Australian Civil Liberties Union
Your Rights 2005
COMPENSATION AND PENSIONS
Social Security Pensions and Benefits, Workers’ Compensation, Compensation for Motor Accident Victims. Family Tax Initiative. Compensation for Criminal Attacks, see Chapter 13.
SOCIAL SECURITY PAYMENTS
Age, Disability Support, and Wife’s Pension, Sole Parent, Carer Payment, Widow Allowance, Overseas eligibility, Residential requirements.
An Age Pension may be paid to a man aged 65 or more or a woman aged 60 or more. Since 1 July 1995, the age at which women can get Age Pension has begun to change. The change from 60 to 65 years (the same age as for men) is being introduced gradually over about 20 years. Nothing will change if you turned 60 before 1 July 1995.
Disability Support Pension may be paid to a person aged 16 or more who is unable to work for at least the next 2 years as result of an incapacity, or who is permanently blind
AWife’s Pension may be paid to the wife of an Age or Disability Support pensioner.
A Sole Parents Pension may be paid to a single person bringing up a dependent child aged under 16, or to a married person living separately and apart from his/her partner, or to a person left caring for a child where the other parent is unable to live at home on an indefinite basis due to illness.
A Carer Payment may be paid to a person who is providing personal care and attention at home to a severely handicapped Age or Disability Support pensioner.
Widow’s Allowance. Widow Allowance is a Social Security payment for women who lose their partner (through death, divorce or separation) after they turn 50 and who have not worked recently.Widow Allowance is paid at the same rate as Newstart Allowance but there is no need to look for work or do training.
Pensions income and assets test. Social Security pensions are assessed under either an income test or an assets test-not both.The test which produces the lower rate of pension will be the one applied. However, age and invalid pensions for permanently blind persons generally are not subject to an income test or assets test. Family Payment may be made for any dependent children and pensioners may also receive Rent Assistance if they pay rent or board.
Overseas eligibility. Payments will usually continue if a pensioner goes overseas for a visit or to live. Newstart Allowance (see below) cannot be paid during an absence from Australia. Sole Parent Pension (12 months) and other payments may only be paid for a limited period. Pensioners who are going overseas for more than 6 months must obtain a pre-departure certificate from Centrelink. If the period overseas is for 12 months or more the payment may be sent to an overseas address. Australia has international Social Security Agreements with the United Kingdom, New Zealand, Italy, Canada, Spain, Malta, Ireland,The Netherlands, Portugal,Austria and Cyprus.
Newstart Allowance, Sickness Allowance and Special benefits.
Newstart Allowance may be paid to unemployed people who have been registered as unemployed with the CES for 12 months or less, if they are willing and able to work and looking for a job.
Sickness Allowance may be paid to people who suffer loss of income because temporary sickness or injury prevents them from working.
Special Benefit may be paid to people who are in financial hardship, unable to earn a sufficient livelihood for themselves and dependents due to reasons beyond their control, and who are not eligible for any other pension or allowance. The assets test is applied to people over 18 or those under 18 who are entitled to the homeless or independent rate. For under 18s, not in receipt of the homeless or independent rate, a parental means test applies, For Special Benefit only, any income directly reduces the amount of benefit payable. Extra assistance, in the form of Family Payment, is payable for dependent children. Rent assistance may also be available if private rent or board is paid.
Generally, a person must be an Australian resident (generally a citizen or permanent resident) and physically present in Australia when a claim is lodged.
Age Pension. You must have lived inAustralia continuously for 10 years at some stage, or for at least 5 years at any time and have lived here for other periods as well. Residence in countries with which Australia has signed social security agreements may be treated as residence in Australia. Generally a pension can be granted only to a person who is residing in, and physically present in Australia. Disability Support Pension. If your accident or illness occurred in Australia or during temporary absence from Australia you may be immediately eligible for a Disability Support Pension. If your accident or illness did not occur in Australia you must have lived in Australia continuously for at least 10 years at some stage or for 5 years at any one time and have lived here for other periods as well. Residence in countries with whichAustralia has signed social security agreements may be treated as residence in Australia.
Widow Allowance. When you lost your partner you must both have been living permanently in Australia, or you must have lived continuously in Australia for 10 years at some stage, or five years immediately prior to the claim for pension.
Sole Parent Pension. You must have been living in Australia at the time of the event which made you a sole parent. Otherwise the requirements are the same as for Widow Allowance.
Newstart and Sickness Allowance. You must have lived in Australia for the last 2 years and be a permanent resident.
Other benefits for the Family.
About 1. 8 million (75%) ofAustralian families with children get some form of family assistance from the Commonwealth Government. Family Payment is money to help you raise your children. It is paid to the parent caring for the children, usually the mother, depending on your circumstances, and can be reviewed each year to make sure you are getting the correct amount. GuardianAllowance is paid as part of Family Payment to sole parents with dependent children, because of the extra costs of raising children on their own Family Payment is paid for children up to the age of 16. You may continue to get Family Payment for full-time secondary students under 18, if they can’t get Austudy.
Family Payment can also include Multiple Birth Allowance if you have triplets, quadruplets or more. This allowance is paid until your children turn six. If you have a child with a disability you may be able to get Child Disability Allowance as well.
Whether you get Child Disability Allowance will depend on how much extra care and attention your child needs. Maternity Allowance is a one-off payment of $870. 30 to help families with the extra costs when their baby is born. How much Family Payment you get depends on your family income, your assets, how many children you have and how old they are.
Parenting Allowance is a payment for the partner in a couple who is not in paid work or is getting only a low personal income. It gives the partner who mainly cares for the children some independent income and choice about work. It is on top of your Family Payment. Parenting Allowance has two parts. Basic Parenting Allowance is worked out using your income only. It is not taxable or assets tested. Your partner’s income is not taken into account. Additional Parenting Allowance is paid if your partner is getting another Social Security benefit or is working and your family has a low income. The income of both you and your partner is taken into account to work out how much you can get. This additional payment is taxable and assets tested. Childcare Assistance helps with the cost of your child care at long day care, occasional care or family day care. It is a subsidy paid directly to your child care provider and reduces the fees you pay. The amount of assistance will depend on your income and assets and the number of children you have using child care.
A Health Care Card can save you money on prescription drugs and make bulk-billing at the doctor’s easier. You may also be able to get concessions provided by some State and local government authorities and private organisations. Health Care Cards are issued to all people receiving Social Security allowances and to families receiving Family Payment at the maximum rate. Pensioner Concession Cards are issued to all pensioners and provide health, household, transport, educational and recreational concessions, including low-cost prescription drugs.
Family Tax Initiative (FTI) is on top of any Family Payment you may get. Starting from 1 January 1997, it provides more money to most families with children. You get FTI either as a regular payment from Social Security or by paying less tax. FTI is on top of any family payments you already get. It is not taxed and it does not have an assets test.
Further information. A range of publications about the above pensions, allowances and benefits is available from Centrelink regional offices and some community organisations. For more information phone: Pensions 132300; Family Payments 132717; Newstart 132850, other enquiries 132488; for information in languages other than English call 131202. These calls can be made from anywhere in Australia for the cost of a local call. Many people who are entitled to a pension or benefit may not realise they are eligible. It can be a costly mistake not to apply. If your application is rejected you can ask to have the decision looked at again. If you still think the decision is not correct you can ask for it to be reviewed by an Authorised Review Officer (ARO). If, after the ARO has looked at your case, you still think the decision is not correct, you can appeal the Social Security Appeals Tribunal (SSAT) and then the Administrative Appeals Tribunal. You can also have the right to obtain documents under the Freedom of Information Act.
Pensions income and assets test. Social Security pensions are assessed under either an income test or an assets test—not both.The test which produces the lower rate of pension will be the one applied.
PERSONAL INJURIES COMPENSATION
on Premises, see Chapter 2.
Compensation for Victims of Crime, see Chapter 13.
Injury at Police Stations, see Chapter 8.
Any payment of compensation you receive may affect your entitlement to social security payments. Weekly payments of compensation reduce your social security payments dollar for dollar and past payments of social security may be recoverable as a result of receipt of arrears of weekly compensation payments. Also, if you receive a lump sum payment of compensation there is a period of time when you may not be able to get certain social security payments. If you were paid social security payments during this period those payments are repayable to the Department of Social Security.
Employers in Australia are obliged to obtain adequate Workers’ Compensation insurance to cover all their employees. Thus wherever you employ a worker, whether in the house, or on the farm, or in business, you must have workers’ compensation insurance cover. Most persons working for wages are workers within the meaning of the various State acts applying to workers’ compensation. As a worker, whether blue collar or white collar, you are generally entitled to compensation for any injury arising out of or in the course of your employment, even though you caused the accident. A worker is entitled to be compensated for disease due to the nature of his work or sometimes where a disease is aggravated by his work. In some States there are time limits on such claims. The amount of compensation payable and the conditions of payment are controlled by the various State acts.
In addition to weekly compensation during incapacity a worker is usually entitled to payment of hospital and medical accounts. Generally speaking a worker who suffers the loss of or permanent injury to a limb, his sight, or his hearing, is entitled to receive a lump sum payment plus weekly compensation during total incapacity from work and sometimes during partial incapacity. Where death results from the injury or disease, compensation is payable for the benefit of the worker’s dependents, e.g. his wife and children. In some States there are special Workers’ Compensation Boards to hear and determine claims for compensation and in other States claims are handled by the normal courts. Persons employed in the Australian Public Service are covered by a special Australian Government Act. There are certain requirements in the various acts about the worker giving his employer early notice of his injuries and of his intention to claim compensation. It is important that a worker give his employer notice of his injury and lodge his claim promptly or he may be debarred from claiming. A worker must generally submit himself to examination by a doctor appointed by his employer whenever required or the employer may be entitled to stop weekly payments of compensation. The worker may settle his claim with the employer or the employer’s insurance company. If unable to settle the claim the matter proceeds to a court or board hearing and after the hearing a decision is made on whether the worker is entitled to compensation and if so, how much.
At the appropriate time compensation for a permanent incapacity may be finalized for a lump sum. If you can establish that your injury was due to the negligence of your employer or your employer’s agents you may be able to sue in the courts for damages at common law (for details of the new Victorian Workcover phone 9641 1444).
Compensation For Motor Accident Victims
Damages at Common Law. Any person injured as the result of the negligent driving by another person of a motor vehicle may claim damages at common law (compensation) against the negligent driver. The amount of damages will depend upon the extent of the injuries sustained, whether there are any permanent injuries or residual disabilities, pain and suffering, loss of enjoyment of life, future economic loss, hospital and medical expenses and loss of wages, etc. If the claim for damages is not settled a court will make an award. If the negligent driver cannot be identified, proceedings may be commenced against the Nominal Defendant.The amount awarded as damages or agreed upon will be met by an insurance company. The amount of damages will be decreased if the person making the claim contributed to the accident through his own negligence. People who were economically dependent on a person killed in a motor vehicle accident may claim damages for loss of economic support. If a man dies as a result of someone’s negligent driving, his wife and children can sue the driver responsible for the death.There does not have to be a collision between vehicles for a claim for damages to be made. Thus pedestrians, and passengers in vehicles which run off the road, can sue the driver. Where a vehicle is forced off the road by an unidentified vehicle the Nominal Defendant can be sued.
In Victoria claims for damages at common law for injuries sustained in accidents which occurred before 1st January, 1987, will be covered by the above principles.
Victoria and NSW. Where a person is injured in Victoria in an accident after 1 January, 1987 and in NSW after 1 January 1989 there will be only limited scope to bring an action in the Courts for damages at common law. If an award for damages is less than a threshold, of about $40,000, the claimant will receive no award and must pay costs. In Victoria, an action can be brought only if the claimant has a “serious” injury such as a serious long term impairment, permanent serious disfigurement, or severe long term mental disturbance, or if he has been classified as being over 30% impaired on an assessment table. Damages at common law for motor accident victims in Victoria and NSW are restricted by means of a threshold at the lower end and by the setting of a maximum figure which can be recovered. In NSW there is a threshold of about $40,000 for injuries sustained in accidents prior to October 1999. For injuries sustained in accidents since that date there must be 10% permanent whole person impairment. Phone 1300 656 919 for details.
No fault compensation. In Victoria accident victims can make claims for loss of wages and other expenses under a “no-fault” system. All types of road users are protected including pedestrians, drivers, motor cyclists and cyclists. Payments are made by the Transport Accident Commission for income loss for up to 18 months when a review takes place. A lump sum payment may be made. In the majority of cases the cost of all medical, ambulance and hospital expenses incurred through injury are paid. In the case of fatal injuries a lump sum payment may be made to the surviving spouse of an earner.
Most hospitals and doctors have made arrangements to submit their accounts direct to the TAC. Also therapeutic and other relevant costs including household help are met.
Reasonable funeral expenses are payable.
For compensation for damage to motor vehicles see Chapter 17.
If you are injured as a result of an assault you may be able to obtain damages but would be faced in most cases by the defence that you consented to run the risk of injury, and even if you obtain a verdict for damages, recovery from the defendent may be difficult. Some sporting clubs take out insurance to cover claims against their members.
You may be able to sue the manufacturer of sporting equipment if a defect causes injury or inadequate instructions and warnings are given. The owner of sporting premises or areas such as playing fields could be sued if there is a defect or hidden trap on the surface (e.g. a pot-hole).
Contents of Your Rights
Australian Civil Liberties Union