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 people 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 Importantly, providing mechanisms for the appointment of formal supporters and representatives under the Social Security (Administration) Act should not diminish the involvement or respect for, informal support, including in relation to decision-making.
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’.
6.14 With respect to issues of liability, a principal is protected against liability for the actions of their correspondence nominee, and 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
Proposal 6–1 The Social Security (Administration) Act 1999 (Cth) should be amended to include supporter and representative provisions consistent with the Commonwealth decision-making model.
6.15 To ensure compliance with the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the National Decision-Making Principles, and given concerns about the current nominee provisions, the ALRC proposes 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 encouraged 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 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 broadly and in the context of social security law.
6.18 While, broadly speaking, the role played by correspondence nominees is 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 intend to 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.
Objects and principles
6.20 Section 8 of the Social Security (Administration) Act contains general principles of administration. However, there are no principles relating to decision-making. The ALRC suggests 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.
6.21 Under the Commonwealth decision-making model, a principal would be entitled to appoint one or more supporters to support them to make social security-related decisions. 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.
6.22 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 people 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 people with disability, given one of the potential roles of a supporter is to handle the relevant personal information of the principal.
6.23 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 formally retains ultimate decision-making responsibility. The role of a supporter is to support the principal to make a decision, rather than the supporter themselves making a decision.
6.24 As a result, 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’.
6.25 In addition, a principal would be entitled to revoke 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.
6.26 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.
6.27 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 fully supported decision-making.
6.28 Chapter 4 discusses possible alternative appointment mechanisms in these circumstances, including appointment by a court, tribunal or other body at a Commonwealth level or, in limited circumstances, by Centrelink. However, concerns expressed in relation to the powers of the CEO of the National Disability Insurance Agency to appoint a nominee may also apply to the similar powers of Centrelink delegates.
6.29 The key amendment to the Social Security (Administration) Act, 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.
6.30 Finally, the ALRC proposes that the appointment and conduct of representatives should be subject to appropriate and effective safeguards. The ALRC does not intend to be overly prescriptive in proposing what safeguards should apply under social security law. However, these safeguards might include: mechanisms for review and appeal of the appointment of representatives; potential monitoring or auditing of representatives by Centrelink; and the adoption of existing safeguards. For example, one of the existing safeguards that could apply to representatives is the power of DHS to require provision of a statement from payment nominees outlining expenditure of the principal’s payments by the nominee.
Education, training and guidance
6.31 The ALRC considers education, training and guidance for all parties involved in the decision-making under social security law is of vital importance in ensuring the effective operation of this model of decision-making. This is particularly important in light of stakeholder concerns about existing difficulties in navigating the social security system, interacting with Centrelink, and obtaining information.
6.32 Accordingly, the ALRC considers it is necessary for Centrelink to develop and deliver consistent, regular and targeted education and training as well as associated guidance for:
supporters and representatives, and potential supporters and representatives;
Centrelink payment recipients who require decision-making support; and
Centrelink employees and others involved decision-making or engagement with Centrelink customers.
6.33 The focus of education, training and guidance 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.
6.34 Stakeholders also raised a range of systemic issues concerning social security. Briefly, stakeholders consistently emphasised the complexity of the social security system and the difficulties people 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 people with disability who are Aboriginal or Torres Strait Islander, from a culturally and linguistically diverse community, or who live in a rural, regional or remote community.
6.35 While these are important issues in the lives of people with disability, the issues do not relate directly to individual decision-making, and the ALRC does not intend to make proposals 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 (family tax benefit, child care) in A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) Pt 8 ss 219TA—219TR.
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; see also, 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.
See, eg, Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance, Submission 20.
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.
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.
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).