Act, an individual who contravenes an income management direction may be subject to a civil penalty of up to $1,300 for an individual offence and $6,500 for a body corporate offence. Additionally, individuals who fail to comply with the income management requirements may face suspension or termination of their social security payments. These consequences are governed by the overarching Act rather than the Determination itself.