Social Security (Exempt Lump Sum) (Payments to former residents in South Australian State care) (DEEWR) Determination 2010

Administered by Department of Social Services

Legislation au F2011L00159 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Social Security Exempt Lump Sum (Payments to former residents in South Australian State care) (DEEWR) Determination 2010

Summary

Paragraph 8(11)(d) of the Social Security Act 1991 (the Act) allows the Secretaries of the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) and the Department of Employment, Education, and Workplace Relations (DEEWR) to determine that an amount or class of amounts received by a person is an exempt lump sum for the purposes of the Act.  The effect of this Determination is that for the purpose of social security payments for which the Minister is responsible, an ex-gratia payment made by the State of South Australia under the Victims of Crime Act 2001 to former residents in State care who have suffered sexual abuse is an exempt lump sum under paragraph 8(11)(d).

 

Background

Under the social security law, all income earned, derived or received for a person’s own use or benefit, is generally assessable as income.  However, some amounts, that would otherwise be income, are specifically exempted from the social security income test.  Paragraph 8(11)(d) of 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.  As a result, any such amount is not to be taken into account under the social security income test.

On 29 January 2010, the State of South Australia announced a scheme to make ex-gratia payments under the Victims of Crime Act 2001 for individuals who, as children, were abused while in State care. 

To be eligible for the ex-gratia payment applicants must:

  • be over 18 years of age;
  • have suffered sexual abuse as a child; and
  • have been in State care at the time of suffering sexual abuse.

The Attorney-General of South Australia will determine who is eligible for an ex-gratia payment and the amount of the payment (up to $50,000) and the one off payment of up to $750 to pay for legal fees incurred in obtaining legal advice for the purposes of signing the deed of Settlement and Release.

 

This instrument determines that an ex-gratia payment made by the State of South Australia under the Victims of Crime Act 2001 to individuals who have suffered sexual abuse as children while they were in State care, will not be regarded as income under the Act.  Consequently, if a recipient of a DEEWR administered social security payment receives an ex-gratia payment made by the State of South Australia under the Victims of Crime Act 2001 for sexual abuse suffered by them as a child whilst in State care, it will be exempt from the income test under the social security law.

 

This Determination is a legislative instrument.  FaHCSIA is making a similar Determination in relation to social security payments that the Minister for Families, Housing, Community Services and Indigenous Affairs has responsibility for under the Administrative Arrangements Order. 

The Department of Veterans’ Affairs is also making a similar instrument in relation to the payments that the Minister for Veterans’ Affairs has responsibility for under the Administrative Arrangements Order.

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Explanation of Provisions

 

Section 1 of the Determination states the name of the Determination and how it is to be cited.

Section 2 states that the Determination commences on the day after it is registered.

 

Section 3 specifies that this Determination applies to an ex-gratia payment made to a person before, on or after the commencement of this Determination.

 

Although this provision has a retrospective application, the application is beneficial to the person involved.  This section ensures that any payment received under the Victims of Crime Act 2001 by former residents of South Australian State care is not treated as income for social security purposes irrespective of when the payment was actually received.  It also ensures that people who received an ex-gratia payment under the Victims of Crime Act 2001 before this Determination commenced are treated in the same way as people who receive an ex-gratia payment after the commencement of this Determination.

Section 4 contains the definitions.

The term ex-gratia payment is a payment that is made under the Victims of Crime Act 2001 and includes:
 

  1. a one off payment of up to $50,000 to former residents in South Australian State care who have experienced sexual abuse as children, and
  2. a one off payment of up to $750 to pay for legal fees incurred in obtaining legal advice for the purposes of signing the deed of Settlement and Release.

The decision about whether or not to make an ex-gratia payment and the amount of the payment is with the Attorney-General of South Australia.

Section 5 states that for paragraph 8(11)(d) of the Act an ex gratia payment, as defined, is an exempt lump sum.


Consultation

The Department of Veteran's Affairs, the Department of Families, Housing, Community Services and Indigenous Affairs and Centrelink were consulted regarding this exemption.

 

Regulatory Impact Analysis

This Determination does not require a Regulatory Impact Statement or Business Cost Calculator Figure. The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.

 

Overview

The Social Security Exempt Lump Sum (Payments to former residents in South Australian State care) (DEEWR) Determination 2010 was enacted to address a specific gap in social security law, ensuring that ex-gratia payments made by the State of South Australia under the Victims of Crime Act 2001 to former residents in State care who suffered sexual abuse as children are not considered income for the purposes of social security payments administered by the Department of Employment, Education, and Workplace Relations (DEEWR). This legislative instrument was introduced by the Australian Government in response to the South Australian scheme announced in January 2010, aiming to provide relief to victims of childhood sexual abuse in State care without impacting their eligibility for social security benefits. The determination was made under the authority granted by paragraph 8(11)(d) of the Social Security Act 1991, allowing the Secretaries of relevant departments to classify certain payments as exempt lump sums, thereby excluding them from the social security income test.

Scope and Application

The Social Security Exempt Lump Sum (Payments to former residents in South Australian State care) (DEEWR) Determination 2010 applies to any individual who has received an ex-gratia payment under the Victims of Crime Act 2001 from the State of South Australia, provided they were in State care as a child and suffered sexual abuse. This Determination ensures that such payments are exempt from the social security income test under the Social Security Act 1991. The exemption applies to payments made before, on, or after the commencement of this Determination, thereby providing retrospective application beneficial to affected individuals. The Determination is applicable nationwide, but specifically targets former residents in South Australian State care who have experienced sexual abuse as children. It is noteworthy that the Attorney-General of South Australia retains the authority to determine eligibility and the amount of the payment, which can be up to $50,000, along with an additional payment of up to $750 for legal fees related to the settlement and release process. This Determination, along with similar ones by FaHCSIA and the Department of Veterans’ Affairs, ensures a consistent approach to the treatment of these payments across various social security schemes.

Key Provisions

The key operative sections of the Social Security Exempt Lump Sum (Payments to former residents in South Australian State care) (DEEWR) Determination 2010 include the provisions that define the scope and application of the Determination. Section 1 specifies the name and citation of the Determination, while Section 2 provides for the commencement of the Determination, with the effective date being the day after it is registered. Section 3 ensures the Determination applies to ex-gratia payments made before, on, or after the commencement date, thus providing retrospective application to benefit those who have already received payments. Section 4 includes definitions critical to understanding the terms used, such as "ex-gratia payment," which refers to payments made under the Victims of Crime Act 2001, including a payment of up to $50,000 for sexual abuse victims and a payment of up to $750 for legal fees. Section 5 then explicitly states that such payments are considered exempt lump sums under paragraph 8(11)(d) of the Social Security Act 1991. The Act imposes certain obligations and requirements on the parties involved. Primarily, the Attorney-General of South Australia is responsible for determining the eligibility and amount of the ex-gratia payments. This role ensures that only those who meet the eligibility criteria, such as being over 18 years of age, having suffered sexual abuse as a child, and having been in State care at the time of the abuse, are considered for the payments. Additionally, the Act requires that these payments be excluded from the social security income test, ensuring that recipients of DEEWR-administered social security payments are not disadvantaged by receiving these ex-gratia payments. Under the Determination, there are no specific offences, penalties, or civil/criminal consequences outlined for breach of the provisions. This is because the Determination is not regulatory in nature and does not impact business activity or competition. Consequently, the focus is on ensuring the equitable treatment of former State care residents who have suffered sexual abuse, rather than imposing penalties for non-compliance. The Determination, therefore, aims to provide clarity and ensure that affected individuals receive the appropriate support without facing additional financial burdens through the social security system.

Legal classification tags

Area of Law
Social Security Law
Instrument
Legislative Instrument
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.