Alternative Law Journal
by Peter Sutherland with Allan Anforth; Federation Press and Welfare Rights and Legal Centre, Sydney, 2001; 962 pp; $88 paperback.
Recent developments in Common wealth 'welfare' policy serve to remind us that social security law is an extremely significant area of legal scholarship and practice. It is a field of law that is concerned with the continuing role of the state in safeguarding the welfare of people excluded from the labour market. The Commonwealth Government has endeavoured to focus the public's attention on welfare 'dependency' and social security fraud. This emphasis represents an attempt to blame individuals for their poverty, and to suggest that the function of law in this context is not to create a right or entitlement to assistance for those most in need of it, but to impose obligations on those who, apparently begrudgingly, the state supports. Numerous concerns have been raised about this approach, most recently by the Report of the Independent Review of Breaches and Penalties in the Social Security System (2002). The Report, commissioned by a number of social service organisations, noted that the emphasis on enforcing compliance by social security recipients operated on occasions in an arbitrary, unfair or excessively harsh manner. The Independent Review concluded that the system would do well to focus on fairness as much as it does on efficiency and effectiveness.
The publication of Social Security and Family Assistance Law confirms that there is more to this area of law and legal practice than compliance and 'breaching' -a term used to describe prosecution of social security recipients for failure to satisfy conditions of assistance. However, those for whom the title of this book has created expectations of a discussion of recent legal and policy developments will be disappointed. This is not to detract from the quality of the text, which is in fact an annotated compendium of Common wealth social security legislation.
Social Security and Family Assistance Law replaces Annotations to the Social Security Act 1991 (the Annotated Act), of which successive editions were published between 1992 and 1998. Altogether, the Annotated Act has been in print since 1947, and in that time it has been an invaluable service to practitioners and scholars in the field. This most recent edition contains two main sections organised around the statutes addressed in the book. Included in the first section, under the heading of Social Security Law, is the new structure of social security legislation implemented in March and July 2000: the Social Security Act 1991 (the 1991 Act); the Social Security (Administration) Act 1999 (the SS Administration Act); and the Social Security (International Agreements) Act 1999 (the SS International Agreements Act). The 1991 Act continues to regulate eligibility for pensions, benefits and allowances, the student financial supplement scheme, payability and rates of payments, and overpayments and debt recovery. The SS Administration Act consolidated the administration provisions of the 1991 Act, removing duplications from the 1991 Act as well as reducing its size. The SS Administration Act forms part of the Social Security Law·: and deals with administration, claims, determinations, manner of payment, start days, review of decisions, information gathering and confidentiality, and offences. The SS International Agreements Act removed the international agreement provisions from the 1991 Act. It governs adoption of new Agreements, and changes to existing Agreements.
The second section contains the legislative framework relevant to the transfer of various family assistance payments from the 1991 Act as part of the GST reform package (the Family Assistance Law): the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act); the A New Tax System (Family Assistance)(Administration) Act 1999 (the FA Administration Act); and the A New Tax System (Family Assistance and Related Measures) Act 2000 (the FA Related Measures Act). These three statutes came into effect on 1 July 2001. The Family Assistance Act deals with eligibility for family tax benefit, maternity allowance, maternity immunisation allowance and child care benefit. It also contains the rates for each of these categories of family assistance. The FA Administration Act covers payment of assistance, overpayments and debt recovery, review of decisions, information, liability of corporations, employers and principals for offences, and approval of child care services and registered carers as well as obligations of approved child care services. The FA Related Measures Act is brief and contains transitional provisions.
Annotations in the form of commentary and materials are provided for each section of each Act. The materials include discussions of relevant case law and its interpretation of contentious wording, and where relevant, legislative history. In addition to developments in debt and compensation recovery, the book addresses other significant areas of practice such as application of the activity test. It also includes some early decisions on new provisions such as the Child Disability Assessment Tool, the Job Network, and the youth allowance actual means test. The cases referred to in the annotations are up to date as of 1 May 2001.
The book is therefore a most useful update for practitioners, providing a means by which both social security legislation and its interpretation can be quickly accessed. In this function it is enhanced by the inclusion of a subject matter index, table of cases, table of statutes and amendment histories of each of the five Acts annotated in the book. It will also be helpful for academics as a source of references facilitating further research.
Finally, the publication of this most recent annotation of social security legislation highlights the need for a complementary text discussing developments in law, policy and theory in this area over the last decade. Not since the publication of Carney and Hanks' Social Security in Australia (Oxford University Press, Melbourne, 1994) have those interested in this area of law been availed of a book of this nature. Social Security and Family Assistance Law deserves such a partner.
John Howe teaches law at Monash University