6.6 The legislative, policy and administrative framework for social security in Australia is set out in the Social Security Act 1991 (Cth), the Social Security (Administration) Act 1999 (Cth) and the Social Security (International Agreements) Act 1999 (Cth). This section discusses how the Commonwealth decision-making model may be applied in social security law.
Individual decision-making in social security
6.7 There are three key decision-making mechanisms in the context of social security law: autonomous decision-making by social security payment recipients; informal supported decision-making; and substitute decision-making by nominees.
6.8 In many circumstances, family members, friends and others may provide informal support to persons with disability to make social security-related decisions without any formal recognition or appointment. The significant role of ‘informal and supportive decision-making arrangements’ in the context of social security was emphasised by a number of stakeholders.
6.9 It is important that providing mechanisms for the appointment of formal supporters and representatives under the Social Security (Administration) Act should not diminish the involvement of, or respect for, informal support.
6.10 The Social Security (Administration) Act contains a nominee scheme, and was the model for the nominee scheme under the National Disability Insurance Scheme Act 2013 (Cth). Specifically, the Act makes provision for a ‘principal’ to authorise another person or organisation to enquire or act on the person’s behalf when dealing with the Department of Human Services (DHS). There are two types of arrangements:
- correspondence nominees—a person or organisation authorised to act and make changes on the principal’s behalf; and
- payment nominees—a person or organisation authorised to receive a principal’s payment into an account maintained by the nominee.
6.11 Only one person can be appointed for each arrangement; however the same person can be appointed as both correspondence and payment nominee.
6.12 A principal may appoint their own nominee. However, where a question arises in relation to a principal’s capacity to consent to the appointment of a nominee, or any concerns arise in relation to an existing arrangement, DHS must ‘investigate the situation’. The Guide to Social Security Law provides that, in circumstances where ‘a principal is not capable, for example, due to an intellectual/physical constraint … of consenting to the appointment of a nominee’, a delegate may appoint one. The Guide also provides that ‘where a principal has a psychiatric disability, a nominee can be appointed in these instances where there is a court-appointed arrangement such as a Guardianship Order’.
6.13 Nominees have a range of functions and responsibilities. The primary duty of nominees is to ‘act at all times in the best interests of the principal’.
6.14 With respect to issues of liability, a principal is protected against liability for the actions of their correspondence nominee. Correspondence nominees are not subject to any criminal liability under the social security law in respect of: any act or omission of the principal; or anything done, in good faith, by the nominee in his or her capacity as nominee. However, if a correspondence nominee fails to satisfy a particular requirement, the principal is taken to have failed to comply with that requirement. This may then have adverse consequences in terms of compliance and payments.
The Commonwealth model and social security law
Recommendation 6–1 The Social Security (Administration) Act 1999 (Cth) should be amended to include provisions dealing with supporters and representatives consistent with the Commonwealth decision-making model.
6.15 To ensure better compliance with the United Nations Convention on the Rights of Persons with Disabilities (CRPD), the ALRC recommends that the Social Security (Administration) Act be amended in the light of the National Decision-Making Principles and the Commonwealth decision-making model.
6.16 The application of the Commonwealth decision-making model in social security law would contribute to the development of consistent decision-making structures across key Commonwealth areas of law. The desirability of such consistency was noted by stakeholders, such as the Law Council of Australia.
6.17 Importantly, providing mechanisms for the appointment of formal supporters and representatives under the Social Security (Administration) Act should not diminish the involvement of, or respect for, informal support, including in relation to decision-making. However, as outlined in Chapter 4, the ALRC considers there are significant benefits to making provision for formal supported decision-making—a view shared by a range of stakeholders both generally and in the specific context of social security law.
6.18 While the role played by correspondence nominees is broadly analogous to the role envisaged for supporters under the Commonwealth decision-making model, the existing nominee system does not make provision for formal supported decision-making. Accordingly, significant amendments would need to be made to the Social Security (Administration) Act to incorporate the Commonwealth decision-making model.
6.19 The ALRC does not prescribe a comprehensive new decision-making scheme for social security law. However, the ALRC outlines below some key ways in which the Commonwealth decision-making model might operate in the context of social security.
6.20 In doing so, the ALRC recognises the importance of informal arrangements in the context of social security. NACLC observed that, in the experience of community legal centres, many clients with disability have a preference for informal arrangements:
Often, people are apprehensive about invoking more formal, costly and potentially disempowering personal decision-making systems that involve state and territory guardians and administrators.
6.21 While supportive of the Commonwealth decision-making model, NACLC suggested that the ALRC consider ways in which to ‘ensure that the application of the Commonwealth decision-making model will not have unintended consequences such as the over-formalisation of arrangements and could more fully articulate how the provision of statutory supported decision-making mechanisms can co-exist with informal support arrangements, including in relation to decision-making’.
Objects and principles
6.22 Section 8 of the Social Security (Administration) Act contains general principles of administration. However, there are no principles relating to decision-making. The ALRC considers that s 8 could be amended to incorporate principles relating to decision-making and supported decision-making, or that principles could be inserted into the part of the Act which will contain provisions relating to supporters and representatives.
6.23 Under the Commonwealth decision-making model, a principal would be entitled to appoint one or more supporters to support them to make decisions related to social security. Ultimate decision-making power and responsibility would remain with the principal. Centrelink would need to recognise any decision made by a principal with the assistance of a supporter as being the decision of the principal.
6.24 A principal may appoint whomever they wish as their supporter including, for example, a family member, friend or carer. In the context of social security, the ability to appoint a supporter may also assist advocacy organisations to support persons with disability. For example, stakeholders such as the Multicultural Disability Advocacy Association of NSW emphasised the need for an ‘authority form’ to facilitate provision of support to clients from culturally and linguistically diverse or non-English speaking backgrounds to engage with Centrelink. It may also address some of the privacy-related difficulties encountered by those who support persons with disability, given one of the potential roles of a supporter is to handle the relevant personal information of the principal.
6.25 In many respects, correspondence nominees under the current system reflect the role potentially played by a supporter, including making enquiries and obtaining information to assist the principal, completing forms, and receiving mail. The key difference under the model would be that the principal would formally retain ultimate decision-making responsibility. The role of a supporter, under the model, is to support the principal to make a decision, rather than the supporter themselves making a decision.
6.26 Rather than having a duty to act in the best interests of the principal, supporters would have duties to: support the principal to express their will and preferences; act in a manner promoting the personal, social, financial, and cultural wellbeing of the principal; act honestly, diligently and in good faith; support the principal to consult with other relevant people; and develop the capacity of the principal to make their own decisions. These duties may address concerns expressed by stakeholders that the current nominee provisions ‘are generally disempowering of the person with the disability, as they place no obligation on a nominee to act in ways that genuinely involve the person or that assist them to exercise their legal capacity’.
6.27 In addition, a principal would be entitled to terminate the appointment of a supporter at any time. This differs from the current system, under which there does not appear to be legislative provision for a principal to request cancellation of a nominee arrangement, an issue raised with concern by a number of stakeholders.
6.28 Consistent with the Commonwealth decision-making model, a principal would also be entitled to appoint a representative to support them to make social security related decisions.
6.29 There may also be other circumstances in which a representative might be appointed—for example, where a person may not be in a position to appoint their own representative, but requires full support in decision-making.
6.30 Chapter 4 discusses possible appointment mechanisms, including appointment by Commonwealth agency heads or delegates, in confined circumstances. Concerns expressed in relation to the powers of the Chief Executive Officer of the National Disability Insurance Agency to appoint a nominee, discussed in Chapter 4, may apply to the similar powers of Centrelink delegates.
6.31 The key amendment applying the Commonwealth decision-making model with respect to representatives, would be to provide that representatives have a duty to consider the will, preferences and rights of the principal. This would replace the current duty of nominees to act in the best interests of the principal contained in the Social Security (Administration) Act.
6.32 Finally, this would require that the appointment and conduct of representatives be subject to appropriate and effective safeguards. In relation to social security law, these safeguards might include: mechanisms for review and appeal of the appointment of representatives; potential monitoring or auditing of representatives by Centrelink; and the retention of existing safeguards. For example, the power of DHS to require the provision of a statement from a payment nominee outlining expenditure of the principal’s payments by the nominee, could be applied to representatives.
Guidance and training
6.33 The ALRC considers guidance and training for all parties involved in decision-making under social security law is important in ensuring the effective operation of this model of decision-making. This is particularly so in the light of stakeholder concerns about existing difficulties in navigating the social security system, interacting with Centrelink, and obtaining information.
6.34 Accordingly, the ALRC considers it is necessary for Centrelink to develop and deliver guidance and training for:
- Centrelink payment recipients who require decision-making support;
- supporters and representatives; and
- Centrelink employees and others involved decision-making or engagement with customers.
6.35 The focus of guidance and training could include topics such as: the introduction of the supporter and representative model under social security law and differences between the new model and existing nominee provisions; interaction with state and territory decision-making systems; and supported decision-making in the context of social security.
6.36 Stakeholders also raised a range of systemic issues concerning social security. Stakeholders consistently emphasised the complexity of the social security system and the difficulties persons with disability face in navigating the system; difficulties arising in relation to eligibility, participation requirements and the consequences of breach of certain requirements; and appeal and review processes. Stakeholders also highlighted the particular difficulties for persons with disability who are Aboriginal or Torres Strait Islanders, from a culturally and linguistically diverse community, or who live in a rural, regional or remote community.
6.37 While these are important issues in the lives of persons with disability, the issues do not relate directly to individual decision-making, and the ALRC therefore does not make recommendations in these areas.
Social Security (Administration) Act 1999 (Cth) s 3 defines social security law to include these three Acts. There are equivalent provisions for family assistance (including family tax benefit and child care) in A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) pt 8 ss 219TA—219TR.
See, eg, Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance, Submission 20.
A ‘principal’ for the purposes of the nominee provisions is a social security payment recipient who has had a nominee appointed to receive either correspondence and/or payments on their behalf: Social Security (Administration) Act 1999 (Cth) s 123A.
Social security law is administered by the Department of Human Services (DHS) through Centrelink.
Social Security (Administration) Act 1999 (Cth) ss 123C, 123H; Department of Social Services, Guide to Social Security Law (2014) [8.52], [8.53].
Social Security (Administration) Act 1999 (Cth) ss 123B, 123F; Department of Social Services, Guide to Social Security Law (2014) [8.5.1], [8.5.3].
Social Security (Administration) Act 1999 (Cth) s 123D(1).
Department of Social Services, Guide to Social Security Law (2014) [8.5.1], [8.5.2].
The Guide to Social Security Law, produced by the Department of Social Services provides guidance to decision-makers in implementing this legislation: Department of Social Services, Guide to Social Security Law (2014).
‘In these cases, a delegate may appoint a nominee on behalf of the principal, with attention to supporting evidence, and where the delegate is fully satisfied that the nominee is required and will act in the principal’s best interests. The decision made by the delegate to appoint a nominee in these circumstances must be fully documented’: Ibid [8.5.1]–[8.5.2].
Social Security (Administration) Act 1999 (Cth) ss 123H–123L, 123O.
Ibid s 123O.
Ibid ss 123M, 123N.
See, eg, Ibid s 123J.
Law Council of Australia, Submission 83.
See, eg, in relation to supported decision-making and social security law: Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance, Submission 20.
Some stakeholders expressed support for the proposals in the Discussion Paper: see, eg, National Association of Community Legal Centres, Submission 127; National Mental Health Consumer & Carer Forum, Submission 100.
National Association of Community Legal Centres, Submission 127.
MDAA, Submission 43.
Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance, Submission 20.
Section 123E of the Social Security (Administration) Act 1999 (Cth) outlines the specific power to revoke a nominee appointment, but does not appear to make provision for a request by a principal. See, eg, Law Council of Australia, Submission 83.
National Association of Community Legal Centres, Submission 127. For powers see Department of Social Services, Guide to Social Security Law (2014) [8.5.1]–[8.5.2].
Social Security (Administration) Act 1999 (Cth) s 123L. It is a strict liability offence not to comply which attracts a penalty of 60 penalty units. See also Department of Social Services, Guide to Social Security Law (2014) [8.5.3].
See, eg, Legal Aid Qld, Submission 64; Vicdeaf, Submission 56; Central Australian Legal Aid Service, Submission 48; MDAA, Submission 43; Equal Opportunity Commission of South Australia, Submission 28; Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance, Submission 20. See also National People with Disabilities and Carers Council, Shut Out: The Experience of People with Disabilities and Their Families in Australia (2009).