EXPLANATORY STATEMENT
Social Security (Exempt Lump Sum – NSW Government Payments to Stolen Generations Survivors) Determination 2017
Summary
Under the social security law all income earned, derived or received for a person’s own use or benefit, is counted as income. The only exceptions are items specifically exempted under the social security law. Paragraph 8(11)(d) of the Social Security Act 1991 (the Act) allows the Secretary of the Department of Social Services (DSS) to determine that an amount or class of amounts received by a person is an exempt lump sum for the purposes of the Act. An exempt lump sum is not included in the definition of ‘ordinary income’ under subsection 8(1) of the Act, so any such amount would not be taken into account under the social security income test.
Background
On 23 June 2016, General Purpose Standing Committee No.3 released its Report on Reparations for the Stolen Generations in New South Wales: Unfinished Business.
It recommended that the NSW Government establish a reparations scheme and a funeral fund for Stolen Generations survivors found to have been removed by, committed to, or otherwise come into the care of the Aborigines Protection Board or Aborigines Welfare Board up until the Aborigines Protection Act 1909 was repealed on 20 March 1969, or who are otherwise deemed eligible under the Stolen Generations Reparations Scheme.
Subsequently the NSW Government has established the NSW Stolen Generations Reparations Scheme in response to that Report. The Scheme is administered by the NSW Department of Education, the Stolen Generations Reparations Scheme ‘Independent Assessor’ and the Minister for Aboriginal Affairs. The scheme provides a one-off lump sum payment of up to $75,000 to Stolen Generations survivors.
The NSW Stolen Generations Funeral Assistance Fund was established to provide a one-off lump sum payment of $7,000 made by the NSW Department of Education to contribute to funeral costs for Stolen Generations survivors who met eligibility criteria for Stolen Generations Reparations Scheme payment.
The Aboriginal Trust Fund Repayment Scheme was established to repay money to Aboriginal people (or their descendants) who had wages and other payments placed in trust funds that were administered by the former Aborigines Protection Board and Aborigines Welfare Board between approximately 1891 and 1969. These trust funds were primarily used for the wages of ward apprentices and family endowment payments. Aboriginal persons or family members registered with the scheme, who had wages or money placed in a trust fund which was never repaid, were able to claim and, if eligible, received a one off ex gratia repayment of $11,000 as part of the residual management of the Aboriginal Trust Fund Repayment Scheme.
Though the Aboriginal Trust Fund Repayment Scheme was operational until 2011, there are potentially a small number of trust accounts still held by Stolen Generations survivors that were not repaid when the Scheme was operational. The NSW Department of Education may, on a case by case basis as a component of the NSW Government’s Stolen Generations reparations initiatives, review these cases and, where appropriate, make an $11,000 repayment as part of the residual management of the Aboriginal Trust Fund Repayment Scheme.
This Determination provides that a payment made by the NSW Department of Education under the Stolen Generations Reparations Scheme, the Stolen Generations Funeral Assistance Fund or the Aboriginal Trust Fund Repayment Scheme is an exempt lump sum for the purposes of paragraph 8(11)(d) of the Act.
The effect of this Determination is that any such payment will not be regarded as income under the Act, so that if a social security recipient receives such a payment, it will be exempt from the social security income test.
Commencement
The Determination commences the day after this instrument is registered on the Federal Register of Legislation.
Consultation
This determination was made at the request of the NSW Department of Education. The Department of Veterans' Affairs and the Department of Agriculture and Water Resources have also been consulted.
This determination will be beneficial to persons affected as it exempts payments under the Stolen Generations Reparations Scheme, the Stolen Generations Funeral Assistance Fund or the Aboriginal Trust Fund Repayment Scheme from being assessed as income for social security purposes. As a result, public consultation was considered unnecessary.
Regulatory Impact Analysis
The Determination does not require a Regulatory Impact Statement. The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.
Explanation of Provisions
Section 1 of the Determination states the name of the Determination.
Section 2 provides that the Determination commences the day after this instrument is registered on the Federal Register of Legislation.
Section 3 provides that the authority for making this Determination is paragraph 8(11)(d) of the Social Security Act 1991.
Section 4 contains definitions of certain terms used in the Determination, including the definition of NSW Stolen Generations Reparations Scheme, Stolen Generations Funeral Assistance Fund and Aboriginal Trust Fund Repayment Scheme.
NSW Stolen Generations Reparations Scheme means a scheme operated and funded by the NSW Department of Education to provide a one-off ex gratia lump sum payment of up to $75,000 to Stolen Generations survivors found to have been removed by, committed to, or otherwise come into the care of the Aborigines Protection Board or Aborigines Welfare Board up until the Aborigines Protection Act 1909 was repealed on 20 March 1969.
Stolen Generations Funeral Assistance Fund means a fund to provide a one-off ex gratia lump sum payment of $7,000 made by the NSW Department of Education to contribute to funeral costs for Stolen Generations survivors found to have been removed by, committed to, or otherwise under the care of the Aborigines Protection Board or Aborigines Welfare Board up until the Aborigines Protection Act 1909 was repealed on 20 March 1969, or otherwise deemed eligible under the Stolen Generations Reparations Scheme.
Aboriginal Trust Fund Repayment Scheme means an ex gratia repayment of $11,000 made on a case by case basis as part of the residual management of the Aboriginal Trust Fund Repayment Scheme to eligible claimants who did not receive a repayment when the Scheme was operational during the period 2005 to 2011.
Section 5 specifies that a payment made to a person by the NSW Government under the Stolen Generations Reparations Scheme, the Stolen Generations Funeral Assistance Fund or the Aboriginal Trust Fund Repayment Scheme is an exempt lump sum for the purposes of paragraph 8(11)(d) of the Social Security Act 1991. Such an amount will be regarded as an exempt lump sum from the date the payment is received by the person.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Exempt Lump Sum – NSW Government Payments to Stolen Generations Survivors) Determination 2017
The Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The effect of the Determination is that a person who receives a NSW Government Payment to Stolen Generations Survivors will not have that payment assessed as income under the social security law.
Human rights implications
The Determination engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.
NSW Government Payments to Stolen Generations Survivors consist of payments under the Stolen Generations Reparations Scheme, the Stolen Generations Funeral Assistance Fund or the Aboriginal Trust Fund Repayment Scheme. The Determination will operate beneficially as a NSW Government Payment to Stolen Generations Survivors will not be taken into account when assessing a person’s eligibility for or rate of, social security entitlements under the social security income test. If the NSW Government Payment to Stolen Generations Survivors is not exempted, a person in receipt of that payment may not be eligible for a social security payment or, if they are eligible, their rate of payment might be reduced. The Determination is therefore consistent with the promotion of the right to social security.
The exemption of the NSW Government Payment to Stolen Generations Survivors from the income test on receipt does not alter the fact that any ongoing income generated by the lump sum is counted under the income test, and any assessable asset produced from the lump sum is counted under the social security assets test. This is consistent with the treatment of other lump sum payments exempted under paragraph 8(11)(d) of the Act.
Conclusion
The Determination supports a person’s human right to social security and is compatible with human rights as they do not raise any human rights issues.
Anita Davis, Acting Branch Manager, International and Means Test Policy Branch, as a delegate of the Secretary of the Department of Social Services.