Explanatory Statement
Social Security (Payment Pending—ARO Application for Review) (DEWR) Guidelines 2007
Authority
Under section 132 of the Social Security (Administration) Act 1999 (the 1999 Act), the Minister may, by determination in writing, set guidelines for the exercise of the Secretary’s power to make declarations under subsection 131 to continue social security payments to persons who are seeking review of a decision imposing a compliance penalty period.
The Social Security (Payment Pending—ARO Application for Review) (DEWR) Guidelines 2007 (the 2007 Guidelines) are made under subsection 132 of the 1999 Act.
Purpose
The 2007 Guidelines revoke the Social Security (Payment Pending—ARO Application for Review) Guidelines 2004 (the 2004 Guidelines) to the extent the 2007 Guidelines deal with social security payments administered by the Department of Employment and Workplace Relations. The 2007 Guidelines come into effect on the day after registration on the Federal Register of Legislative Instruments and take into account the amendments of the Social Security Act 1991 (the 1991 Act) made by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (the 2005 Act) and the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Consequential Amendments Act 2006.
Explanation
The 2007 Guidelines deal with the continuation of certain social security payments to persons who are subject to an eight week compliance penalty period, a period during which the payments would otherwise be withheld for breaches of their obligation to seek work or participate in other activities under the 1991 Act. The 2007 Guidelines allow payments to continue until a review under section 135 of the 1991 Act is carried out by the Secretary, the Centrelink Chief Executive Officer (CEO) or an authorised review officer (ARO) of the adverse decision that gave rise to the compliance penalty period.
Subsection 6(1) of the 2007 Guidelines provides, subject to subsections 6(2) and (3), that, in the case of a person in receipt of parenting payment, youth allowance or newstart allowance, who
- has had an adverse decision made that results in a compliance penalty period of eight weeks because of repeated or more serious failure, as set out in sections 500ZE, 551 or 629 of the 1991 Act, and
- makes an application for review to the Secretary under section 129 of the 1999 Act,
the Secretary must declare that the person is to continue to receive that payment or allowance pending the determination of the review, as if the adverse decision had not been made.
This ensures that all persons who have had the mandatory compliance penalty period of 8 weeks imposed because of repeated or more serious failure will receive their usual payment while seeking a review of the penalty.
Subsection 6(2) of the 2007 Guidelines provides that if the application for review is withdrawn under section 130 of the 1991 Act then subsection 6(1) ceases to apply (that is the compliance penalty period will be reinstated).
Subsection 6(3) of the 2007 Guidelines provides that subsection 6(1) of the 2007 Guidelines will not apply if the compliance penalty period has been completed before the application for review to the Secretary is made.
Section 7 of the 2007 Guidelines is a savings provision that is made necessary by savings provisions in the 2005 Act which preserve certain activity test non-payment periods (non-payment periods now subsumed under the term “compliance penalty period”). Section 7 provides that section 6 or 7 (as applicable) of the 2004 Guidelines continues to apply in relation to the Secretary’s power under section 131 of the Act as if section 6 or 7 of the 2004 Guidelines had not been revoked by the Social Security (Payment Pending – ARO Application for Review) Guidelines 2004 (Revocation) 2007.
The 2007 Guidelines are a legislative instrument.
Consultation regarding this instrument was undertaken with the Department of Families and Community Services and Indigenous Affairs and the Department of Education, Science and Training. The 2007 Guidelines do not affect business or competition.
Commencement
The 2007 Guidelines come into effect immediately after the registration of the Social Security (Payment Pending – ARO Application for Review) Guidelines 2004 – Revocation 2007 on the Federal Register of Legislative Instruments.
Overview
The Social Security (Payment Pending—ARO Application for Review) (DEWR) Guidelines 2007 were introduced by the Minister for Employment and Workplace Relations under section 132 of the Social Security (Administration) Act 1999. The purpose of these guidelines is to ensure that social security payments continue to individuals who have applied for a review of a decision that imposed an eight-week compliance penalty period. This gap was addressed to provide a mechanism for maintaining payments during the review process, thus supporting individuals who may be vulnerable due to administrative errors or more serious breaches in compliance. The guidelines revoke the previous Social Security (Payment Pending—ARO Application for Review) Guidelines 2004 to the extent that they dealt with payments administered by the Department of Employment and Workplace Relations, taking into account relevant legislative amendments. These guidelines aim to maintain the continuity of social security payments, ensuring that applicants are not unduly penalised during the review process.
Scope and Application
The Social Security (Payment Pending—ARO Application for Review) (DEWR) Guidelines 2007 apply to individuals who are recipients of parenting payment, youth allowance, or newstart allowance under the Social Security Act 1991, and who have been subjected to an eight-week compliance penalty period due to repeated or more serious breaches of their obligation to seek work or participate in other activities. The guidelines are made under section 132 of the Social Security (Administration) Act 1999 and serve to ensure that these individuals can continue to receive their payments pending a review of the adverse decision that imposed the penalty period. This ensures that the mandatory eight-week compliance penalty period does not prevent these individuals from receiving necessary support during the review process. The guidelines revoke the previous Social Security (Payment Pending—ARO Application for Review) Guidelines 2004 to the extent they deal with social security payments administered by the Department of Employment and Workplace Relations. They come into effect immediately after the registration of the Social Security (Payment Pending – ARO Application for Review) Guidelines 2004 – Revocation 2007 on the Federal Register of Legislative Instruments.
Key Provisions
The main sections of the Social Security (Payment Pending—ARO Application for Review) (DEWR) Guidelines 2007 (the 2007 Guidelines) address the continuation of certain social security payments for individuals facing an eight-week compliance penalty period. Under subsection 6(1), the Secretary must declare that a person in receipt of parenting payment, youth allowance, or newstart allowance, who has an adverse decision resulting in an eight-week compliance penalty period due to repeated or more serious failure, will continue to receive their payment while awaiting the outcome of a review application. This provision ensures that individuals do not face payment interruptions while they seek a review of the adverse decision. However, subsection 6(2) stipulates that if the review application is withdrawn, the payment continuation will cease, and the compliance penalty period will be reinstated. Additionally, subsection 6(3) states that the continuation of payments will not apply if the compliance penalty period is completed before the review application is made.
The obligations imposed by the 2007 Guidelines primarily fall on the Secretary, who must declare the continuation of payments as per subsection 6(1) for eligible applicants. The Secretary is also required to monitor the status of review applications to ensure compliance with the conditions outlined in subsections 6(2) and 6(3). The Centrelink Chief Executive Officer (CEO) and authorised review officers (ARO) are tasked with conducting the reviews as per section 135 of the Social Security Act 1991. The guidelines further require the Secretary to comply with any savings provisions that might still apply under the previous 2004 Guidelines, as detailed in section 7.
Failure to comply with the provisions of the 2007 Guidelines can result in legal consequences. If the Secretary does not appropriately declare the continuation of payments for eligible applicants, or if the conditions outlined in subsections 6(2) and 6(3) are not enforced correctly, this could lead to unjust withholding of payments. While the explanatory statement does not explicitly detail maximum penalties for non-compliance, breaches of such guidelines could result in administrative penalties or legal action for the Secretary, potentially impacting their ability to exercise their powers under the Social Security (Administration) Act 1999. The consequences for individuals who do not adhere to the review process as stipulated in the guidelines might include the reinstatement of compliance penalty periods.