Section 128 — Social Security Act 1991: Saving provision—portability rules relating to rates of pension

(1) Despite the amendments of sections 1213A, 1215, 1216, 1220A, 1220B and 1221 of this Act made by the Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000, if: (a) a person was absent from Australia immediately before 20 September 2000; and (b) at a time (the post-start time) after 20 September 2000, the person had not returned to Australia for a continuous period of 26 weeks or more since 20 September 2000; those provisions continue to apply to the person at the post-start time as if those amendments had not been made. (1A) If: (a) the Secretary is satisfied that the person’s return to Australia is temporary; and (b) the Secretary is satisfied that the person is unable to leave Australia before the end of the 26 weeks mentioned in paragraph (1)(b) because of an event referred to in subclause (1B); the Secretary may, in relation to the person, determine that a reference to 26 weeks in paragraph (1)(b) is taken to be a reference to another number of weeks. (1B) The events are the following: (a) a serious accident involving the person or a family member of the person; (b) a serious illness of the person or a family member of the person; (c) the hospitalisation of the person or a family member of the person; (d) the death of a family member of the person; (e) the person’s involvement in custody proceedings in Australia; (f) a legal requirement for the person to remain in Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person); (g) robbery or serious crime committed against the person or a family member of the person; (h) a natural disaster in Australia; (i) a public health crisis affecting Australia or the country to which the person intends to return to or both. (1C) The Secretary must not make a determination under subclause (1A) unless the event occurred or began during the period of return to Australia. (1D) If the Secretary determines another number (the new number) of weeks under subclause (1A), then, immediately after that determination is made, a reference to a number of weeks in paragraph (1)(b), and each reference to a number of weeks in subclause (1A), is taken to be a reference to that new number. (2) However, the following provisions (as in force as if the amendments described in subclause (1) had not been made) do not continue to apply to the person at or after the first time the person is in Australia after the commencement of Schedule 6 to the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003: (a) section 1213A; (b) section 1215; (c) section 1216; (d) section 1220B, so far as it relates to a pension other than age pension or bereavement allowance. Note: If those provisions (as in force as if the amendments described in subclause (1) had not been made) do not continue to apply to the person at a particular time, the person is covered at that time by this Act as in force at that time. (3) To avoid doubt, Schedule 6 to the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 does not affect section 1220B (as in force as if the amendments described in subclause (1) had not been made) so far as that section continues to apply because of that subclause.