EXPLANATORY STATEMENT
Social Security (Administration) (Declared relevant Northern Territory areas — Various) Determination 2009 (No. 8)
The Social Security (Administration) (Declared relevant Northern Territory areas — Various) Determination 2009 (No. 8) (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 Social Security (Administration) (Declared relevant Northern Territory areas — Various (No. 29)) Determination 2008, made under subsection 123TE (1) of the Act.
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 28 August 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. 8) was enacted to address the urgent welfare concerns of Aboriginal children in the Northern Territory. Made under subsections 123TE(1) and (10) of the Social Security (Administration) Act 1999, the Determination was introduced in response to the national emergency declared on 21 June 2007. Its primary objective is to implement an income management regime to stem the flow of cash used for substance abuse and gambling, while ensuring that welfare funds are used for the benefit of children. The Minister for Families, Housing, Community Services and Indigenous Affairs, along with the Ministers for Education and Employment and Workplace Relations, made the Determination to refine the list of relevant areas, thereby specifying the geographical scope where the income management regime applies. The Determination revokes the 2008 Determination and specifies new areas in Schedule 1, which will be subject to the income management provisions once declared. The Determination commenced on 28 August 2009 and will expire 364 days after its signing date. Importantly, it is exempt from the disallowance provisions under the Legislative Instruments Act 2003.
Scope and Application
The Social Security (Administration) (Declared relevant Northern Territory areas — Various) Determination 2009 (No. 8) is an instrument made under the Social Security (Administration) Act 1999 and applies specifically to certain individuals within declared areas of the Northern Territory. The primary purpose of this Determination is to refine and update the list of areas that are subject to the income management regime, ensuring that the measures designed to address substance abuse and gambling, and to protect the welfare of children, are effectively targeted. These areas, listed in Schedule 1, are identified as ‘declared relevant Northern Territory areas’ for the purposes of Part 3B of the Act, thereby triggering the application of the income management provisions to eligible individuals residing in these areas. The Determination revokes the previous 2008 Determination, thereby clarifying and updating the scope of areas covered. It is noteworthy that this instrument is legislative in nature and exempt from the disallowance provisions under the Legislative Instruments Act 2003. The Determination came into effect on 28 August 2009, and it is set to expire 364 days after the date it was signed, in accordance with the Act's requirements for specifying an expiry date.
Key Provisions
The Social Security (Administration) (Declared relevant Northern Territory areas — Various) Determination 2009 (No. 8) (sections 123TE(1) and (10) of the Social Security (Administration) Act 1999) outlines the Minister’s intention to declare specific areas in the Northern Territory as ‘declared relevant Northern Territory areas’ for the purposes of the income management regime under Part 3B of the Act. These areas are listed in Schedule 1 of the Determination. Once declared, the income management measures will apply to certain individuals residing in these areas. The Determination revokes the earlier Social Security (Administration) (Declared relevant Northern Territory areas — Various (No. 29)) Determination 2008 and comes into effect on 28 August 2009, expiring 364 days after the Minister’s signature date.
Under this Determination, the obligations of relevant parties include compliance with the specified income management measures. For instance, individuals in declared areas must adhere to the restrictions on the use of certain welfare payments, particularly to prevent the funds from being used for substances or gambling. The Department of Education, Employment and Workplace Relations must also coordinate with the Minister to ensure that welfare payments are managed according to the new Determination. The Act imposes these obligations to ensure that funds intended for the welfare of children are not misused.
Breaches of the income management measures specified in the Determination may result in various consequences. While the Determination itself does not specify detailed penalties, breaches of the underlying Social Security (Administration) Act 1999 could lead to fines or imprisonment. For instance, misuse of welfare payments could result in criminal penalties under section 123TF of the Act, which could include fines of up to $22,200 or imprisonment for up to five years, or both. Civil consequences might also include recovery of misused funds or other financial penalties.