Exempt Lump Sum (Tasmanian Child Abuse Payment) Determination 2005 (DEST)

Administered by Department of Social Services

Legislation au F2005L01969 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Education, Science and Training Exempt Lump Sum (Tasmanian Child Abuse Payment) Determination 2005

 

Background

 

Under social security law all income earned, derived or received for a person’s own use or benefit, is counted as income.  The only exceptions are items specifically exempted under the social security law.

 

Paragraph 8(11)(d) of the Social Security Act 1991 (the Act) allows the Secretary to determine that an amount, or class of amounts, is an exempt lump sum for the purposes of the Act.  An exempt lump sum is excluded from the definition of “ordinary income” under subsection 8(1) of the Act, so any such amount would not be taken into account under the social security income test. 

In 2004 the Tasmanian Government agreed to make ex gratia payments to people abused as children while they were in Tasmanian State care.  These Tasmanian ex gratia payments are similar to five other types of payments that have been exempted from the social security income test since 1998.

The purpose of this instrument is to ensure that an ex gratia payment made by the Tasmanian Government to a person who was abused as a child while in Tasmanian State care, is an exempt lump sum for the purposes of paragraph 8(11)(d) of the Act.

The effect of this instrument is that people who are in receipt of a social security payment for which the Department of Education, Science and Training is responsible will not have their social security payments reduced because of the Tasmanian ex gratia payment that they receive as these payments will not be regarded as income for the purposes of the social security income test.

 

 

Explanation of the provisions

Part 1

Clause 1 of the instrument states the name of the instrument.

Clause 2 states that the instrument commences on 15 December 2004.

Clause 3 contains interpretation provisions.  In particular, the term “compensation payment” is defined as an ex gratia payment made by the Tasmanian State Government in respect of child abuse suffered by a person while in Tasmanian State care.

The term “Tasmanian State care” is defined in clause 3 as care provided by an institution responsible for the provision of child welfare services.  Such an institution must be, or must have been, either administered by the Tasmanian State Government or funded by the Tasmanian State Government.

Part 2

Subclause 4(1) states that paragraph 8(11)(d) of the Act allows the Secretary to determine that an amount, or class of amounts, received by a person is an exempt lump sum.

Subclause 4(2) provides that if a person has received a “compensation payment” and they are also in receipt of a social security payment, then any amount received by the person as a compensation payment is an exempt lump sum.

Clause 5 specifies that an amount received by a person referred to in subclause 4(2) is an exempt lump sum for the purposes of paragraph 8(11)(d) of the Act.  Such an amount will be regarded as an exempt lump sum from the date that the amount was received by the person, provided that this date is after the commencement of this instrument (that is, after 15 December 2004).

Consultation

The Department of Prime Minister and Cabinet has advised that the Prime Minister’s office supports exempting these payments in accordance with this instrument.

The Department of Family and Community Services and the Department of Employment and Workplace Relations were also consulted to ensure a co-ordinated and consistent approach to the administration of these Tasmanian ex gratia payments for all social security payments under the Act.

This instrument is beneficial to customers because it exempts Tasmanian ex gratia payments from the social security income test.  Public consultation was therefore regarded as unnecessary.

Retrospectivity

A delegate of the Secretary of the Department of Family and Community Services signed a similar instrument on 15 December 2004 in relation to social security payments within the  Family and Community Services portfolio (the Social Security Exempt Lump Sum Determination No. 8 of 2004).  This instrument will also have effect from 15 December 2004 to ensure that Tasmanian ex gratia payments are treated consistently for all social security payments under the Act from the same date.  This retrospective commencement is beneficial to social security recipients in that it exempts their ex gratia payment from the income test from 15 December 2004.  This instrument is entirely beneficial and does not disadvantage social security recipients in any way.

 

Overview

The Education, Science and Training Exempt Lump Sum (Tasmanian Child Abuse Payment) Determination 2005 was enacted to address the issue of Tasmanian ex gratia payments made to individuals who were abused as children while in state care being considered income under the social security system. This instrument was introduced to ensure that these payments are exempted from the social security income test, thus not affecting the social security payments of recipients. The determination was enacted by the Parliament of Australia and aims to provide a consistent approach in the administration of these payments across all social security payments under the Social Security Act 1991. The instrument commenced on 15 December 2004, and was supported by various government departments to ensure a coordinated approach to the administration of these payments.

Scope and Application

The Education, Science and Training Exempt Lump Sum (Tasmanian Child Abuse Payment) Determination 2005 applies to individuals who have received an ex gratia payment from the Tasmanian Government for child abuse suffered while in Tasmanian State care, and who are also recipients of a social security payment managed by the Department of Education, Science and Training. The Act ensures that these ex gratia payments are exempt from the social security income test, thereby preventing any reduction in social security benefits due to the receipt of such payments. This instrument is specifically designed to address the unique situation of individuals who were abused in State care, aligning with other similar exempted lump sums under the Social Security Act 1991. The instrument came into effect on 15 December 2004 and is applicable nationally, though it specifically targets those affected by the Tasmanian Government's ex gratia payments. The instrument does not apply to any other forms of lump sums or payments outside the specified context of child abuse compensation in Tasmanian State care.

Key Provisions

The Education, Science and Training Exempt Lump Sum (Tasmanian Child Abuse Payment) Determination 2005 contains provisions that ensure Tasmanian ex gratia payments made to individuals who were abused as children while in Tasmanian State care are treated as exempt lump sums under the Social Security Act 1991 (the Act). According to subclause 4(2), if a person has received a "compensation payment" and is also in receipt of a social security payment, then any amount received by that person as a compensation payment is an exempt lump sum. Clause 5 further specifies that such an amount is considered an exempt lump sum for the purposes of paragraph 8(11)(d) of the Act, provided that the amount was received after the commencement of the instrument on 15 December 2004. The Act imposes obligations on the relevant parties, particularly those who have received a compensation payment while in receipt of a social security payment. It ensures that these payments are excluded from the social security income test, meaning that recipients will not experience a reduction in their social security payments due to the receipt of the compensation payment. This determination provides clarity and consistency in the administration of these payments across various social security schemes. There are no explicit offences, penalties, or civil/criminal consequences mentioned in the Determination for breach of its provisions. However, any failure to comply with the Act's requirements may result in potential legal consequences or actions taken by the relevant authorities, as the Determination is made under the authority of the Act. The Act itself provides for various penalties for non-compliance, which could include fines or imprisonment depending on the nature and severity of the breach. The Determination aims to ensure that the Tasmanian ex gratia payments are treated consistently and fairly for all social security recipients, with no adverse consequences arising from its implementation.

Legal classification tags

Area of Law
Social Security Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Commencement Provisions
Exempt Lump Sum

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.