Commonwealth Consolidated Acts Commonwealth Consolidated Acts
1 Correspondence of pensions, benefits and allowances
(1) Subject to paragraph (2)(k), for the purposes of this Schedule, a pension, benefit or allowance under this Act and a pension, benefit or allowance under the 1947 Act that have the same name correspond to each other.
(2) For the purposes of this Schedule:
(a) a wife's pension under the 1947 Act and a wife pension under this Act correspond to each other; and
(b) a carer's pension under the 1947 Act and a carer pension under this Act correspond to each other; and
(c) a sole parent's pension under the 1947 Act and a sole parent pension under this Act correspond to each other; and
(e) a class B widow's pension under the 1947 Act and a widow B pension under this Act correspond to each other; and
(f) an age pension under the 1947 Act payable because of section 26 of that Act and a special needs age pension under this Act correspond to each other; and
(g) an invalid pension under the 1947 Act payable because of section 29 of that Act and a special needs invalid pension under this Act correspond to each other; and
(h) a wife's pension under the 1947 Act payable because of subsection 37(2) of that Act and a special needs wife pension under this Act correspond to each other; and
(i) a sole parent's pension under the 1947 Act payable because of subsection 46(1) of that Act and a special needs sole parent pension under this Act correspond to each other; and
(j) a class B widow's pension under the 1947 Act payable because of subclause 4(1) of Schedule 1B to that Act and a special needs widow B pension under this Act correspond to each other; and
(k) a job search allowance under the 1947 Act and a job search allowance under this Act in respect of a person who has not turned 18 correspond to each other; and
(l) an unemployment benefit under the 1947 Act in respect of a person who has not been in receipt of an old benefit or old benefits for longer than 12 months and a job search allowance under this Act correspond to each other; and
(m) an unemployment benefit under the 1947 Act in respect of a person who has been in receipt of an old benefit or old benefits for longer than 12 months and a newstart allowance under this Act correspond to each other; and
(n) a widowed person allowance under the 1947 Act and a bereavement allowance under this Act correspond to each other.
(3) In paragraphs (2)(l) and (m):
"old benefit" , in relation to a person, means:
(a) an unemployment benefit under the 1947 Act; or
(b) a job search allowance under the 1947 Act; or
(c) in the case of a person who, but for the abolition of the allowance formerly paid by the Department of Employment, Education and Training and known as the Formal Training Allowance, would have paid that allowance on 1 July 1991--that allowance.
2 Correspondence of provisions
(1) If one provision of the 1947 Act and one provision of this Act have the same legal effect, the 2 provisions correspond to each other.
(2) If:
(a) one provision of the 1947 Act has a particular legal effect in relation to a number of payment types; and
(b) a provision of this Act has that legal effect in relation to only one of those payment types;
the provisions correspond to each other for the purposes of applying this Schedule to that payment type.
(3) In this clause:
"legal effect" includes conferring the power to issue an instrument.
"payment type" means a pension, benefit or allowance.
2A References in other Acts and instruments to provisions of the 1947 Act
A reference in:
(a) a provision of a law of the Commonwealth or a Territory enacted before 1 July 1991 (whether or not the provision has come into operation); or
(b) an instrument or document;
to a provision of the 1947 Act is to be construed as a reference to the corresponding provision of the 1991 Act.
Division 4 -- Continuation of earlier savings provisions
28 Rent assistance--retirement village residents (changes introduced on 13 June 1989)
(1) If:
(a) immediately before 3 November 1988:
(i) a person was receiving a social security pension, social security benefit or family allowance supplement; and
(ii) the person's pension, benefit or allowance rate included an amount by way of rent assistance under the 1947 Act; and
(b) at all times since 3 November 1988:
(i) the person has been entitled to a social security pension, social security benefit or family allowance supplement; and
(ii) the person's principal home has been in a retirement village;
the person is to be taken not to be an ineligible homeowner or excluded homeowner for the purposes of this Act.
(2) If:
(a) immediately after 13 June 1989:
(i) a person was receiving a service pension; and
(ii) the person's pension rate included an amount by way of rent assistance because of the operation of subsection 31(1) of the Social Security and Veterans' Affairs Legislation Amendment Act 1988 ; and
(b) after 13 June 1989, the person began to receive a social security pension, social security benefit or family allowance supplement under the 1947 Act or this Act; and
(c) subsection 31(1) of the Social Security and Veterans' Affairs Legislation Amendment Act 1988 applied to the person at all times between 13 June 1989 and the person's commencing to receive the social security pension, social security benefit or family allowance supplement or would have applied to the person at all those times if the subsection had not been repealed; and
(d) at all times since the person commenced to receive the social security pension, social security benefit or family allowance supplement:
(i) the person has continued to receive a social security pension, social security benefit or family allowance supplement; and
(ii) the person's principal home has continued to be in the retirement village;
the person is to be taken not to be an ineligible homeowner or excluded homeowner for the purposes of this Act.
(3) If subclause (1) or (2) ceases to apply to the person, that subclause does not apply to the person again.
(4) If a person is entitled to rent assistance because of subclause (1) or (2), any amount that would (apart from this subclause) be payable to the person by way of rent assistance is to be reduced by the sum of the increases in the amount of the maximum fortnightly rate of any of the following payments to the person after 19 March 1996 (whether or not the type or amount of payment payable to the person varies after that day because the person's circumstances change):
(a) a social security benefit;
(b) a social security pension;
(c) family payment under this Act as previously in force;
(ca) family allowance;
(d) non - benefit parenting allowance;
(e) child disability allowance;
(ea) carer allowance;
(f) double orphan pension;
(g) mobility allowance;
(h) youth training allowance.
(5) Subclause (4) does not apply if:
(a) the person is entitled to rent assistance because of subclause (1) or (2); and
(b) the amount of rent assistance payable is worked out under clause 63.
(6) This clause ceases to apply (and cannot re - apply later) to a person if, as a result of the reduction required by subclause (4), no amount would be payable to the person by way of rent assistance.
Part 3 -- Saving and Transitional Provisions Applicable after the Commencement of this Act
36 Incentive allowance (changes introduced on 12 November 1991)
(1) If:
(a) a person is qualified for incentive allowance immediately before 12 November 1991; and
(b) the person is receiving disability support pension on 12 November 1991 because of a determination referred to in clause 33;
the following provisions as in force immediately before 12 November 1991 continue to apply to the person:
(c) points 1064 - J1 to 1064 - J3 (Pension Rate Calculator A); and
(d) points 1065 - F1 to 1065 - F3 (Pension Rate Calculator B).
(2) If:
(a) a person was receiving incentive allowance immediately before 12 November 1991; and
(b) on or after 12 November 1991 the person ceases to be qualified for incentive allowance because the person undertakes vocational training or a rehabilitation program or obtains work; and
(c) within 2 years after so ceasing to be qualified, the person undertakes an activity that would have qualified him or her for incentive allowance had it been undertaken immediately before 12 November 1991;
the following provisions as in force immediately before 12 November 1991 apply to the person:
(d) points 1064 - J1 to 1064 - J3 (Pension Rate Calculator A); and
(e) points 1065 - F1 to 1065 - F3 (Pension Rate Calculator B).
(3) If a person's rate of disability support pension includes an amount for incentive allowance because of subclause (1) or (2) the person's rate of disability support pension cannot include an amount for rent assistance.
(4) A person whose rate of disability support pension includes an amount for incentive allowance because of subclause (1) or (2) may elect, by written notice to the Secretary, to have the amount for incentive allowance excluded from the person's rate.
(4A) If:
(a) a person is a member of a couple; and
(b) the person's partner is living with the person in their home; and
(c) the person's partner's rate of disability support pension includes an amount for incentive allowance because of subclause (1) or (2);
the person's rate of disability support pension cannot include an amount for rent assistance.
(5) If a person referred to in subclause (1) ceases to be qualified for incentive allowance on or after 12 November 1991, subclause (1) ceases to apply to the person and cannot apply to the person again.
63 Rent assistance (changes introduced on 20 March 1993)
(1) This clause applies to a person if:
(a) immediately before 20 March 1993:
(i) the person was receiving a social security pension, a social security benefit or additional family payment; and
(ii) the person's pension, benefit or payment rate included an amount by way of rent assistance; and
(b) this subclause has continued to apply to the person.
(2) If:
(a) a decision is made on or after 20 March 1993 that a person is entitled to rent assistance in respect of a period; and
(b) the period starts before 20 March 1993; and
(c) the period continued until at least 19 March 1993;
the person is taken, for the purposes of this clause, to have been receiving rent assistance under this Act immediately before 20 March 1993.
(3) This clause applies to a person if:
(a) immediately before 20 March 1993, the person was receiving rent assistance under or because of the Veterans' Entitlements Act; and
(b) after that date, the person becomes entitled to be paid a social security pension, a social security benefit or additional family payment; and
(c) this subclause has continued to apply to the person.
(3A) Subject to subclauses (7), (8) and (9), if this clause applies to a person, the amount by way of rent assistance to be used to calculate the person's pension, benefit or payment rate is the amount (the floor amount ) worked out using the formula:
where:
"preserved rent assistance" is the amount worked out under subclause (4).
"post-1995 increase" is the sum of the increases in the amount of the maximum fortnightly rate of any of the following payments to the person after 19 March 1996 or the later day (the application day ) this clause first applied to the person (whether or not the type or amount of payment payable to the person varies after 19 March 1996 or the application day because the person's circumstances change):
(a) a social security benefit;
(b) a social security pension;
(c) family payment under this Act as previously in force;
(ca) family allowance;
(d) non - benefit parenting allowance;
(e) child disability allowance;
(ea) carer allowance;
(f) double orphan pension;
(g) mobility allowance;
(h) youth training allowance.
(4) For the purposes of subclause (3A), the preserved rent assistance is the amount by way of rent assistance that would be included in the person's pension, benefit or payment rate if:
(a) the person's pension, benefit or payment rate were neither income reduced nor assets reduced; and
(b) the amount by way of rent assistance were calculated under this Act as in force immediately before 20 March 1993.
(5) Subject to subclause (6), subclause (1) or (3) ceases to apply to a person if:
(a) the person ceases to receive a social security pension, social security benefit or additional family payment; or
(b) the person ceases to be qualified for rent assistance; or
(c) the Secretary considers that there is a significant change in the person's circumstances that would affect the amount of rent assistance that is payable to the person apart from this clause; or
(d) the amount of rent assistance that would be payable to the person if this clause applied is less than (or equal to) the amount of rent assistance that would otherwise be payable.
(6) If:
(a) subclause (1) or (3) ceases to apply to a person; and
(b) within 42 days, or such longer period as the Secretary determines, of that subclause ceasing to apply to the person, there is a change in the person's circumstances; and
(c) the Secretary considers that the change in the person's circumstances is so significant that subclause (1) or (3) should apply to the person;
the Secretary may determine that subclause (1) or (3) is to apply to the person from a specified date.
(7) If:
(a) subclause (1) or (3) applies to a person; and
(b) the person becomes a member of a couple; and
(c) the person's partner is a person to whom subclause (1) or (3) applies;
the amount by way of rent assistance to be used to calculate the person's pension, benefit or payment rate and the amount by way of rent assistance to be used to calculate the person's partner's pension, benefit or payment rate is not to fall below one - half of the person's floor amount or one - half of the person's partner's floor amount, whichever is the greater.
(8) If:
(a) subclause (1) or (3) applies to a person; and
(b) the person becomes a member of a couple; and
(c) the person's partner is a person to whom section 111 of the Veterans' Affairs Legislation Amendment Act (No. 2) 1992 applies or would apply if it had not been repealed;
the amount by way of rent assistance to be used to calculate the person's pension, benefit or payment rate is not to fall below one - half of the person's floor amount or one - half of the person's partner's floor amount, whichever is the greater.
(9) If:
(a) subclause (1) or (3) applies to a person; and
(b) the person becomes a member of a couple; and
(c) the person's partner is not a person to whom subclause (1) or (3) applies; and
(d) the person's partner is not a person to whom section 111 of the Veterans' Affairs Legislation Amendment Act (No. 2) 1992 applies or would apply if it had not been repealed; and
(e) the person's partner is a person who is receiving a pension, benefit or additional family payment or a pension under Part III of the Veterans' Entitlements Act 1986 ;
the amount by way of rent assistance to be used to calculate the person's pension, benefit or additional family payment rate and the amount by way of rent assistance to be used to calculate the rate of the person's partner's pension, benefit or additional family payment is not to fall below the person's floor amount.
(10) If:
(a) a person is receiving a social security pension or a social security benefit; and
(b) neither subclause (1) nor (3) applies to the person; and
(c) the person has become or becomes a member of a couple; and
(d) the person's partner is receiving a pension under the Veterans' Entitlements Act 1986 and is a person to whom clause 5 of Schedule 5 to that Act applies;
the amount by way of rent assistance to be used to calculate the rate of the person's social security pension or social security benefit is not to fall below one - half of the amount that would be the person's partner's floor amount if subclause (1) or (3) applied to the partner.
74 Partner allowance for persons born on or before 1 July 1955 (changes made on 1 July 1995)
(1) If:
(a) a person was receiving partner allowance immediately before 1 July 1995; and
(b) the person was born on or before 1 July 1955;
the person need not satisfy paragraph 771HA(1)(h) in order to be qualified for partner allowance.
(2) If partner allowance ceases to be payable to a person referred to in subclause (1):
(a) that subclause ceases to apply to the person; and
(b) cannot apply to the person again.
86 Transitional and saving provisions applicable to the amendments relating to the pension loans scheme
(1) If:
(a) a person has made a request to participate in the previous pension loans scheme; and
(b) Schedule 7 to the Amending Act commences before the first pension payday after the lodging of the request;
for the purposes of this clause, the person is to be treated as a person who is participating in the previous pension loans scheme.
(2) Subject to subclause (3), in relation to a person who is participating in the previous pension loans scheme, subsection 11(1), paragraph 23(11)(b), subsection 1118(1) and Division 4 of Part 3.12 of this Act, as in force immediately before the commencement of Schedule 7 to the Amending Act, continue to have effect as if the Amending Act had not been enacted.
(3) If a person who is participating in the previous pension loans scheme:
(a) is qualified to participate in the current pension loans scheme; and
(b) makes a request to participate in the current scheme;
and the Secretary is satisfied that the amount of any debt that would become payable by the person to the Commonwealth under the current scheme would be readily recoverable, the current scheme applies to the person on and after the first pension payday after the request is lodged.
(4) The debt owed by a person who was participating in the previous pension loans scheme and who is participating in the current pension loans scheme by operation of subclause (3) is, for the purposes of working out the debt owed by the person under the current scheme, to be added to the basic amount of debt accrued under the current scheme.
(5) In this clause:
"Amending Act" means the Social Security and Veterans' Affairs Legislation Amendment Act 1995 .
"current pension loans scheme" means the pension loans scheme in operation under the provisions of this Act, as amended by the Amending Act.
"previous pension loans scheme" means the pension loans scheme in operation under the provisions of this Act, as in force immediately before the commencement of Schedule 7 to the Amending Act.
88 Saving: Determinations under repealed sections 1099E and 1099L
A determination in force under section 1099E or 1099L immediately before the commencement of this clause continues to have effect after that commencement as if:
(a) section 1084 of this Act, as in force immediately after the commencement of this clause, had been in force when the determination was made; and
(b) the determination had been made under that section as so in force; and
(c) any reference in the determination to section 1099B, 1099J or 1099K were a reference to sections 1076 to 1078 of this Act.
96A Application of revised Schedule 1B
(1) Subject to subclause (2), this Act, as amended by items 1, 2 and 4 of Schedule 16 of the amending Act, applies to claims lodged on or after the date of commencement of those items.
(2) Despite section 8 of the Acts Interpretation Act 1901 , the amendments made by items 1, 2 and 4 of Schedule 16 to the amending Act, apply in relation to:
(a) all medical, psychiatric or psychological examinations attended, or reports required, under subsection 105(1) on or after the date of commencement of those items; and
(b) all legal proceedings, applications for review of decisions, or determinations, to the extent that the proceedings, applications or determinations relate to, or involve, a medical, psychiatric or psychological examination referred to in paragraph (a).
(3) In this clause:
"amending Act" means the Social Security and Veterans' Affairs Legislation Amendment (Family and Other Measures) Act 1997 .
103 Application provision: income maintenance periods
(1) This Act, as amended by Part 1 of Schedule 7 to the amending Act, applies in relation to leave payments that are received on or after 20 September 1997.
(2) For the purposes of this section, a person (the first person ) is taken to receive a leave payment if the payment is made to another person:
(a) at the direction of the first person or a court; or
(b) on behalf of the first person; or
(c) for the benefit of the first person; or
the first person waives or assigns the first person's right to receive the payment.
(3) In this section:
"amending Act" means the Social Security Legislation Amendment (Budget and Other Measures) Act 1996.
"leave payment" includes payments in respect of sick leave, annual leave, maternity leave, and long service leave.
105 Application and saving provisions: debts due to the Commonwealth and their recovery
(1) For the avoidance of doubt, and without affecting the operation of section 8 of the Acts Interpretation Act 1901 , Part 2 of Schedule 18 to the amending Act does not:
(a) affect the operation of Part 5.2 or 5.3 of this Act before 1 October 1997; or
(b) extinguish the amount of any debt due to the Commonwealth arising before 1 October 1997 that was outstanding at the start of that day; or
(c) prevent the recovery, on or after 1 October 1997, of any such outstanding amount.
(2) Sections 1230C and 1236 of this Act, as amended by the amending Act, apply in relation to:
(a) debts arising on or after 1 October 1997; and
(b) the amounts of debts arising before that day that were outstanding at the start of that day.
(3) Section 1237A of this Act, as amended by the amending Act, applies in relation to debts arising before, on or after 1 October 1997.
(4) Despite section 8 of the Acts Interpretation Act 1901 , if a legal proceeding or an application for review of a decision:
(a) relates to, or otherwise involves, a provision of Part 5.2, 5.3 or 5.4 of this Act; and
(b) is not finally determined before 1 October 1997;
the proceeding or application must, if continued, be determined as if it had been instituted on that day, and this Act, as amended by Schedule 18 to the amending Act, applies to the proceeding or application accordingly.
(5) In this clause:
"amending Act" means the Social Security Legislation Amendment (Budget and Other Measures) Act 1996 .
105A Parenting payment (changes introduced 20 March 1998)
Continuing effect of determinations etc. in force or effective before 20 March 1998
(1) If a determination, notice, statement or other instrument relating to sole parent pension or to parenting allowance was in force or had effect immediately before 20 March 1998, it continues in force on and after that date as if it had been made or given under this Act in relation to parenting payment.
Pending claims for sole parent pension or parenting allowance
(2) If:
(a) a person lodged a claim for sole parent pension or parenting allowance under this Act before 20 March 1998; and
(b) the claim was not determined before that date;
the claim has effect on and after that date as if it were a claim for parenting payment.
Claims made on or after 20 March 1998 in respect of periods before 20 March 1998--sole parent pension and parenting allowance
(3) If:
(a) a person lodges a claim for sole parent pension or parenting allowance on or after 20 March 1998; and
(b) the claim is made in respect of a period commencing before 20 March 1998;
the claim has effect as if it had been made immediately before 20 March 1998.
Claims made on or after 20 March 1998 in respect of periods before 20 March 1998--parenting payment
(4) If:
(a) a person lodges a claim for parenting payment on or after 20 March 1998; and
(b) the claim is made in respect of a period commencing before 20 March 1998;
the claim has effect:
(c) as if it had been made immediately before 20 March 1998; and
(d) in the case of a person who was not a member of a couple at the beginning of the period in respect of which the claim is made--as if it were a claim for sole parent pension; and
(e) in the case of a person who was a member of a couple at the beginning of the period in respect of which the claim is made--as if it were a claim for parenting allowance.
Sole parent pension bereavement payment in respect of death of child
(5) If, immediately before 20 March 1998:
(a) a person was qualified for a payment under Subdivision A of Division 9 of Part 2.6; and
(b) the period for which the person was qualified had not yet ended;
then:
(c) the person remains qualified for that payment on and after 20 March 1998 as if Parts 2.6 and 3.4 as in force immediately before that date were still in force; and
(d) subclause (1) (dealing with continuing effect of determinations) does not apply to the person.
Sole parent pension bereavement payment in respect of death of pensioner partner
(6) If, immediately before 20 March 1998:
(a) a person was qualified for a payment under Subdivision B of Division 9 of Part 2.6; and
(b) the period for which the person was qualified had not yet ended;
then:
(c) the person remains qualified for that payment on and after 20 March 1998 as if Parts 2.6 and 3.2 as in force immediately before that date were still in force; and
(d) subclause (1) (dealing with continuing effect of determinations) does not apply to the person; and
(e) on the day after the end of the period referred to in paragraph (b), the person is taken to have made a claim for parenting payment.
Parenting allowance bereavement payment in respect of death of child
(7) If, immediately before 20 March 1998:
(a) a person was qualified for a payment under Subdivision B of Division 10 of Part 2.18; and
(b) the period for which the person was qualified had not yet ended;
then:
(c) the person remains qualified for that payment on and after 20 March 1998 as if Parts 2.18 and 3.6A as in force immediately before that date were still in force; and
(d) subclause (1) (dealing with continuing effect of determinations) does not apply to the person.
Parenting allowance bereavement payment in respect of death of partner
(8) If, immediately before 20 March 1998:
(a) a person was qualified for a payment under Subdivision D or E of Division 10 of Part 2.18; and
(b) the period for which the person was qualified had not yet ended;
then:
(c) the person remains qualified for that payment on and after 20 March 1998 as if Parts 2.18 and 3.6A as in force immediately before that date were still in force; and
(d) subclause (1) (dealing with the continuing effect of determinations) does not apply to the person; and
(e) on the day after the end of the period referred to in paragraph (b), the person is taken to have made a claim for parenting payment.
Pending application for advance payment of sole parent pension
(9) If:
(a) a person lodged an application for an advance payment of sole parent pension under Part 2.22 before 20 March 1998; and
(b) the application was not determined before that date;
the application is taken, on and after that date, to be an application for an advance payment of pension PP (single).
Saving of certain SPP children
(10) If:
(a) sole parent pension was payable to a person who was not in Australia immediately before 20 March 1998 in relation to an SPP child; and
(b) parenting payment would, but for the operation of section 500F, 500G or 500H, be payable to the person on that date in relation to that child;
those sections do not apply to the person in relation to that child until one of the following events occurs:
(c) the child ceases to be a PP child of the person because of the operation of a provision other than section 500F, 500G or 500H;
(d) parenting payment ceases to be payable to the person;
(e) the person becomes a member of a couple;
(f) if the person was not an Australian resident on 20 March 1998--the person becomes an Australian resident;
(g) if the person was an Australian resident on 20 March 1998--the person returns to Australia.
Application: income maintenance period rules
(11) The following provisions (dealing with income maintenance periods in relation to continuing employment) as in force on 20 March 1998 apply to a person in respect of a leave period commencing on or after 20 March 1998:
(a) point 1067 - H5G;
(b) point 1067E - G6G;
(c) point 1068 - G7AG.
(12) Subject to subclause (13), point 1068A - E4 (dealing with income maintenance periods in relation to terminated employment) as in force on 20 March 1998 applies to a person in respect of any leave payment received by the person on or after 20 March 1998.
(13) If:
(a) a determination applying an income maintenance period in relation to a person's claim for, or payment of, parenting allowance, a social security benefit or youth training allowance was in force on or after 20 September 1997; and
(b) pension PP (single) is payable to the person on or after 20 March 1998;
point 1068A - E4 applies to the person in respect of any leave payment received by the person on or after 20 September 1997.
Saving of certain recipients of sole parent pension and parenting allowance
(14) If:
(a) sole parent pension or parenting allowance was payable to a person immediately before 20 March 1998; and
(b) on 20 March 1998 the person would not, apart from this subclause, qualify for parenting payment because the person does not satisfy the requirements of paragraph 500(1)(d);
the person is taken, on and after 20 March 1998, to satisfy the requirements of paragraph 500(1)(d) until:
(c) parenting payment ceases to be payable to the person; or
(d) the person satisfies the requirements of paragraph 500(1)(d) otherwise than by reason of this subclause.
Saving of certain other recipients of sole parent pension
(15) If:
(a) sole parent pension was payable to a person who was not in Australia immediately before 20 March 1998; and
(b) on or after 20 March 1998, the person would not, apart from this subclause, qualify for parenting payment because the person does not satisfy the requirements of either or both of paragraphs 500(1)(b) and (c);
the person is taken, on and after 20 March 1998, to satisfy the requirements of both those paragraphs until:
(c) parenting payment ceases to be payable to the person; or
(d) the person becomes a member of a couple; or
(e) if the person was not an Australian resident on 20 March 1998--the person becomes an Australian resident; or
(f) if the person was an Australian resident on 20 March 1998--the person returns to Australia.
(16) In relation to a person who is receiving parenting payment because of the application of subclause (15) and Part 4.2 of this Act, as in force immediately before 20 March 1998, apply to the person on and after 20 March 1998. These provisions apply to the person as if references to sole parent pension were references to pension PP (single).
Saving of persons receiving sole parent pension under scheduled international social security agreement
(17) If:
(a) a sole parent pension was payable to a person immediately before 20 March 1998 under a scheduled international social security agreement; and
(b) the person is not a member of a couple; and
(c) on 20 March 1998, the person would qualify for parenting payment but for the operation of any of the following:
(i) paragraph 500(1)(b) or (c);
(ii) subparagraph 500(1)(d)(ii) to the extent it requires a person to have been in Australia for the period specified in that subparagraph;
(iii) section 500F, 500G or 500H;
then, on and after 20 March 1998:
(d) the provisions referred to in paragraph (c) do not apply to the person; and
(e) if parenting payment is payable to the person, it is taken to be payable to the person under the scheduled international social security agreement.
(18) Subclause (17) applies to a person until:
(a) parenting payment ceases to be payable to the person; or
(b) the person satisfies the provisions referred to in paragraph (17)(c).
115 Persons under 21 receiving newstart allowance or sickness allowance on 17 June 1997
(1) If:
(a) a person was, on 17 June 1997, under 21 years of age and a recipient of newstart allowance or sickness allowance; and
(b) the person did not cease to be, and was immediately before 1 July 1998, a recipient of newstart allowance or sickness allowance; and
(c) the person was, immediately before 1 July 1998, under 21 years of age;
then:
(e) the person is to continue to receive the newstart allowance or sickness allowance on and after that day; and
(f) subject to subclauses (2) and (3), Part 2.12 or 2.14 (as the case may be) as in force immediately before that day continues to apply to the person.
(2) If, on or after 1 July 1998, the Secretary cancels or suspends:
(a) a person's newstart allowance under section 660I or 660IA; or
(b) a person's sickness allowance under section 728L or 728M;
a determination by the Secretary under section 660J or 728P (as the case may be) that the allowance is payable to the person does not have effect unless the determination is made within 6 weeks after the Secretary's decision to cancel or suspend the allowance.
(3) Newstart allowance or sickness allowance ceases to be payable to a person who has been receiving it because of subclause (1) if the person makes a claim for youth allowance and the claim is granted.
126 Application and transitional provisions relating to fares allowance
(1) Part 2.26 applies only in respect of claims for fares allowance made after the commencement of that Part for journeys made after that commencement.
(2) The Social Security (Fares Allowance) Rules 1998 made under section 1061ZAAA as in force immediately before the commencement of Part 2.26 continue in force as if that section were still in force but apply only in respect of claims made, whether before or after that commencement, for journeys made before that commencement.
(3) If:
(a) a person has, before the commencement of Part 2.26, made a journey in a study year; and
(b) the person is eligible, under the Rules referred to in subclause (2), as they continue in force under that subclause (the continuing Rules ) for fares allowance in respect of the journey; and
(c) the person makes a claim under Part 2.26 for fares allowance in respect of a journey made, or to be made, after the commencement of that Part in the same study year;
the claim is not to be determined until the person has made a claim under the continuing Rules in respect of the journey referred to in paragraph (a) and the claim has been finally dealt with in accordance with those Rules.
128 Saving provision--portability rules relating to rates of pension
(1) Despite the amendments of sections 1213A, 1215, 1216, 1220A, 1220B and 1221 of this Act made by the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000 , if:
(a) a person was absent from Australia immediately before 20 September 2000; and
(b) at a time (the post - start time ) after 20 September 2000, the person had not returned to Australia for a continuous period of 26 weeks or more since 20 September 2000;
those provisions continue to apply to the person at the post - start time as if those amendments had not been made.
(1A) If:
(a) the Secretary is satisfied that the person's return to Australia is temporary; and
(b) the Secretary is satisfied that the person is unable to leave Australia before the end of the 26 weeks mentioned in paragraph (1)(b) because of an event referred to in subclause (1B);
the Secretary may, in relation to the person, determine that a reference to 26 weeks in paragraph (1)(b) is taken to be a reference to another number of weeks.
(1B) The events are the following:
(a) a serious accident involving the person or a family member of the person;
(b) a serious illness of the person or a family member of the person;
(c) the hospitalisation of the person or a family member of the person;
(d) the death of a family member of the person;
(e) the person's involvement in custody proceedings in Australia;
(f) a legal requirement for the person to remain in Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g) robbery or serious crime committed against the person or a family member of the person;
(h) a natural disaster in Australia;
(i) a public health crisis affecting Australia or the country to which the person intends to return to or both.
(1C) The Secretary must not make a determination under subclause (1A) unless the event occurred or began during the period of return to Australia.
(1D) If the Secretary determines another number (the new number ) of weeks under subclause (1A), then, immediately after that determination is made, a reference to a number of weeks in paragraph (1)(b), and each reference to a number of weeks in subclause (1A), is taken to be a reference to that new number.
(2) However, the following provisions (as in force as if the amendments described in subclause (1) had not been made) do not continue to apply to the person at or after the first time the person is in Australia after the commencement of Schedule 6 to the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 :
(a) section 1213A;
(b) section 1215;
(c) section 1216;
(d) section 1220B, so far as it relates to a pension other than age pension or bereavement allowance.
Note: If those provisions (as in force as if the amendments described in subclause (1) had not been made) do not continue to apply to the person at a particular time, the person is covered at that time by this Act as in force at that time.
(3) To avoid doubt, Schedule 6 to the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 does not affect section 1220B (as in force as if the amendments described in subclause (1) had not been made) so far as that section continues to apply because of that subclause.
128A Saving of certain pensions payable under 1986 Agreement between Australia and Italy
(1) In this clause:
"1986 Agreement" means the agreement made between the Government of Australia and the Government of the Republic of Italy on 23 April 1986.
(2) This subclause applies to a person if:
(a) the person has become qualified to receive a disability support pension because of the 1986 Agreement; and
(b) the person became qualified to receive the pension because he or she became unable to work or became permanently blind, as the case may be, while he or she was in Australia or was temporarily absent from Australia.
(3) Subject to subclause (4), this subclause applies to a person if:
(a) on 8 May 1985, the person was either:
(i) an Australian resident; or
(ii) an absent resident within the meaning of the 1986 Agreement; and
(b) the person left Australia before 1 January 1996; and
(c) while absent from Australia, the person became eligible to receive a social security payment by virtue of the 1986 Agreement; and
(d) the person commenced to receive that social security payment before 1 January 1996; and
(e) immediately before 1 October 2000, the rate at which that social security payment was payable was worked out under subparagraph 1(b) of Article 8 of the 1986 Agreement; and
(f) the person has not returned to Australia on or after 1 October 2000 for a continuous period of 26 weeks.
(4) Subclause (3) ceases to apply to a person if the rate at which the social security payment would be payable to the person apart from this clause exceeds the rate at which the social security payment is payable to the person as a person to whom subclause (3) applies.
(5) In spite of any other provision of the social security law relating to the rate at which a disability support pension is payable, the rate at which such a pension is payable to a person to whom subclause (2) applies is the rate at which the pension would be payable to the person if:
(a) the person were an Australian resident; and
(b) the person were not entitled to have included in the rate of the pension:
(i) any amount representing:
(A) pharmaceutical allowance; or
(B) remote area allowance; or
(C) rent assistance; or
(ii) any amount similar to the amounts referred to in subparagraph (i).
(6) In spite of any other provision of the social security law relating to the rate at which a social security payment is payable, the rate at which such a payment is payable to a person to whom subclause (3) applies is the rate worked out according to subparagraph 1(b) of Article 8 of the 1986 Agreement.
130 Saving provision--other portability rules
Despite the amendments of this Act made by Part 1 of Schedule 1 to the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000 , other than:
(a) the amendments mentioned in clause 128 of this Schedule; and
(b) the amendments of sections 1216B, 1218, 1218A, 1218B, 1218C and 1219; and
(c) the amendment of Module A of the Rate Calculator at the end of section 1221;
if:
(d) a person was absent from Australia immediately before 20 September 2000; and
(e) at a time (the post - start time ) after 20 September 2000, the person had not returned to Australia since 20 September 2000;
this Act continues to apply to the person at the post - start time as if the amendments (other than those mentioned in paragraphs (a) to (c)) had not been made.
131 Certain payments not recoverable
An amount paid to a person under this Act is not recoverable from the person if:
(a) the amount was not payable because the person, or the person's partner, had received a comparable foreign payment; and
(b) during the period beginning on 20 September 2000 and ending on 19 January 2001, the person gave notice to the Secretary of any comparable foreign payment which he or she had received or was receiving; and
(c) the amount was paid before the person gave notice as mentioned in paragraph (b); and
(d) before receiving that notice, the Secretary was unaware that the person, or the person's partner, had received or was receiving the comparable foreign payment.
132 Saving--ABSTUDY recipients
(1) If, immediately before 1 January 2001, a person was receiving:
(a) a relevant pension; and
(b) a payment under a provision of the ABSTUDY Scheme made on the basis that the person was a full - time student;
this clause applies to the person.
(2) In spite of the amendments of this Act made by Schedule 1 to the Family and Community Services (2000 Budget and Related Measures) Act 2000 :
(a) the person does not cease to be qualified for the relevant pension by reason only of those amendments; and
(b) if the person continues, on and after 1 January 2001, to receive the same payment under the ABSTUDY Scheme, that payment (except where it is a payment of a pensioner education supplement) is to be taken, for the purposes of this Act, to be income paid to, or on behalf of, the person.
(3) In this clause:
"relevant pension" means:
(a) age pension; or
(b) bereavement allowance; or
(c) carer payment; or
(d) disability support pension; or
(e) pension PP (single); or
(f) widow B pension; or
(g) wife pension.
133 Meaning of Australian resident
For the purposes of determining whether a person was an Australian resident at a time, or throughout a period, occurring before the commencement of item 2 of Schedule 1 to the Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001 :
(a) the definition of Australian resident at that time, or throughout that period, applies; and
(b) that definition, as amended by the Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001 , does not apply.
134 Transitional and saving provisions--substitution of Part 3.14
(1) In this clause:
"2001 amending Act" means the Family and Community Services Legislation (Simplification and Other Measures) Act 2001 .
"new Act" means this Act, as amended by the 2001 amending Act.
"old Act" means this Act, as in force immediately before 20 September 2001.
"old lump sum preclusion period" has the same meaning as in the old Act.
(2) Part 3.14 of the new Act has effect subject to this clause.
(3) Subject to subclause (9), if:
(a) before 20 September 2001, because of the operation of subsection 1165(1A) or (2AA) of the old Act, a social security payment had ceased to be payable to a person for a period; and
(b) if the provisions of the old Act had continued in force on and after 20 September 2001, the payment would not have become payable again until a time on or after that date;
then, on and after 20 September 2001, the new Act has effect as if:
(c) the new Act had been in operation when the social security payment ceased to be payable for the period; and
(d) the social security payment had so ceased because of the operation of subsection 1169(1) of the new Act.
(4) Subject to subclause (9), if:
(a) before 20 September 2001, because of the operation of a provision of the old Act specified in the table in subclause (8), the rate at which a social security payment was payable to a person was reduced for a period; and
(b) if the provisions of the old Act had continued in force on and after 20 September 2001, the payment would have continued to be payable at the reduced rate until a time on or after that date;
then, on and after 20 September 2001, the new Act has effect as if:
(c) the new Act had been in operation when the social security payment became payable at the reduced rate; and
(d) the social security payment had become so payable because of the operation of the corresponding provision of the new Act.
(5) If a notice to which this subclause applies was in effect immediately before 20 September 2001, the new Act has effect, on and after 20 September 2001, as if:
(a) the new Act had been in operation when the notice was given; and
(b) the notice had been given under the provision of the new Act that corresponds to the provision of the old Act under which the notice was given.
(6) Subclause (5) applies to the following notices:
(a) a notice under subsection 1166(1) of the old Act in relation to a recoverable amount calculated under subsection 1166(3), (4) or (4C) of that Act;
(b) a notice under subsection 1170(1) of the old Act in relation to a recoverable amount calculated under subsection 1170(3) or (4) of that Act;
(c) a notice under subsection 1172(1) of the old Act;
(d) a notice under subsection 1174(1) of the old Act in relation to a recoverable amount calculated under subsection 1174(6) of that Act;
(e) a notice under subsection 1177(1) of the old Act;
(f) a notice under subsection 1179(1) of the old Act in relation to a recoverable amount calculated under subsection 1179(6) of that Act.
(7) If:
(a) before 20 September 2001, a person applied, under section 129, 142 or 179 of the Administration Act, for review of a decision made as a result of the operation of a provision of the old Act specified in column 2 of an item in the table in subclause (8); and
(b) the review was not determined before 20 September 2001;
then, on and after 20 September 2001, the review is to be determined in accordance with this Act, as in force when the decision was made.
(8) The provision of the new Act that corresponds, for the purposes of this clause, to the provision of the old Act specified in column 2 of an item of the following table is the provision specified in column 3 of the item.
Corresponding provisions | ||
Column 1 Item | Column 2 Old Act provision | Column 3 Corresponding new Act provision |
1 | Subsection 1165(1A) | Subsection 1169(1) |
2 | Subsection 1165(2AA) | Subsection 1169(1) |
3 | Subsection 1166(1) | Subsection 1178(1) |
4 | Subsection 1168(1) (except to the extent that it operated in relation to a person's social security payment where the person's partner, but not the person, had received compensation) | Subsection 1173(1) |
5 | Subsection 1170(1) | Subsection 1180(1) |
6 | Subsection 1172(1) | Subsection 1182(1) |
7 | Subsection 1174(1) | Subsection 1184(1) |
8 | Subsection 1177(1) | Subsection 1182(2) |
9 | Subsection 1179(1) | Subsection 1184(2) |
10 | Section 1184 | Section 1184K |
(9) On and after 20 September 2001:
(a) the new Act has effect as if:
(i) it included provisions in the same terms as subsection 17(1) of the old Act to the extent that it defines average weekly earnings and subsections 1165(1) and (2), 1166(4A), 1174(4) and (5), and 1179(4) and (5) of the old Act; and
(ii) section 1169 of the new Act did not apply where the lump sum compensation payment was received before 20 March 1997; and
(b) for the purposes of the operation of paragraph (a), old lump sum preclusion period is taken to have the same meaning in the new Act as in the old Act; and
(c) for the purposes of the operation of paragraph (a), the lump sum preclusion period, for the purposes of the new Act, is the period that corresponds to the old lump sum preclusion period.
(10) If:
(a) a person received compensation before 1 January 1993; and
(b) the person's partner (the partner ) claimed or received carer pension before that date because the partner was caring for the person;
this Act, as it applied in relation to carer payment being received by the partner immediately before 20 September 2001, continues to apply in relation to carer payment received by the partner before, on or after 20 September 2001 because the partner was or is caring for the person.
(11) If:
(a) before 20 September 2001, a person was given a notice under Subdivision B of Division 6 of Part 3, or Division 1 of Part 5, of the Administration Act; and
(b) the notice required the person:
(i) to inform the Department whether a specified event or change of circumstances had occurred; or
(ii) to give the Department a statement about a matter; or
(iii) to give information or produce a document; and
(c) the notice required the information or statement to be given within a specified period; and
(d) the person has failed to comply with the requirement of the notice;
any determination made under the Administration Act on or after 20 September 2001 as a result of the occurrence of an event or change of circumstances, or in connection with a matter, to which the notice related must be made in accordance with this Act as in force immediately before the end of the period referred to in paragraph (c).
135 Unlimited maximum portability period for disability support pension
(1) The Secretary may determine that a person's maximum portability period for disability support pension is an unlimited period if:
(a) at the commencement of this clause, the person is absent from Australia and receiving disability support pension; and
(b) under this Act as in force immediately before the commencement, that absence could not affect the person's right to continue to be paid the disability support pension throughout the period of that absence; and
(c) after the commencement, the person enters Australia but does not become an Australian resident again.
Note: The condition in paragraph (1)(b) may be met:
(a) because the person was severely disabled (see subsection 1214(1) and item 2 of the table in subsection 1217(5) as those subsections were in force just before the commencement); or
(b) because clause 128 (as in force just before the commencement) applied to the person section 1213A as in force before its repeal by the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000 .
(2) The determination has effect for the purposes of Part 4.2 of this Act as it applies in relation to an absence after the person's entry, despite the repeal and substitution of items 2 and 3 of the table in section 1217 of this Act by the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 .
136 Transitional definition of deductible amount (commencing 1 July 2007)
(1) This clause applies if:
(a) a person has received at least one payment from a defined benefit income stream before 1 July 2007, and is still receiving payments from the income stream; and
(b) the person receives income support payment in respect of a continuous period starting before, and ending on or after, the person's trigger day (see subsection (5)); and
(c) the amount of the income support payment received before the person's trigger day was affected by the deduction of a deductible amount (within the meaning of this Act or the Veterans' Entitlements Act, as the case requires, apart from this clause) from the amount of the payments payable to the person for a year under the income stream; and
(d) if the person's trigger day is after 1 July 2007--the income stream has not been partially commuted on or after 1 July 2007 and before the person's trigger day.
Note 1: If the income stream is wholly commuted, this clause will stop applying because the person will no longer be receiving payments from the income stream (see paragraphs (1)(a) and (d)).
Note 2: For the deduction of a deductible amount from amounts payable under certain defined benefit income streams, see sections 1099A and 1099D of this Act and sections 46V and 46Y of the Veterans' Entitlements Act.
(2) Despite the amendment of this Act by Part 2 of Schedule 8 to the Tax Laws Amendment (Simplified Superannuation) Act 2007 , for the purposes of working out the amount of any income support payment (other than a service pension or income support supplement) received by the person on or after the trigger day in respect of the remaining part of the period mentioned in paragraph (1)(b), the deductible amount , in relation to the income stream for a year, is the greater of the following amounts:
(a) the deductible amount mentioned in paragraph (1)(c);
(b) the sum of the amounts that are the tax free components (worked out under subsections 307 - 125(4) to (7) of the Income Tax (Transitional Provisions) Act 1997 ) of the payments received from the income stream during the year.
(3) However, this clause stops applying to an income stream immediately after the time (if any) that the deductible amount in relation to the income stream is, under subclause (2), the amount mentioned in paragraph (2)(b).
(3A) If:
(a) this clause applies; and
(b) an amount (the transitional amount ) is worked out under subclause (2) in relation to a defined benefit income stream for a year starting on or after 1 January 2016; and
(c) that income stream is not a military defined benefit income stream; and
(d) that amount is worked out in relation to the operation of section 1099A or 1099D;
then, for the purposes of the operation of paragraph 1099A(2)(b) or 1099D(2)(b), the transitional amount is taken to be the deductible amount under subsection 1099A(1) or 1099D(1) in relation to that income stream for that year.
Note: The effect of this subclause is that the cap on the deductible amount under subsection 1099A(2) or 1099D(2) might apply.
(4) For the purposes of this clause, without limiting paragraph (1)(b), if the form of a person's income support payment mentioned in paragraph (1)(b) changes during a period, the continuity of the period is not broken by the change.
Example: The form of a person's income support payment may change from one kind of payment (for instance, a service pension under the Veterans' Entitlements Act) to another (for instance, a social security pension under this Act).
(5) In this clause:
"trigger day" , for a person, means:
(a) if the person is under 60 years at the end of 30 June 2007--the day the person turns 60; or
(b) if the person is 60 years or over at the end of 30 June 2007--1 July 2007.
Subject to clauses 138 and 140, the amendments made by items 1 to 16 of Schedule 1 to the Social Security Legislation Amendment (Improved Support for Carers) Act 2009 apply to claims for a carer payment made on or after the commencement of this clause.
138 Application--subsections 198AA(1) and (3)
Subsections 198AA(1) and (3) of this Act as amended by the Social Security Legislation Amendment (Improved Support for Carers) Act 2009 apply to a person who:
(a) is receiving a carer payment immediately before 1 July 2009; or
(b) makes a claim for a carer payment on or after 1 July 2009.
139 Application--subsection 955(2)
Subsection 955(2) of this Act as amended by the Social Security Legislation Amendment (Improved Support for Carers) Act 2009 applies to a person who:
(a) is receiving carer allowance immediately before 1 July 2009; or
(b) makes a claim for a carer allowance on or after 1 July 2009.
(1) Subject to clauses 139B and 141, the amendments made by items 1 to 68 and 76 to 77 of Schedule 1 to the Social Security Legislation Amendment (Improved Support for Carers) (Consequential and Transitional) Act 2009 apply to claims for a carer payment made on or after the commencement of this clause.
(2) Subject to clauses 139C and 143, the amendments made by items 69 to 75 of Schedule 1 to the Social Security Legislation Amendment (Improved Support for Carers) (Consequential and Transitional) Act 2009 apply to claims for special benefit made on or after the commencement of this clause.
139B Application--sections 198AAA and 198AB
The amendments made by items 9 and 10 of Schedule 1 to the Social Security Legislation Amendment (Improved Support for Carers) (Consequential and Transitional) Act 2009 apply to a person who:
(a) is receiving a carer payment immediately before 1 July 2009; or
(b) makes a claim for a carer payment on or after 1 July 2009.
139C Application--subsections 731J(2) and (6)
(1) Subsection 731J(2) of this Act as amended by Schedule 1 to the Social Security Legislation Amendment (Improved Support for Carers) (Consequential and Transitional) Act 2009 applies to a person who:
(a) is taken to satisfy the activity test under subsection 731J(1) of this Act immediately before 1 July 2009; or
(b) makes a claim for special benefit on or after 1 July 2009.
(2) Subsection 731J(6) of this Act as amended by Schedule 1 to the Social Security Legislation Amendment (Improved Support for Carers) (Consequential and Transitional) Act 2009 applies to a person who:
(a) is taken to satisfy the activity test under subsection 731J(4) of this Act immediately before 1 July 2009; or
(b) makes a claim for special benefit on or after 1 July 2009.
139D Saving--principal beneficiary of a special disability trust
Despite the amendment made by item 79 of Schedule 1 to the Social Security Legislation Amendment (Improved Support for Carers) (Consequential and Transitional) Act 2009 , this Act as in force immediately before the commencement of this clause continues to apply to a person who was a principal beneficiary (within the meaning of section 1209M of this Act) under 16 years of age immediately before that time.
140 Person whose carer payment was cancelled on or after 1 July 2008 and before 1 July 2010
Circumstances in which clause applies
(1) This clause applies if:
(a) a person (the carer ) received or receives a carer payment on or after 1 July 2008 for caring for one or more persons aged under 16; and
(b) the carer was or is qualified for the payment under paragraph 198(2)(b) or (c) of this Act (whether or not because of clause 141); and
(c) the payment was cancelled:
(i) with effect before the commencement of this clause; or
(ii) with effect on or after that commencement and before 1 July 2010; and
(d) on or after 1 July 2009 and before 1 July 2010, the carer makes a claim for a carer payment for caring for the same person or persons aged under 16.
Claim may be assessed as if paragraphs 198(2)(b) and (c) had not been repealed
(2) In addition to being assessed against this Act as in force after the commencement of this clause, the carer's claim may be assessed as if paragraphs 198(2)(b) and (c) of this Act had not been repealed.
Note: The effect of subclause (2) is that the person may qualify for a carer payment under paragraph 198(2)(b) or (c) or section 197B, 197C or 197E.
(3) Subject to clause 141, if, because of subclause (2), the person is qualified for a carer payment under paragraph 198(2)(b) or (c) of this Act, this Act (as in force immediately before 1 July 2009) applies in relation to the person.
141 Saving--profoundly disabled child and disabled child
Profoundly disabled child and disabled child
(1) Subject to this clause, if a person was receiving a carer payment immediately before 1 July 2009 because the person was qualified for that payment under paragraph 198(2)(b) or (c) of this Act, this Act (as in force immediately before that time) continues to apply in relation to the person.
Remaining qualified for up to 3 months after child turns 16
(2) Despite the repeal of paragraphs 198(2)(b) and (c) of this Act by the Social Security Legislation Amendment (Improved Support for Carers) Act 2009 , paragraph 197K(1)(a) of this Act applies to a person as if that paragraph included a reference to a person:
(a) who was qualified for a carer payment under either of the repealed paragraphs; and
(b) who:
(i) remains qualified for a carer payment because of subclause (1); or
(ii) becomes qualified for a carer payment because of subclause 140(3).
Unlimited hospitalisation
(3) Despite the repeal of paragraphs 198(2)(b) and (c) of this Act by the Social Security Legislation Amendment (Improved Support for Carers) Act 2009 , subsection 198AA(1) of this Act applies to a person as if that subsection included a reference to a person:
(a) who was qualified for a carer payment under either of the repealed paragraphs; and
(b) who:
(i) remains qualified for a carer payment because of subclause (1); or
(ii) becomes qualified for a carer payment because of subclause 140(3).
Automatic qualification for carer allowance
(4) Despite the repeal of paragraphs 198(2)(b) and (c) of this Act by the Social Security Legislation Amendment (Improved Support for Carers) Act 2009 , section 954B of this Act applies to a person as if paragraph 954B(a) included a reference to a person:
(a) who was qualified for a carer payment under either of the repealed paragraphs; and
(b) who:
(i) remains qualified for a carer payment because of subclause (1); or
(ii) becomes qualified for a carer payment because of subclause 140(3).
142 Person whose special benefit was cancelled on or after 1 July 2008 and before 1 July 2010
Circumstances in which clause applies
(1) This clause applies if:
(a) a person received or receives special benefit on or after 1 July 2008; and
(b) while the person received or receives special benefit, the person was or is taken to satisfy the activity test under subsection 731J(1) of this Act because the person was or is caring for a child or children referred to in paragraph 198(2)(b) or (c) of this Act (whether or not because of clause 143); and
(c) the special benefit was cancelled:
(i) with effect before the commencement of this clause; or
(ii) with effect on or after that commencement and before 1 July 2010; and
(d) on or after 1 July 2009 and before 1 July 2010, the carer makes a claim for special benefit; and
(e) the person is caring for the same child or children aged under 16.
Claim may be assessed as if paragraphs 198(2)(b) and (c) had not been repealed
(2) In addition to being assessed against this Act as in force after the commencement of this clause, the person's claim may be assessed as if paragraphs 198(2)(b) and (c) of this Act had not been repealed.
Note: The effect of subclause (2) is that the person may be taken to satisfy the activity test under section 731HA, 731HB or 731J of this Act because the person is caring for the child or children.
(3) Subject to clause 143, if, because of subclause (2), the person is taken to satisfy the activity test under section 731J of this Act because the person is caring for the child or children, this Act (as in force immediately before 1 July 2009) applies in relation to the person.
143 Saving--profoundly disabled child and disabled child
Profoundly disabled child and disabled child
(1) Subject to this clause, if, immediately before 1 July 2009, a person was taken, under section 731J of this Act, to satisfy the activity test because the person met the qualification conditions for a carer payment for caring for a child or children referred to in paragraph 198(2)(b) or (c) of this Act, this Act (as in force immediately before that time) continues to apply in relation to the person.
Taken to satisfy the activity test for up to 3 months after child turns 16
(2) If:
(a) either:
(i) a person continues to be taken to satisfy the activity test in section 731J of this Act because of subclause (1) for caring for a child or children; or
(ii) a person starts to become taken to satisfy the activity test because of subclause 142(3) for caring for a child or children; and
(b) the child, or one of the children, turns 16; and
(c) the child has not been assessed and rated and given a score under the Adult Disability Assessment Tool; and
(d) apart from the child turning 16, the person would remain taken to satisfy the activity test;
the person continues to be taken to satisfy the activity test for 3 months after the child turns 16.
Unlimited hospitalisation--profoundly disabled child or disabled child
(3) Subsection 731J(2) of this Act as amended by Schedule 1 to the Social Security Legislation Amendment (Improved Support for Carers) (Consequential and Transitional) Act 2009 applies to a person who:
(a) continues to be taken to satisfy the activity test in section 731J of this Act because of subclause (1) for caring for a child or children; or
(b) starts to become taken to satisfy the activity test because of subclause 142(3) for caring for a child or children.
144 Saving and transitional provisions for section 93H
Saving provision
(1) Section 93H, as in force before 20 September 2009, continues to apply to set a person's annual pension rate for the purposes of Division 6 of Part 2.2A if the start day for the age pension was before 20 September 2009.
Indexation of subsection 93H(4) amounts on 20 September 2009
(2) Part 3.16, as amended by Part 3 of Schedule 1 to the Social Security and Other Legislation Amendment (Pension Reform and Other 2009 Budget Measures) Act 2009 , applies to the indexation on 20 September 2009, and later indexation days, of the amounts in subsection 93H(4).
145 Saving provision for income test taper rate for disability support pensioners under 21 without dependent children
(1) Point 1066A - F9, as in force before 20 September 2009, continues to apply to working out a person's rate of disability support pension under Pension Rate Calculator D in section 1066A if:
(a) the person was receiving disability support pension immediately before that day at a rate worked out under that Calculator; and
(b) the rate was worked out taking account of an ordinary income excess under point 1066A - F10 that was more than nil.
Note: This clause is relevant only if Pension Rate Calculator D in section 1066A continues to apply to working out the person's rate of disability support pension.
(2) Subclause (1) ceases to apply, and does not apply ever again, in relation to the person if:
(a) the person's rate of disability support pension under Pension Rate Calculator D in section 1066A for a day on or after 20 September 2009 is worked out taking account of an ordinary income excess under point 1066A - F10 that is nil or less; or
(b) Pension Rate Calculator D in section 1066A ceases to apply for working out the person's rate of disability support pension for a day on or after 20 September 2009; or
(c) the person ceases to receive disability support pension on or after 20 September 2009.
Application
(1) This clause applies if:
(a) on 19 September 2009 a person was receiving one of the following payments:
(i) age pension;
(ii) disability support pension;
(iv) carer payment;
(vii) special needs pension;
(viii) service pension (except carer service pension);
(ix) income support supplement; and
(b) either:
(i) the person continues (without a break) to receive one of those payments (whether or not of the same sort as the one the person received on that day); or
(ii) subclause (1A) applies to the person.
(1A) This subclause applies to a person if:
(a) a payment by the Thalidomide Australia Fixed Trust:
(i) is made to, or applied for the benefit of, the person as a beneficiary of the Trust; or
(ii) is made to, or applied for the benefit of, the person's partner as a beneficiary of the Trust; or
(iii) is made to the person or the person's partner in respect of a beneficiary of the Trust; and
(b) subparagraph (1)(b)(i) applies to the person immediately before the payment is made; and
(c) the person receives any of the payments mentioned in paragraph (1)(a) at the commencement of item 4 of Schedule 4 to the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Election Commitments and Other Measures) Act 2011 ; and
(d) after that commencement, the person continues (without a break) to receive that payment, or any of the other payments referred to in paragraph (1)(a).
Purpose
(2) This clause has effect for the purposes of working out the rate of one of the social security pensions described in paragraph (1)(a) for the person for a day (the relevant day ) after 19 September 2009 under point 1064 - A1 or 1065 - A1, or under section 796 so far as one or more of those points are relevant because of that section.
Note: This clause does not make a person entitled to receive a social security pension if the person is not otherwise entitled to receive it.
Provisional annual payment rate
(3) The person's provisional annual payment rate is taken to be the amount worked out under subclause (4) if 1 / 364 of that amount is greater than 1 / 364 of the person's provisional annual payment rate apart from this clause.
Note: The provisional annual payment rate is an amount worked out under the method statement in point 1064 - A1. Point 1064 - A1 may be relevant of its own force or because of point 1065 - A1 or section 796.
(4) The amount is the one that would be the provisional annual payment rate under the relevant point if:
(a) the maximum payment rate for the person were the total of:
(i) the amount worked out under whichever of subclauses 147(1), (2), (3) and (4) is relevant to the person; and
(ia) the person's energy supplement (if any) (see subclause 149(5)); and
(ii) the amount (if any) per year calculated for the person under paragraph 1070A(b) (for rent assistance);
reduced, if subclause 147(1) or (2) is relevant to the person and an election by the person under subsection 1061VA(1) is in force, by the minimum pension supplement amount; and
(b) the amendments made by Schedules 6 and 7 to the Social Security and Other Legislation Amendment (Pension Reform and Other 2009 Budget Measures) Act 2009 had not been made.
Note 1: The maximum payment rate is an amount used in point 1064 - A1.
Note 2: Subclause 147(1) deals with a person in Australia who is not a member of a couple or is a member of an illness separated couple or respite care couple, or is partnered (partner in gaol).
Note 3: Subclause 147(2) deals with a person in Australia who is a member of a couple (but not a member of an illness separated couple or respite care couple, and not partnered (partner in gaol)).
Note 4: Subclause 147(3) deals with a person who has been outside Australia for more than 6 weeks and is not a member of a couple or is a member of an illness separated couple or respite care couple, or is partnered (partner in gaol).
Note 5: Subclause 147(4) deals with a person who has been outside Australia for more than 6 weeks and is a member of a couple (but not a member of an illness separated couple or respite care couple, and not partnered (partner in gaol)).
Note 6: The amount described in subparagraph (4)(a)(i) is indexed under sections 1191 to 1194 (CPI indexation) on and after 20 March 2010.
Limit on application of subclause (3)
(5) Subclause (3) does not apply for working out the rate of a social security pension of the person for the relevant day if the relevant day is after a day for which one of the following conditions was met:
(a) the amount worked out for the day under subclause (4) (in a previous application of this clause) was less than or equal to the person's provisional annual payment rate, apart from this clause, for a social security pension described in paragraph (1)(a);
(b) the amount worked out for the day under subclause 30(4) of Schedule 5 to the Veterans' Entitlements Act was less than or equal to the person's provisional payment rate for service pension (except carer service pension) apart from clause 30 of that Schedule;
(c) the amount worked out for the day under subclause 30(6) of Schedule 5 to the Veterans' Entitlements Act was less than or equal to the person's provisional payment rate for income support supplement apart from clause 30 of that Schedule.
(5A) However, subclause (5) does not prevent subclause (3) from applying for working out the rate of a social security pension of the person for the relevant day if:
(a) on the relevant day the person is a member of a couple, but not a member of an illness separated couple or respite care couple and not partnered (partner in gaol); and
(b) on each day for which a condition in paragraph (5)(a), (b) or (c) was met, the person was a member of a respite care couple; and
(c) on a day before all the days described in paragraph (b):
(i) the person was a member of a couple, but not a member of an illness separated couple or respite care couple and not partnered (partner in gaol); and
(ii) either subclause (3) affected the rate at which a social security pension was payable to the person or clause 30 of Schedule 5 to the Veterans' Entitlements Act affected the rate at which service pension or income support supplement was payable to the person.
Note: For member of a couple , illness separated couple , respite care couple and partnered (partner in gaol) see section 4.
147 Amounts for subparagraph 146(4)(a)(i)
Single Australian resident in Australia
(1) For the purposes of subparagraph 146(4)(a)(i), work out the amount as follows, if, on the relevant day:
(a) the person's family situation is any of the following:
(i) not a member of a couple;
(ii) member of an illness separated couple;
(iii) member of a respite care couple;
(iv) partnered (partner in gaol); and
(b) the person is residing in Australia; and
(c) the person either:
(i) is in Australia; or
(ii) is temporarily absent from Australia and has been so for a continuous period not exceeding 6 weeks.
Method statement
Step 1. Work out what each of the following amounts (described using the abbreviation used in Part 3.16 for the amount) would be on 20 September 2009, taking account of indexation (if any) under that Part on that day, if the Social Security and Other Legislation Amendment (Pension Reform and Other 2009 Budget Measures) Act 2009 had not been enacted:
(a) the amount that would be the pension MBR for a person who is not a member of a couple assuming that section 1195 did not apply on 20 September 2009;
(b) pension supplement for a person who is not (and was not on 1 July 2000) a member of a couple;
(c) pension PA "single" rate;
(d) TA (internet) "single" rate;
(e) UA "single" rate.
Step 2. Identify the greater of the amount described in paragraph (e) of step 1 and $525.20 (or either of them if they are the same).
Step 3. Add up all the amounts worked out under step 1 and the amount identified under step 2.
Step 4. If the result of step 3 is not a multiple of $2.60, round that result up to the next multiple of $2.60.
Note 1: For member of a couple , illness separated couple , respite care couple and partnered (partner in gaol) see section 4.
Note 2: Subsection 7(3) is relevant to determining whether a person is residing in Australia.
Note 3: Section 1190 explains the abbreviations used in Part 3.16.
Partnered Australian resident in Australia
(2) For the purposes of subparagraph 146(4)(a)(i), work out the amount as follows, if, on the relevant day:
(a) the person is a member of a couple, but not a member of an illness separated couple or respite care couple and not partnered (partner in gaol); and
(b) the person is residing in Australia; and
(c) the person either:
(i) is in Australia; or
(ii) is temporarily absent from Australia and has been so for a continuous period not exceeding 6 weeks.
Method statement
Step 1. Work out what each of the following amounts (described using the abbreviation used in Part 3.16 for the amount) would be on 20 September 2009, taking account of indexation (if any) under that Part on that day, if the Social Security and Other Legislation Amendment (Pension Reform and Other 2009 Budget Measures) Act 2009 had not been enacted:
(a) the amount that would be the pension MBR for a person who is a member of a couple (but not a member of an illness separated couple or respite care couple and not partnered (partner in gaol)) assuming that section 1195 did not apply on 20 September 2009;
(b) pension supplement for a person who is (and was on 1 July 2000) a member of a couple (but not a member of an illness separated couple or respite care couple and not partnered (partner in gaol));
(c) Pension PA "partnered" (item 2) rate;
(d) TA (internet) "partnered" (item 5) rate;
(e) half the UA "single" rate.
Step 2. Identify the greater of the amount described in paragraph (e) of step 1 and $262.60 (or either of them if they are the same).
Step 3. Add up all the amounts worked out under step 1 and the amount identified under step 2.
Step 4. If the result of step 3 is not a multiple of $2.60, round that result up to the next multiple of $2.60.
Note 1: For member of a couple , partnered , illness separated couple , respite care couple and partnered (partner in gaol) see section 4.
Note 2: Subsection 7(3) is relevant to determining whether a person is residing in Australia.
Note 3: Section 1190 explains the abbreviations used in Part 3.16.
Single person not covered by subclause (1)
(3) For the purposes of subparagraph 146(4)(a)(i), work out the amount as follows, if, on the relevant day:
(a) the person's family situation is any of the following:
(i) not a member of a couple;
(ii) member of an illness separated couple;
(iii) member of a respite care couple;
(iv) partnered (partner in gaol); and
(b) the person either:
(i) is not residing in Australia; or
(ii) is absent from Australia and has been so for a continuous period exceeding 6 weeks.
Method statement
Step 1. Work out what each of the following amounts (described using the abbreviation used in Part 3.16 for the amount) would be on 20 September 2009, taking account of indexation under that Part on that day, if the Social Security and Other Legislation Amendment (Pension Reform and Other 2009 Budget Measures) Act 2009 had not been enacted:
(a) the amount that would be the pension MBR for a person who is not a member of a couple assuming that section 1195 did not apply on 20 September 2009;
(b) pension supplement for a person who is not (and was not on 1 July 2000) a member of a couple.
Step 2. Add up the amounts worked out under step 1.
Note 1: For member of a couple , illness separated couple , respite care couple and partnered (partner in gaol) see section 4.
Note 2: Subsection 7(3) is relevant to determining whether a person is residing in Australia.
Note 3: Section 1190 explains the abbreviations used in Part 3.16.
Partnered person not covered by subclause (2)
(4) For the purposes of subparagraph 146(4)(a)(i), work out the amount as follows, if, on the relevant day:
(a) the person is a member of a couple, but not a member of an illness separated couple or respite care couple and not partnered (partner in gaol); and
(b) the person either:
(i) is not residing in Australia; or
(ii) is absent from Australia and has been so for a continuous period exceeding 6 weeks.
Method statement
Step 1. Work out what each of the following amounts (described using the abbreviation used in Part 3.16 for the amount) would be on 20 September 2009, taking account of indexation under that Part on that day, if the Social Security and Other Legislation Amendment (Pension Reform and Other 2009 Budget Measures) Act 2009 had not been enacted:
(a) the amount that would be the pension MBR for a person who is a member of a couple (but not a member of an illness separated couple or respite care couple and not partnered (partner in gaol)) assuming that section 1195 did not apply on 20 September 2009;
(b) pension supplement for a person who is (and was on 1 July 2000) a member of a couple (but not a member of an illness separated couple or respite care couple and not partnered (partner in gaol)).
Step 2. Add up the amounts worked out under step 1.
Note 1: For member of a couple , partnered , illness separated couple , respite care couple and partnered (partner in gaol) see section 4.
Note 2: Subsection 7(3) is relevant to determining whether a person is residing in Australia.
Note 3: Section 1190 explains the abbreviations used in Part 3.16.
148 Rate of social security payments to partners of persons affected by clause 146
(1) This clause applies if clause 146 applies to a person who is a member of a couple and that clause affects the rate at which a social security pension is payable to the person.
(2) In working out the amount of a social security payment payable to a partner of the person, assume that the social security pension payable to the person is payable at the rate at which it would be payable if clause 146 had not been enacted.
149 Payment and income tax consequences of receiving social security pension at rate affected by clause 146
Application
(1) This clause applies if clause 146 affects the rate at which a social security pension is payable to a person.
Purpose
(2) The purpose of this clause is to ensure that the person is treated appropriately in relation to the payment, and income taxation, of the pension by modifying the operation of the social security law (and thus affecting the related income tax law) in relation to the person and the pension.
Note: This clause does not modify the operation of subsection 20A(4), which provides for working out the person's minimum pension supplement amount.
Pension supplement amount
(3) The social security law applies in relation to the person's pension as if the amount described in subparagraph 146(4)(a)(i), as affected by any indexation and any relevant reduction described in paragraph 146(4)(a), were an amount added under the pension supplement Module of the relevant Pension Rate Calculator (and therefore used to work out the rate of the pension).
Note 1: One effect of subclause (3) is that the amount is the person's pension supplement amount (as defined in subsection 23(1)).
Note 2: If that amount exceeds the person's pension supplement basic amount (as affected by subclause (4)), other effects of subclause (3) include the following:
(a) the excess being tax - exempt pension supplement under subsection 20A(6) of this Act;
(b) Part 2.25C (Quarterly pension supplement) of this Act applying, which may affect timing of payment of some of the pension under the Administration Act;
(c) the possibility of the minimum amount of fortnightly instalments of the pension being affected under section 43 of the Administration Act;
(d) telephone allowance not being payable because of section 1061R of this Act;
(e) utilities allowance not being payable because of section 1061T of this Act.
Note 3: Yet another effect of subclause (3) is that section 1210 will affect the operation of reductions of the maximum payment rate because of the income test and assets test.
Pension supplement basic amount
(4) The social security law applies in relation to the person's pension as if:
(a) each reference in the table in subsection 20A(5) to $507 were a reference to $14,814.80; and
(b) the reference in the table in subsection 20A(5) to $423.80 were a reference to $12,373.40.
Note 1: This affects the person's pension supplement basic amount.
Note 2: The provisions for indexing amounts in the table in subsection 20A(5) apply to the higher figures mentioned in this subclause.
Energy supplement
(5) If subclause 147(1) or (2) is relevant to the person, the social security law applies in relation to the person's pension as if:
(a) the energy supplement Module of the relevant Pension Rate Calculator were the same as Module C of Pension Rate Calculator A; and
(b) the person's energy supplement (if any) resulting from that Module were used to work out the rate of the person's pension.
Note 1: This energy supplement is included in the total worked out under paragraph 146(4)(a) (see subparagraph 146(4)(a)(ia)).
Note 2: This subclause causes Division 2 of Part 2.18A (Quarterly energy supplement) of this Act to apply. If quarterly energy supplement is payable, then no energy supplement will be available to be included in the total worked out under paragraph 146(4)(a) (see point 1064 - C1 of this Act).
Note 3: Other effects of this subclause include:
(a) the possibility of the minimum amount of fortnightly instalments of the pension being affected under section 43 of the Administration Act; and
(b) that section 1210 will affect the operation of reductions of the maximum payment rate because of the income test and assets test.
150 Persons exempt from requirement to be Australian residents to qualify for disability support pension
Paragraphs 94(1)(ea), 94A(1)(ja) and 95(1)(d) do not affect the qualification for disability support pension of:
(a) a person to whom the provisions mentioned in subclause 128(1) continue to apply as described in that subclause; or
(b) a person who is covered by a determination under clause 135.
Note: Those paragraphs are in Subdivision A of Division 1 of Part 2.3, which is about qualification for disability support pension.
No. 46, 1991
Compilation No. 222
Compilation date: 14 October 2024
Includes amendments: Act No. 38, 2024
This compilation is in 6 volumes
Volume 2: sections 540- 1061ZUC
Volume 3: sections 1061ZVAA- 1157
Volume 4: sections 1157A- 1263
Schedule 1A
Volume 5: Endnotes 1-4
Volume 6: Endnote 5
Each volume has its own contents
This compilation
This is a compilation of the Social Security Act 1991 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date ).
The notes at the end of this compilation (the endnotes ) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.
Self - repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Endnotes
Endnote 1--About the endnotes
Endnote 2--Abbreviation key
Endnote 3--Legislation history
Endnote 4--Amendment history