Law and policy
5.5 The legislative, policy and administrative framework of social security in Australia comprises the Social Security Act 1991 (Cth), the Social Security (Administration) Act 1999 (Cth) and the Social Security (International Agreements) Act 1999 (Cth).
5.6 In some circumstances, the Ministers responsible for the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) and the Department of Education, Employment and Workplace Relations (DEEWR) have the power to make determinations—either in writing or by legislative instrument—which, in effect, have the same legal force as if they were in social security legislation itself. The head of FaHCSIA and DEEWR—the Secretary, in each case—is occasionally given similar powers to make directions under social security legislation.
5.7 The Guide to Social Security Law provides the lens through which the legislation is to be implemented, by providing guidance to decision makers. Although not binding in law, it is a relevant consideration for the decision maker and, as such, is a significant aspect of the ‘legal frameworks’ considered in this Inquiry.
5.8 A further element of the policy framework is the electronic guidelines referred to as the ‘e-reference’ used by Centrelink. These are not publicly available.
5.9 The ALRC considers that there is a need for greater transparency, consistency and accountability in the way Centrelink deals with cases involving family violence. Consequently, where changes to Centrelink procedures are considered, recommendations are aimed at either social security legislation or the Guide to Social Security Law,rather than Centrelink’s e-reference, which is not publicly available.
5.10 In addition, the ALRC considers that including procedural information in the Guide to Social Security Law may promote awareness regarding the ways that family violence is relevant to the management of social security, and the purpose for family violence screening and Centrelink identification of customers who may be at risk.
5.11 Social security law is administered by the Department of Human Services (DHS), through Centrelink. Policy responsibility is spread between DEEWR—which carries responsibility for work age payments, such as Newstart Allowance and Youth Allowance; and FaHCSIA—which carries responsibility for all other payments, such as Disability Support Pension and Age Pension.
5.12 Centrelink customer service advisers are usually the first point of contact for people visiting a Centrelink office. Certain customers are referred to a Centrelink social worker in specific situations. Centrelink social workers can make an assessment about a person’s personal circumstances to assist with determinations for qualification and payability of social security payments. Centrelink social workers also exercise delegations for the ‘Youth Allowance—Unreasonable to Live At Home’ payment and have specific requirements for Parenting Payment, Carer Payment and Special Benefit.
Underlying principles of social security law
5.13 Australia’s social security system forms part of a wider structure that presumes a strong commitment by government to high levels of employment and includes social protections provided outside the social security system—such as a mandatory system of private superannuation, workers’ compensation, a national health care system, paid sick leave and other cash and in-kind welfare benefits and services such as personal tax concessions. Several principles underpin the social security framework in Australia: the responsibility to assist those in need; the concept of ‘mutual obligations’; and a person’s relationship status and residence.
5.14 First, the Australian social security system is based on the recognition of government and community responsibility to assist those in need—measured by reference to the income and assets of the applicant. Accordingly, an entitlement to social security is viewed as a right based on need, rather than as something to be ‘bought’ by paying a financial contribution akin to social insurance (which is the model in many other countries).
5.15 Secondly, the concept of ‘mutual obligations’ refers to the general principle that it is fair and reasonable to expect unemployed people receiving income support to do their best to find work, undertake activities that will improve their skills and increase their employment prospects and, in some circumstances, contribute something to their community in return for receiving social security payments and entitlements. This concept builds upon the notion that unemployed people have an obligation to seek work in return for social security payments—an enduring aspect of the Australian social security system.
5.16 Thirdly, despite welfare reform that has focused on ‘mutual obligations’ of the individual, ‘it remains the bedrock of Australian social security law that a client’s relationship status determines eligibility and rates of payment’. This is reflected, for example, in the relevance of the concept of ‘member of a couple’—and that a person who is a member of a couple receives a lower social security payment than one who is single. The rationale behind this principle was provided by the Minister of Social Security in 1974:
The reason for granting a higher rate of pension to a single person is that a married couple can share the costs of day-to-day living whereas a single person needs a relatively higher rate in order to enjoy the same living standard.
5.17 Finally, because payments are not contributory, coverage of the system is universal, subject to a range of residence requirements. Some scholars have suggested that these requirements are considered necessary to preserve scarce social security resources for those ‘settled’ within the Australian community, reflecting the theme of ‘fairness’ identified in Chapter 2.
Qualification and payability
5.18 Section 37 of the Social Security (Administration) Act provides that a claim for a social security payment must be granted if the person is qualified and the payment is payable, creating a two stage process—qualification and payability. A person is qualified to receive a payment when all the qualification criteria set out in the Social Security Act are met. Qualification criteria may include age and residence requirements as well as practical issues such as whether a person has made a claim.
5.19 Once a decision is made that a person qualifies for a payment, then there is the separate issue of whether it is payable and, if so, the rate at which it is payable. Payability may be affected by a number of factors including income and assets tests, waiting periods, or whether a person is receiving another social security payment.
 See, eg, Social Security Act 1991 (Cth) s 25.
 Ibid s 3A.
Stevens and Secretary, Department of Family and Community Services  AATA 1137.
 FaHCSIA, Guide to Social Security Law <www.fahcsia.gov.au/guides_acts/> at 1 November 2011, [126.96.36.199].
 Ibid, [188.8.131.52].
 A Herscovitch and D Stanton, ‘History of Social Security in Australia’ (2008) 80 Family Matters 51;
P Whiteford and G Angenent, The Australian System of Social Protection: An Overview (2002), prepared for the Department of Family and Community Services.
 A Herscovitch and D Stanton, ‘History of Social Security in Australia’ (2008) 80 Family Matters 51.
 FaHCSIA, Guide to Social Security Law <www.fahcsia.gov.au/guides_acts/> at 1 November 2011, [1.1.M.160].
 T Carney and P Hanks, Social Security in Australia (1994).
 L Sleep, K Tranter and J Stannard, ‘Cohabitation Rule in Social Security Law: The More Things Change the More They Stay the Same’ (2006) 13 Australian Journal of Administrative Law 135.
Debates, House of Representatives, 20 March 1974, 668 (Bill Hayden—Minister for Social Security).
 B Saul, Waiting for Dignity in Australia: Migrant Rights to Social Security and Disability Support under International Human Rights Law (2010).
 FaHCSIA, Guide to Social Security Law <www.fahcsia.gov.au/guides_acts/> at 1 November 2011, [1.1.Q.10].