Explanatory Statement
Social Security (Payment Pending—SSAT Application for Review) (DEWR) Guidelines 2007
Authority
Under subsection 146 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 a declaration under subsection 145(1) to continue social security payments to persons who are seeking review of a decision imposing a compliance penalty period.
The Social Security (Payment Pending—SSAT Application for Review) (DEWR) Guidelines 2007 (the 2007 Guidelines) are made under subsection 146 of the 1999 Act.
Purpose
The 2007 Guidelines revoke the Social Security (Payment Pending—SSAT Application for Review) Guidelines 2004 (2004 Guidelines) to the extent the 2004 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 (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 payments would otherwise be withheld for breaches of their obligation to seek work or participate in other activities under the 1991 Act. These guidelines allow payments to continue during a review under Division 3 of Part 4 of the 1999 Act by the Social Security Administration Tribunal (SSAT) 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 SSAT under subsection 142(1) or (2) 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 eight weeks imposed because of repeated or more serious failure will receive their usual payment while seeking a SSAT review of the penalty.
Subsection 6(2) of the 2007 Guidelines provides that if the application for review is withdrawn under section 171 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) will not apply if the compliance penalty period has been completed before the application for review to the SSAT 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 5 or 6 (as applicable) of the 2004 Guidelines continues to apply in relation to the Secretary’s power under section 145 of the Act as if section 6 of the 2004 Guidelines had not been revoked by the Social Security (Payment Pending – SSAT Application for Review) (DEWR) 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 – SSAT Application for Review) Guidelines 2004 – Revocation 2007 on the Federal Register of Legislative Instruments.
Overview
The Social Security (Payment Pending—SSAT Application for Review) (DEWR) Guidelines 2007 were enacted to address the issue of social security payments being withheld from individuals who are subject to an eight-week compliance penalty period due to repeated or more serious failures to comply with obligations under the Social Security Act 1991. This was enacted under subsection 146 of the Social Security (Administration) Act 1999, with the intent of ensuring that individuals continue to receive their usual payments while their case is being reviewed by the Social Security Administration Tribunal (SSAT). The guidelines were established by the Minister, revoking the 2004 Guidelines to reflect amendments made by the Employment and Workplace Relations Legislation (Welfare to Work and Other Measures) Act 2005 and the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Consequential Amendments Act 2006. The objective is to provide clarity and continuity in the administration of social security payments during the review process, ensuring that individuals are not unduly penalised during this period.
Scope and Application
The Social Security (Payment Pending—SSAT Application for Review) (DEWR) Guidelines 2007 apply to individuals who are in receipt of parenting payment, youth allowance, or newstart allowance and have had an adverse decision made regarding their eligibility for these payments, resulting in an eight-week compliance penalty period due to repeated or more serious failures under the Social Security Act 1991. The guidelines ensure that such individuals can continue to receive their payments while their case is under review by the Social Security Administration Tribunal (SSAT). These guidelines are established under subsection 146 of the Social Security (Administration) Act 1999 and are applicable across Australia, administered by the Department of Employment and Workplace Relations. Notably, the 2007 Guidelines revoke the previous 2004 Guidelines to the extent they relate to payments administered by the Department of Employment and Workplace Relations. They also take into account amendments to the Social Security Act 1991 made by the Employment and Workplace Relations Legislation (Welfare to Work and Other Measures) Act 2005 and the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Consequential Amendments Act 2006. The guidelines provide exceptions where the application for review is withdrawn or the compliance penalty period has been completed before the application is made.
Key Provisions
The main operative sections of the Social Security (Payment Pending—SSAT Application for Review) (DEWR) Guidelines 2007 (the 2007 Guidelines) are subsections 6(1), 6(2) and 6(3). Subsection 6(1) mandates that the Secretary of the Department of Employment and Workplace Relations must declare that a person in receipt of parenting payment, youth allowance, or newstart allowance will continue to receive their payment pending the determination of a review by the Social Security Administration Tribunal (SSAT). This is applicable if the person has had an adverse decision that results in an eight-week compliance penalty period due to repeated or more serious failure, as outlined in sections 500ZE, 551, or 629 of the Social Security Act 1991 (the 1991 Act), and has made an application for review to the SSAT under subsection 142(1) or (2) of the Social Security (Administration) Act 1999 (the 1999 Act). This ensures that the person will continue to receive their payment while the review is being processed.
The obligations and requirements imposed by the 2007 Guidelines on the parties or entities it governs are primarily centred around the continuation of social security payments. Specifically, the Secretary must declare that the person will continue to receive their payment pending the outcome of the SSAT review. This obligation is subject to certain conditions, such as the person not withdrawing their application for review under section 171 of the 1991 Act, as per subsection 6(2). Additionally, the compliance penalty period must not have been completed before the application for review is made, as stated in subsection 6(3). Furthermore, section 7 of the 2007 Guidelines ensures that certain savings provisions from the 2004 Guidelines continue to apply in relation to the Secretary’s power under section 145 of the 1999 Act.
In terms of offences, penalties, or consequences for breach, the 2007 Guidelines do not explicitly outline specific civil or criminal penalties for non-compliance. However, failure to adhere to the provisions could potentially result in the non-continuation of social security payments to the affected individuals, which could lead to financial hardship and other associated consequences. The primary focus of the 2007 Guidelines is to ensure that the affected individuals are not unduly penalised during the review process by the SSAT. The consequences of non-compliance would likely be addressed through administrative or judicial review processes, rather than through specific penalties outlined in the Guidelines themselves.