Social Security Exempt Lump Sum (South Australian Stolen Generations Reparations Scheme) Determination 2016

Administered by Department of Social Services

Legislation au F2016L01006 In force Legislative Instrument

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EXPLANATORY STATEMENT

Social Security Exempt Lump Sum (South Australian Stolen Generations Reparations Scheme) Determination 2016

Summary

Under the 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 of the Department of Social Services (DSS) to determine that an amount or class of amounts received by a person is an exempt lump sum for the purposes of the Act.  An exempt lump sum is not included in 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.

Under the South Australian Stolen Generations Reparations Scheme, the South Australian Government is providing one-off ex gratia lump sum payments to Aboriginal persons who were removed from their parents or family as children before 31 December 1975 without a court order and whose usual place of residence when removed was South Australia or who were removed by South Australian authorities.

This Determination provides that a payment made by the South Australian Government under the Stolen Generations Reparations Scheme is an exempt lump sum for the purpose of paragraph 8(11)(d) of the Act.

The effect of this Determination is that such a payment will not be regarded as income under the Act, so that if a social security recipient receives such a payment, it will be exempt from the social security income test.

 

Explanation of Provisions

Part 1

Section 1 of the Determination states the name of the Determination.

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

Section 3 contains definitions of certain terms used in the Determination. The terms “South Australian Stolen Generations Reparations Schemeand “reparation payment” are defined.

Part 2

Section 4 specifies that a payment made to a person under the South Australian Stolen Generations Reparations Scheme is an exempt lump sum for the purposes of paragraph 8(11)(d) of the Social Security Act 1991. Such an amount will be regarded as an exempt lump sum from the date the payment is received by the person.

Consultation

This determination was made at the request of the South Australian Department of State Development.

The Department of Veterans’ Affairs and the Department of Agriculture and Water Resources were consulted.

This determination will be beneficial to persons affected as it exempts certain South Australian Government payments from the social security income test. As a result, public consultation was considered unnecessary.              

Regulatory Impact Analysis

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


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Social Security Exempt Lump Sum (South Australian Stolen Generations Reparations Scheme) Determination 2016

The effect of the Determination is that a person who receives a reparation payment from the South Australian Government under the Stolen Generations Reparations Scheme will not have that payment assessed as income under the social security law.

Human rights implications

The Determination engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

The Determination will operate beneficially as a reparation payment will not be taken into account when assessing a person’s eligibility or rate of social security entitlements under the social security income test. If the reparation payment is not exempted, a person in receipt of the reparation payment may not be eligible for a social security payment or, if they are eligible, their rate of payment might be reduced. The Determination is therefore consistent with the promotion of the right to social security.

The exemption of the reparation payment from the income test on receipt does not alter the fact that any ongoing income generated by the lump sum is counted under the income test, and any assessable asset produced from the lump sum is counted under the social security assets test. This is consistent with the treatment of other lump sum payments exempted under paragraph 8(11)(d) of the Act.

Conclusion

This Determination supports a person’s human right to social security.

Andrew Whitecross, Branch Manager, Rates and Means Testing Policy Branch, as a delegate of the Secretary of the Department of Social Services.

Overview

The Social Security Exempt Lump Sum (South Australian Stolen Generations Reparations Scheme) Determination 2016 was enacted to address a specific gap in the application of social security laws to reparation payments made under the South Australian Stolen Generations Reparations Scheme. This legislation was introduced to ensure that lump sum payments made to individuals affected by the Stolen Generations are not counted as income under the Social Security Act 1991, thereby not impacting the recipients' social security entitlements. The determination was made by Andrew Whitecross, Branch Manager of the Rates and Means Testing Policy Branch, as a delegate of the Secretary of the Department of Social Services. The policy objective is to uphold the human right to social security by ensuring that reparation payments do not disadvantage recipients in their eligibility or rate of social security benefits.

Scope and Application

The Social Security Exempt Lump Sum (South Australian Stolen Generations Reparations Scheme) Determination 2016 applies to individuals who receive a reparation payment under the South Australian Stolen Generations Reparations Scheme. These are payments made by the South Australian Government to Aboriginal persons who were removed from their parents or family as children before 31 December 1975 without a court order and whose usual place of residence when removed was South Australia or who were removed by South Australian authorities. The Determination ensures that these reparation payments are not treated as income under the Social Security Act 1991, thereby exempting them from the social security income test. This ensures that the receipt of such a payment does not affect a person’s eligibility for or rate of social security payments. The Determination is a Commonwealth measure but specifically applies to reparation payments made by the South Australian Government, highlighting an intergovernmental approach to social welfare. The scope of the Determination is confined to the specific context of reparation payments under the South Australian Stolen Generations Reparations Scheme, with no broad application to other types of lump sums or payments.

Key Provisions

The Social Security Exempt Lump Sum (South Australian Stolen Generations Reparations Scheme) Determination 2016 establishes that payments made under the South Australian Stolen Generations Reparations Scheme are exempt lump sums for the purposes of the Social Security Act 1991. Section 4 of the Determination specifies that any reparation payment received by a person under this scheme is not to be considered income for the purposes of the social security income test. This means that if a person who receives social security benefits also receives a reparation payment, the lump sum itself will not affect their eligibility or the amount of their social security benefits. The Determination imposes clear obligations on the parties involved. The primary obligation lies with the South Australian Government, which must ensure that reparation payments are made in accordance with the scheme's criteria. For the recipients of these payments, the obligation is to correctly report the receipt of the reparation payment to the Department of Social Services, ensuring that their social security benefits are not adversely affected by the receipt of this lump sum. Failure to comply with the requirements of this Determination could lead to potential inaccuracies in the assessment of social security benefits. While the Determination itself does not specify particular offences, penalties, or civil/criminal consequences for non-compliance, the broader social security framework includes provisions for penalties in cases of incorrect reporting or failure to report income. These penalties can include financial penalties, overpayments that must be repaid, or in severe cases, criminal charges for fraud. It is essential for both the South Australian Government and the recipients to adhere to the terms of the Determination to avoid any adverse consequences under the social security system.

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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.