SOCIAL SECURITY AMENDMENT (SUPPORTING AUSTRALIAN VICTIMS OF TERRORISM OVERSEAS) BILL 2012

i Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011

No. , 2011

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Amendments

Part 1--Main amendments

Social Security Act 1991

Social Security (Administration) Act 1999

Part 2--Other amendments

A New Tax System (Family Assistance) Act 1999

Health and Other Services (Compensation) Act 1995

Income Tax Assessment Act 1997

Safety, Rehabilitation and Compensation Act 1988

Social Security Act 1991

Social Security (Administration) Act 1999

Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011

No. , 2011 1

A Bill for an Act to provide support for Australian

victims of terrorist acts occurring overseas, and for

related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Social Security Amendment

(Supporting Australian Victims of Terrorism Overseas) Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill

2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendments Schedule 1

Main amendments Part 1

Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011

No. , 2011 3

Schedule 1--Amendments

Part 1--Main amendments

Social Security Act 1991

1 Subsection 23(1)

Insert:

Australian Victim of Terrorism Overseas Payment or AVTOP

means a payment under Part 2.24AA.

2 Subsection 23(1)

Insert:

AVTOP: see Australian Victim of Terrorism Overseas Payment.

3 Subsection 23(1)

Insert:

AVTOP Principles means the AVTOP Principles made by the

Minister under section 1061PAF.

4 Subsection 23(1)

Insert:

close family member has the meaning given by subsection

1061PAA(4).

5 Subsection 23(1)

Insert:

declared overseas terrorist act means a terrorist act in respect of

which there is a declaration under subsection 35B(1).

6 Subsection 23(1)

Insert:

primary victim of a declared overseas terrorist act has the meaning

given by subsection 1061PAA(2).

Schedule 1 Amendments

Part 1 Main amendments

4 Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill

2011 No. , 2011

7 Subsection 23(1)

Insert:

secondary victim of a declared overseas terrorist act has the

meaning given by subsection 1061PAA(3).

8 Subsection 23(1)

Insert:

terrorist act has the same meaning as in subsection 100.1(1) of the

Criminal Code.

9 After section 35A

Insert:

35B Declared overseas terrorist act

(1) The Prime Minister may, by legislative instrument, declare that a

terrorist act that occurs outside Australia is a declared overseas

terrorist act.

(2) If the Prime Minister makes a declaration under subsection (1),

then the Minister is taken to have made a determination under

subsection 36(1) that the terrorist act is a major disaster.

10 At the end of subsection 36(1)

Add:

Note:

If the Prime Minister makes a declaration under subsection 35B(1)

that a terrorist act is a declared overseas terrorist act, the Minister is

taken to have made a determination under subsection (1) of this

section that the terrorist act is a major disaster (see subsection

35B(2)).

11 After Part 2.24

Insert:

Amendments Schedule 1

Main amendments Part 1

Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011

No. , 2011 5

Part 2.24AA--Australian Victim of Terrorism

Overseas Payment

Division 1--Qualification for Australian Victim of

Terrorism Overseas Payment

1061PAA Qualification for Australian Victim of Terrorism

Overseas Payment

Qualification for AVTOP

(1) A person is qualified for an Australian Victim of Terrorism

Overseas Payment if:

(a) the person is a primary victim or a secondary victim of a

declared overseas terrorist act; and

(b) the person and the person's close family members were not

involved in the commission of the terrorist act; and

(c)

the

person:

(i) is an Australian resident on the day the terrorist act

occurred; or

(ii) is covered by a determination under subsection (6).

Note:

For declared overseas terrorist act see section 35B.

Meaning of primary victim

(2) A person is a primary victim of a declared overseas terrorist act if

the person:

(a) was in the place where the terrorist act occurred; and

(b) was harmed (within the meaning of the Criminal Code) as a

direct result of the terrorist act.

Meaning of secondary victim

(3) A person is a secondary victim of a declared overseas terrorist act

if the person is a close family member of a person who:

(a) was in the place where the terrorist act occurred; and

(b) died, before the end of 2 years starting on the day the terrorist

act occurred, as a direct result of the terrorist act.

Schedule 1 Amendments

Part 1 Main amendments

6 Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill

2011 No. , 2011

Meaning of close family members

(4) The following are a person's close family members:

(a) the person's partner;

(b) the person's child;

(d) the person's sibling;

(e) the person's legal guardian.

Meaning of involved

(5) A person was involved in the commission of a declared overseas

terrorist act if the person:

(a) aided, abetted, counselled or procured the terrorist act; or

(b) induced the terrorist act, whether through threats or promises

or otherwise; or

in, or a party to, the terrorist act; or

(d) conspired with others to effect the terrorist act.

Ministerial determination

(6) The Minister may, by legislative instrument, determine a specified

class of persons for the purposes of subparagraph (1)(c)(ii).

1061PAB Whether a person can be qualified for more than one

AVTOP in relation to the same terrorist act

Only one AVTOP for primary victim as primary victim

(1) A person cannot be qualified as a primary victim for more than one

AVTOP in relation to the same declared overseas terrorist act.

Only one AVTOP for secondary victims for same family member

(2) A person cannot be qualified as a secondary victim for more than

one AVTOP in relation to the same close family member.

When victims can qualify for more than one AVTOP

(3) A person can be qualified for more than one AVTOP in relation to

the same declared overseas terrorist act if the person:

Amendments Schedule 1

Main amendments Part 1

Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011

No. , 2011 7

(a) is a primary victim and a secondary victim of the terrorist act

(whether as a secondary victim in relation to one, or more

than one, close family member); or

(b) is a secondary victim of the terrorist act in relation to more

than one close family member.

Division 2--Payability of Australian Victim of Terrorism

Overseas Payment to secondary victims

1061PAC When AVTOP for secondary victims is not payable

If:

(a) a person makes a claim for an AVTOP as a secondary victim

in relation to a close family member who has died as a direct

result of a declared overseas terrorist act; and

(b)

either:

(i) before the claim was made, one or more persons were

granted an AVTOP as secondary victims in relation to

the close family member; or

(ii) the Secretary had notified the person under subsection

35B(2) of the Administration Act of the person's

entitlement to make a claim, but the person did not

make the claim before the day specified in the notice;

then the AVTOP is not payable to the person.

Division 3--Amount of Australian Victim of Terrorism

Overseas Payment

1061PAD Amount of AVTOP for a primary victim

(1) The Secretary must determine the amount of an AVTOP payable to

a person who is a primary victim of a declared overseas terrorist

act.

(2) The determination must be made in accordance with subsection (3)

and the AVTOP Principles under section 1061PAF.

(3) The amount must not exceed $75,000.

Schedule 1 Amendments

Part 1 Main amendments

8 Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill

2011 No. , 2011

1061PAE Amount of AVTOP for a secondary victim

Secretary to determine amount of AVTOP

(1) The Secretary must determine the amount of an AVTOP (the

relevant AVTOP) payable to a person who is a secondary victim in

relation to a close family member who has died as a direct result of

a declared overseas terrorist act.

(2) The determination must be made in accordance with

subsections (3) to (5) and the AVTOP Principles under

section 1061PAF.

(3) The amount must not exceed $75,000.

Limit on total payments in relation to close family member

(4) If the person is not the only secondary victim who has made a

claim as a secondary victim in relation to the close family member,

then, when working out the amount of the relevant AVTOP, the

Secretary must ensure that the sum of all the AVTOPs (including

the relevant AVTOP) that are paid in relation to the close family

member does not exceed $75,000.

Limit on total payments to secondary victim

(5)

If:

(a) the person is also a secondary victim of the terrorist act in

relation to one or more other close family members; and

(b) an AVTOP has been paid to the person in relation to any of

those other family members;

then, when working out the amount of the relevant AVTOP, the

Secretary must ensure that the sum of all the AVTOPs (including

the relevant AVTOP) that are paid to the person as a secondary

victim of the terrorist act does not exceed $75,000.

1061PAF AVTOP Principles

(1) The Minister must, by legislative instrument, determine the

principles (the AVTOP Principles) to be applied for the purposes

of determining the amount of an AVTOP payable to a person in

relation to a declared overseas terrorist act.

Amendments Schedule 1

Main amendments Part 1

Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011

No. , 2011 9

(2) Without limiting subsection (1), the AVTOP Principles may

provide that the following factors are to be taken into account

when determining the amount of the payment:

(a) for a primary victim:

(i) the nature of the injury or disease suffered as a direct

result of the terrorist act; and

(ii) the duration of the injury or disease; and

(iii) the impact of the injury or disease on the person's

bodily and mental functions; and

(iv) the impact of the injury or disease on the person's life;

and

(v) the likelihood of the person suffering future loss, injury

or disease as a direct result of the terrorist act; and

(vi) the circumstances in which the injury or disease was

incurred; and

(vii) whether the person was directed by an official of

Australia or a foreign country not to go to the place

where the terrorist act occurred;

(b) for a secondary victim in relation to a close family member

who has died:

(i) whether the person was dependant on the close family

member; and

(ii) the nature of the relationship between the person and the

close family member; and

(iii) the circumstances in which the close family member

died; and

(iv) whether the close family member was directed by an

official of Australia or a foreign country not to go to the

place where the terrorist act occurred; and

(v) whether there are other persons who have made a claim

for an AVTOP as a secondary victim in relation to the

close family member; and

(vi) if there are such other secondary victims and the person

and each of the other secondary victims agree on the

amount of the AVTOP that each should be paid--that

agreement; and

(vii) if there are such other secondary victims and the person

and each of the other secondary victims have not agreed

on the amount of the AVTOP that each should be

Schedule 1 Amendments

Part 1 Main amendments

10 Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill

2011 No. , 2011

paid--whether the person has also made a claim as a

secondary victim of the terrorist act in relation to

another close family member;

(i) whether there was travel advice on an Australian

government website advising against travelling to the

foreign country, region or place where the terrorist act

occurred; and

(ii) whether the person has been paid or is likely to be paid

an amount by the Commonwealth, a State, a Territory, a

foreign country or any other person or entity in relation

to the terrorist act.

1061PAG Consultation on the AVTOP Principles

(1) Before determining the AVTOP Principles under section 1061PAF,

the Minister must consult with representatives of the following

groups (the consultation groups):

(a) victims of overseas terrorist acts and their families;

(b) community or welfare organisations;

(c)

health

professionals;

(d) international humanitarian agencies;

(e) any other persons the Minister considers appropriate to

consult.

(2) The Minister must also consult representatives of the consultation

groups each year after the year in which the AVTOP Principles

commence.

(3) A failure to consult as required by this section does not affect the

validity of the AVTOP Principles.

Social Security (Administration) Act 1999

12 After Subdivision FA of Division 1 of Part 3

Insert:

Amendments Schedule 1

Main amendments Part 1

Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011

No. , 2011 11

Subdivision FB--Time limit for claims for AVTOP

27B Time limit for claims for AVTOP

(1) A claim for an AVTOP by a primary victim of a declared overseas

terrorist act must be lodged within 2 years after the day the

declaration is made under subsection 35B(1) of the 1991 Act.

(2) A claim for an AVTOP by a secondary victim of a declared

overseas terrorist act must be lodged within 12 months after the

day the close family member to whom the claim relates died.

(3) However, a claim may be lodged after the period referred to in

subsection (1) or (2) if the Secretary is satisfied that:

(a) there are special circumstances applying to the person's

claim that justify a late lodgment; and

(b) the claim is lodged within a reasonable period having regard

to those circumstances.

13 At the end of Subdivision J of Division 1 of Part 3

Add:

35B Secondary victim claims for AVTOP

(1) If a person makes a claim for an AVTOP as a secondary victim in

relation to a close family member who has died, the Secretary must

make reasonable inquiries as to whether there are other persons (a

potential claimant) who may also qualify for an AVTOP as a

secondary victim in relation to the same close family member.

(2) If the Secretary considers there are potential claimants, the

Secretary must give each of them a written notice stating that:

(a) he or she may make a claim for an AVTOP as a secondary

victim in relation to the close family member; and

(b) he or she must make a claim before the day (the claim due

day) specified in the notice; and

AVTOP in relation to the close family member will not be

payable to him or her.

(3) The claim due day must be at least 30 days after the day the notice

is given to the potential claimant.

Schedule 1 Amendments

Part 1 Main amendments

12 Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill

2011 No. , 2011

(4) If the Secretary is satisfied that it is appropriate to do so, the

Secretary may change the claim due day to a later day.

(5) If the Secretary changes the claim due day under subsection (4),

then:

(a) the Secretary must change the claim due day for each of the

potential claimants to the new claim day; and

(b) the Secretary must give each of the potential claimants a

written notice of the new claim due day; and

notice under subsection (2) for the purposes of subparagraph

1061PAC(b)(ii) of the 1991 Act.

14 At the end of section 36

Add:

(3) If more than one person makes a claim for an AVTOP as a

secondary victim of a declared overseas terrorist act in relation to

the same close family member, the Secretary must determine the

claims at the same time.

Amendments Schedule 1

Other amendments Part 2

Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011

No. , 2011 13

Part 2--Other amendments

A New Tax System (Family Assistance) Act 1999

15 After paragraph 7(c) of Schedule 3

Insert:

(ca) an Australian Victim of Terrorism Overseas Payment under

Part 2.24AA of the Social Security Act 1991;

Health and Other Services (Compensation) Act 1995

16 After paragraph 4(2)(b)

Insert:

(ba) a payment of an Australian Victim of Terrorism Overseas

Payment under Part 2.24AA of the Social Security Act 1991;

Income Tax Assessment Act 1997

17 After subsection 52-10(1J)

Insert:

(1K) Australian Victim of Terrorism Overseas Payment under

Part 2.24AA the Social Security Act 1991 is exempt from income

tax.

18 Section 52-40 (after table item 2AA)

Insert:

2AB Australian

Victim of

Terrorism

Overseas

Payment

Part 2.24AA

Not applicable

Safety, Rehabilitation and Compensation Act 1988

19 Subsection 48(9)

Repeal the subsection, substitute:

Schedule 1 Amendments

Part 2 Other amendments

14 Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill

2011 No. , 2011

(9) In this section, damages does not include the following:

(a) an amount of damages paid to the Commonwealth in

accordance with section 76 of the Veterans' Entitlements Act

1986;

(b) an Australian Victim of Terrorism Overseas Payment under

Part 2.24AA of the Social Security Act 1991.

Social Security Act 1991

20 Subsection 14A(1) (after paragraph (da) of the definition of

liquid assets)

Insert:

(db) an amount of an AVTOP that the person received, if the

Secretary is satisfied that the length of time since receiving

the payment is still reasonable in the circumstances; or

21 Section 19B (after paragraph (g) of the definition of liquid

assets)

Insert:

; or (h) an amount of an AVTOP that the person received, if the

Secretary is satisfied that the length of time since receiving

the payment is still reasonable in the circumstances.

22 Subsection 23(1)

Insert:

involved in the commission of a declared overseas terrorist act has

the meaning given by subsection 1061PAA(5).

Social Security (Administration) Act 1999

23 At the end of subsection 16(6)

Add:

; or (c) claims for AVTOP.

24 After subsection 31(1)

Insert:

(1A) Section 29 does not apply to a claim for an AVTOP.

Amendments Schedule 1

Other amendments Part 2

Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011

No. , 2011 15

25 Subsection 36(1)

Omit "subsection (2)", substitute "this section".

26 After section 46A

Insert:

46B Payment of AVTOP

(1) Unless the Secretary makes a determination under subsection (2), a

person's AVTOP is to be paid in accordance with section 47.

(2) If the Secretary considers that it is appropriate for a person's

AVTOP to be paid by instalments, the Secretary may determine

that the person's AVTOP is to be so paid.

27 Subsection 47(1) (after paragraph (aa) of the definition of

lump sum benefit)

Insert:

(aaa) AVTOP, except where the Secretary has made a

determination under subsection 46B(2); or

Commonwealth of Australia Bills

SOCIAL SECURITY AMENDMENT (SUPPORTING AUSTRALIAN VICTIMS OF TERRORISM OVERSEAS) BILL 2012