Explanatory Statement
Issued by the authority of the Minister for Social Services
Social Security (Administration) Act 1999
Social Security (Administration) (Exempt Welfare Payment Recipient – Principal Carer of a Child) (Activities) Instrument 2026
Purpose
The Social Security (Administration) (Exempt Welfare Payment Recipient – Principal Carer of a Child) (Activities) Instrument 2026 (Instrument) is made by the Minister for Social Services under subsections 123UGD(2) and (3) of the Social Security (Administration) Act 1999 (the Act). The Instrument specifies activities in which a person, or a child for whom the person is the principal carer, may participate (including the number and kind of those activities where relevant) for the purposes of the person being subject to the income management regime under the exempt welfare payment recipient measure.
Background
Part 3B of the Act establishes an income management regime that applies to recipients of certain welfare payments. If a person is subject to the income management regime under Part 3B, the Secretary will deduct amounts from the person’s relevant welfare payments and credit those amounts to the person’s income management account. The Secretary may then debit amounts from the person’s income management account, in accordance with Part 3B, for the purpose of taking actions directed to meeting the priority needs of the person or their dependants, such as food, clothing and shelter.
The Instrument repeals and replaces the Social Security (Administration) (Exempt Welfare Payment Recipients – Principal Carers of a Child) (Specified Activities) Instrument 2015 (2015 Instrument), which is due to sunset on 1 April 2026. The Instrument has been updated to reflect current wording and drafting practices, and has been simplified to align with equivalent provisions in the instrument that applies to enhanced income management participants under the exempt welfare payment recipient measure (sections 10 and 11 of the Social Security (Administration) (Enhanced Income Management Regime—Commonwealth Referrals and Exemptions) Determination 2023). However, the substantive content and policy intention is the same as the previous 2015 Instrument.
Specified activities
Subdivision BB of Division 2 of Part 3B to the Act provides for exemptions for people who become subject to income management under the disengaged youth and long-term welfare payment recipient measures.
For a person who is not the principal carer of a child, the exemption criteria (in section 123UGC of the Act) relate, in general terms, to engagement in full‑time study or a sustained pattern of employment.
For a person who is the principal carer of a child, the exemption criteria (in section 123UGD of the Act) relate, in general terms, to responsible parenting practices and to whether there have been indications of financial vulnerability in relation to a person during the preceding 12 months. The term “principal carer” of a child, as used in section 123UGD of the Act, is defined in subsection 5(1) of the Social Security Act 1991.
At the time this Instrument is made, the Social Security (Administration) (Exempt Welfare Payment Recipients – Principal Carers of a Child) (Indications of Financial Vulnerability) Principles 2020 sets out decision-making principles that the Secretary must comply with in deciding whether they are satisfied that there have been no indications of financial vulnerability in relation to a person in the preceding 12 months.
This Instrument specifies activities for the purposes of subparagraph 123UGD(1)(b)(ii) of the Act. For a person who is the principal carer of a school age child to be exempt under paragraph 123UGD(1)(b) of the Act, the Secretary must be satisfied that, at the test time:
- the child is enrolled at a school, and, in each of the 2 school terms ending immediately before that time, the child has had no more than 5 absences for reasons that are not satisfactory to a person responsible for the operation of the school; or
- the child is enrolled at a school, and, in each of the 2 school terms ending immediately before that time, the child has had more than 5 absences for reasons that are not satisfactory to a person responsible for the operation of the school but the person is taking reasonable steps to ensure that the child attends school as required by the law of the State or Territory concerned; or
- the child is covered by a schooling arrangement that is acceptable under a law of a State or Territory as an alternative to a requirement under that law to enrol at, or attend, a school (for example, the child is home‑schooled), and the child’s schooling is progressing satisfactorily; or
- the child is participating in an activity specified in an instrument made by the Minister under subsection (2).
For a person whose child is not a school age child, to be exempt under paragraph 123UGD(1)(c) of the Act, the Secretary must be satisfied that, at the test time, the person or the child is participating in the number and kind of activities specified by the Minister, by legislative instrument. This Instrument also specifies the number and kind of activities for the purposes of the requirements in paragraph 123UGD(1)(c) of the Act.
Commencement
The Instrument commences on the day after it is registered on the Federal Register of Legislation.
Authority
The Instrument is made under subsections 123UGD(2) and (3) of the Act.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. In making the Instrument, the Minister is relying on this subsection in conjunction with the instrument-making powers in subsections 123UGD(2) and (3) of the Act.
The Instrument is a legislative instrument for the purposes of the Legislation Act 2003 and is subject to disallowance.
Consultation
The Department of Social Services (the Department) consulted with Services Australia on the text of the Instrument.
The Department consulted with the Department of Education on the intention to make the Instrument, in particular updating the term “approved care service” in the 2015 Instrument to “approved child care service” in the Instrument.
The above agencies are supportive of the Instrument.
The Department did not consult with income management participants likely to be affected by this Instrument, as the substance of the Instrument is the same as the 2015 Instrument. The Instrument does not intend to make any policy changes.
Availability of independent review
A decision made under the social security law, as informed by the Instrument, is subject to internal and external review under Parts 4 and 4A of the Act.
Explanation of the provisions
Details of the Social Security (Administration) (Exempt Welfare Payment Recipient – Principal Carer of a Child) (Activities) Instrument 2026
Section 1 - Name
Section 1 states how the instrument is to be cited, that is, as the Social Security (Administration) (Exempt Welfare Payment Recipient – Principal Carer of a Child) (Activities) Instrument 2026 (Instrument).
Section 2 – Commencement
Section 2 sets out a table providing for the commencement of the Instrument on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
Section 3 provides that the Instrument is made under subsections 123UGD(2) and (3) of the Social Security (Administration) Act 1999 (the Act).
Section 4 – Schedules
Section 4 provides that each instrument that is specified in a Schedule to the Instrument is amended as set out in the applicable items in that Schedule, and any other item in a Schedule to the Instrument has effect according to its terms.
Section 5 – Definitions
Section 5 contains definitions of certain terms used in the Instrument.
The term “approved care service” is no longer defined in subsection 3(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act). In the Instrument, this term has been replaced with “approved child care service”.
Subsection 3(1) of the Family Assistance Administration Act defines “approved child care service” as having the meaning given in section 194G of the Family Assistance Administration Act.
Subsection 194G(1) sets out that meaning as follows: “A child care service is an approved child care service if an approved provider is approved in respect of the service under this Division [Division 1 of Part 8 of the Family Assistance Administration Act] and that approval is in effect.”
The term “approved provider” is defined in subsection 3(1) of the Family Assistance Administration Act as a provider for which an approval is in effect under Division 1 of Part 8, and does not include a provider whose approval is suspended.
In Division 1 of Part 8 of the Family Assistance Administration Act, subsection 194B(1) provides that the Secretary may approve a provider for the purposes of the family assistance law if the Secretary is satisfied that the provider satisfies the provider eligibility rules in section 194C, and the provider operates, or will operate, at least one child care service that satisfies the service eligibility rules in section 194D. Each type of service must also meet the additional criteria for service eligibility set out for that kind of service in section 45 of the Child Care Subsidy Minister’s Rules 2017 (Minister’s Rules).
To satisfy these service eligibility rules, paragraph 194D(a) requires that a child care service must be of a type referred to in subclause 2(3) of Schedule 2 to the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) (but not those specified in subparagraphs 194D(a)(i) to (vi)). The following service types are prescribed in subclause 2(3) of Schedule 2 to the Family Assistance Act, and child care subsidy payments can be paid for sessions of care provided by these services:
- a centre-based day care service;
- a family day care service;
- an outside school hours care service;
- an in home care service;
- a type of service prescribed by the Minister’s rules.
These terms are not currently defined in the family assistance law. The Minister’s Rules do not currently prescribe service types other than those listed above.
Section 6 – Specified activities – school age child (with terminal condition)
Section 6 of the Instrument provides that for subparagraph 123UGD(1)(b)(iii) of the Act, the specified activity, for a school age child with a terminal condition, is a program of treatment for the terminal condition, provided by one or more treating health professionals.
The effect of section 6 is twofold. First, for the purposes of paragraph 123UGD(1)(b) of the Act, the Secretary may determine that a person who is the principal carer of a child with a terminal condition is an exempt welfare payment recipient if, in addition to being satisfied of the other things that the Secretary is required to be satisfied of under subsection 123UGD(1), the Secretary is satisfied that the child is participating in ongoing treatment in relation to their condition. Second, in relation to a school age child who does not have a terminal condition, the Secretary would have to be satisfied that the conditions in subparagraph 123UGD(1)(b)(i) or (ii) of the Act were met.
Section 5 provides that in this Instrument, the term “terminal condition” has the meaning given by Part 2.5 of the Social Security Act 1991. Part 2.5 relates to carer payment, and uses the term “terminal condition” in the context of qualification for that payment.
In this context, because of the definition in section 5 of the Instrument, “treatment” includes care and so could include, for example, palliative care. A “treating health professional” is defined in section 5 of the Instrument as having the same meaning as in subsection 197(1) of the Social Security Act 1991. This definition is used for the purposes of carer payment under Part 2.5 of that Act.
No other alternative school age activities have been provided for in this Instrument because there is a general expectation that children are enrolled in and attending school.
Section 7 – Specified activities – child (other than a school age child)
For paragraph 123UGD(1)(c) of the Act, section 7 specifies the number and kinds of activities in relation to a child other than a school age child. The number and kind of activities that are specified in subsections 7(1) and 7(2) are based on 3 main factors:
- the age of the child;
- the medical condition of the child; and
- whether the child is attending pre-school.
The kind of activities are specified in subsections 7(4) and 7(5) of the Instrument. Subsection 7(4) lists health related activities that relate primarily to the child’s health and physiological development. The activity relating to immunisation requirements refers to the meaning of the Family Assistance Act. Subsection 3(1) of that Act defines the term “meets the immunisation requirements”. The term “program of regular health and development assessments” is defined in section 5 of the Instrument.
Subsection 7(5) lists engagement related activities that relate to the child’s intellectual, physical and social development, such as attending playgroup, creche or Kindergym. These terms are not defined in the Instrument or the social security law, and are intended to have their ordinary meaning. The term “approved child care service” is defined in section 5 of the Instrument.
Subsection 7(3) provides that for the purpose of subsection 7(2), a child is “unable to participate in an engagement related activity” if the child has a severe disability or severe medical condition and, because of that disability or medical condition, the child is not able to participate in any of the engagement related activities set out in subsection 7(5). Section 5 of the Instrument provides that the term “severe disability or severe medical condition” has the meaning given by Part 2.5 of the Social Security Act 1991, where the term is used in the context of qualification for carer payment.
Child who has a terminal condition
Subsection 7(1) sets out the specified number and kind of activities in relation to a child who is not a school age child and who has a terminal condition. The requirement in subsection 7(1) is the only requirement that applies to a child younger than school age and who has a terminal condition, regardless of the child’s precise age. The other requirements in subsection 7(2) are all expressed to apply to a child who does not have a terminal condition.
Under subsection 7(1), for the purposes of paragraph 123UGD(1)(c) of the Act, the child is required to be participating in only 1 activity. Accordingly, for paragraph 123UGD(1)(c), the specified activity for a child who is younger than school age and who has a terminal condition is 1 of the health related activities in subsection 7(4). This includes a program of treatment provided by at least one treating health professional in relation to that terminal condition.
Child who does not have a terminal condition
Subsection 7(2) sets out the specified number and kind of activities in relation to a child who is not a school age child and who does not have a terminal condition.
Paragraph 7(2)(a) applies to such a child who is aged less than 3 years. For the purposes of paragraph 123UGD(1)(c) of the Act, the child is required to be participating in 2 health related activities in subsection 7(4). Regular monitoring of health and physiological development is considered beneficial for all young children to maintain healthy growth and development. In addition, engagement with health services relating to child development is considered an indicator of responsible and engaged parenting.
Subparagraph 7(2)(b)(i) applies to a child who is aged 3 years or over but under age 4 (other than a child of that age with a terminal condition), and is “unable to participate in an engagement related activity”. This term is defined in subsection 7(3), which provides that a child is “unable to participate in an engagement related activity” if the child has a “severe disability or severe medical condition” (as defined in section 5) that prevents the child from participating in the engagement related activities set out in subsection 7(5). For the purposes of paragraph 123UGD(1)(c) of the Act, the child is required to be participating in 3 health related activities in subsection 7(4). This specific rule recognises that children who have a severe disability or severe medical condition may have difficulties accessing or participating in the engagement related activities listed in subsection 7(5), and that it is appropriate for the focus to be on participation in activities that are specifically tailored to addressing their particular health concerns.
Subparagraph 7(2)(b)(ii) applies to a child who is aged 3 years or over but under age 4 (other than a child of that age with a terminal condition), who does not satisfy the meaning of “unable to participate in an engagement related activity”, as set out in subsection 7(3). For the purposes of paragraph 123UGD(1)(c) of the Act, the child is required to be participating in 2 health related activities in subsection 7(4), plus 1 engagement related activity in subsection 7(5).
In addition to regular engagement with health and physiological development services, it is appropriate for children in this age group to be participating in some form of socialisation or engagement. The flexible range of engagement related activities specified in subsection 7(5) acknowledges that formal or facilitated services are not always available for children in this age group but recognises the benefits of social interaction for both children and their parents.
Paragraph 7(2)(c) applies to a child who is aged 4 years or over (other than a child of that age with a terminal condition), and who is attending pre-school. As defined in section 5 of the Instrument, the term “pre-school” includes kindergarten. For the purposes of paragraph 123UGD(1)(c) of the Act, the child is required to be participating in 2 health related activities in subsection 7(4). Because the child is attending pre-school, which provides the child with socialisation opportunities as well as structured learning, there is no requirement for the child to be participating in any of the engagement related activities in subsection 7(5).
Subparagraph 7(2)(d)(i) applies to a child who is aged 4 years or over (other than a child of that age with a terminal condition), is not attending pre-school, and is “unable to participate in an engagement related activity” (within the meaning in subsection 7(3)). This refers to a child who has a “severe disability or severe medical condition” (as defined in section 5) that prevents the child from participating in the engagement related activities in subsection 7(5). For the purposes of paragraph 123UGD(1)(c) of the Act, the child is required to be participating in 3 health related activities in subsection 7(4). This specific rule recognises that children who have a severe disability or medical condition may have difficulties accessing or participating in the engagement related activities listed in subsection 7(5), and that it is appropriate for the focus to be on participation in activities that are specifically tailored to addressing their particular health concerns.
Subparagraph 7(2)(d)(ii) applies to a child who is aged 4 years or over (other than a child of that age with a terminal condition), who is not attending pre-school, and does not satisfy the meaning of “unable to participate in an engagement related activity”, as set out in subsection 7(3). For the purposes of paragraph 123UGD(1)(c) of the Act, the child is required to be participating in 2 health related activities in subsection 7(4), as well as 2 engagement related activities in subsection 7(5).
Because the child is not attending pre-school, it is appropriate for there to be a requirement for the child to be participating in the kinds of engagement related activities set out in subsection 7(5). More structured forms of social development should apply to children in this age group to in order to facilitate school-readiness and cognitive development.
Schedule 1 – Repeals
Item 1 repeals the Social Security (Administration) (Exempt Welfare Payment Recipients - Principal Carers of a Child) (Specified Activities) Instrument 2015, which is due to sunset on 1 April 2026.
The Instrument remakes this sunsetting instrument with updated wording and simplified drafting, which is consistent with equivalent provisions relating to enhanced income management participants under the exempt welfare payment recipient measure. However, the substance of the Instrument and the policy intent has not changed from the previous instrument.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Administration) Act 1999
Social Security (Administration) (Exempt Welfare Payment Recipient – Principal Carer of a Child) (Activities) Instrument 2026
The Social Security (Administration) (Exempt Welfare Payment Recipient – Principal Carer of a Child) (Activities) Instrument 2026 (Instrument) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The Instrument is made by the Minister for Social Services under subsections 123UGD(2) and (3) of the Social Security (Administration) Act 1999. The Instrument specifies activities in which a person, or a child for whom the person is the principal carer, may participate (including the number and kind of those activities where relevant) for the purposes of the person being subject to the income management regime under the exempt welfare payment recipient measure.
The Instrument repeals and replaces the Social Security (Administration) (Exempt Welfare Payment Recipients - Principal Carers of a Child) (Specified Activities) Instrument 2015.
Human rights implications
The right to an education
Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 28 of the Convention on the Rights of the Child (CRC) recognise the right to an education. In recognition of this, the ICESCR and CRC state that all primary education shall be ‘compulsory and available free for all’ and the ICESCR states secondary education shall be made ‘available and accessible to every child’.
This Instrument recognises and promotes this right by encouraging principal carers to send their children to educational, social and school based activities to ensure their dependants receive an adequate level of education.
The right to healthcare
Article 12 of the ICESCR recognises ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. Article 24 of the CRC also recognises and acknowledges the right that children have access to appropriate facilities, treatment and rehabilitation of illness.
This Instrument recognises and promotes this right by encouraging principal carers to provide their dependants with an adequate standard of health care and medical treatment.
The right to non-discrimination against people with disability
Article 4 of the Convention on the Rights of Persons with Disability ensures and promotes ‘the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability’. Article 7 states that parties ‘shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children’.
This Instrument includes particular activities for principal carers of children with disability. This is not intended to discriminate against children with disability but instead acknowledges the special needs of children with disability who may not be able to attend the specified social and education activities.
Conclusion
The Instrument is compatible with human rights. It assists in the protection of human rights, in particular the rights of a child by ensuring that responsible parenting practices are being applied by encouraging education and health care for vulnerable children. The Instrument encourages socially responsible behaviour to ensure principal carers are meeting the needs of their dependants.
To the extent this Instrument may limit human rights, those limitations are reasonable, necessary and proportionate to achieving the legitimate objective of the income management regime.
The Hon Tanya Plibersek MP, Minister for Social Services