Social Security (Partially Asset-test Exempt Income Stream – Exemption) (FaHCSIA) Amendment Principles 2010 (No. 1)

Overview

The Social Security (Partially Asset-test Exempt Income Stream – Exemption) (FaHCSIA) Amendment Principles 2010 (No. 1) were enacted to address the gap in the Social Security (Partially Asset-test Exempt Income Stream – Exemption) (FACS) Principles 2005, ensuring the latter is consistent with the amendments introduced by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008. This was necessary to eliminate any potential discrimination against same-sex couples under the social security law. The principles were made by the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs under subsection 1118(1A) of the Social Security Act 1991, with the policy objective of aligning the asset test exemption criteria with the reforms that aim to provide equal treatment for same-sex couples. These amendment principles focus on updating references to 'spouse' or 'former spouse' to 'partner' or 'former partner', thereby ensuring the social security framework reflects contemporary legal definitions and societal changes.

Scope and Application

The Social Security (Partially Asset-test Exempt Income Stream – Exemption) (FaHCSIA) Amendment Principles 2010 (No. 1) amends the Social Security (Partially Asset-test Exempt Income Stream – Exemption) (FACS) Principles 2005 to align with amendments made by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008, thereby eliminating any possible discrimination against same-sex couples. These principles apply to individuals and couples receiving income streams that are subject to the assets test under the Social Security Act 1991. The principles provide a framework for determining the circumstances in which certain income streams are exempt from the assets test, ensuring that same-sex couples are treated on the same basis as heterosexual couples. The Amendment Principles have a national jurisdictional reach, as they are made under the authority of the Commonwealth and apply across Australia. The amendment principles do not introduce any new exclusions or exemptions beyond those already provided in the 2005 Principles, and they do not extend or restrict the application through subordinate instruments.

Key Provisions

The Social Security (Partially Asset-test Exempt Income Stream – Exemption) (FaHCSIA) Amendment Principles 2010 (No. 1) (Amendment Principles) primarily aim to update the Social Security (Partially Asset-test Exempt Income Stream – Exemption) (FACS) Principles 2005 (2005 Principles) to eliminate any discrimination against same-sex couples. This is achieved by incorporating amendments from the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Same-Sex Act). Specifically, Section 3 of the Amendment Principles amends the 2005 Principles as detailed in Schedule 1. This includes renaming the 2005 Principles to the Social Security (Partially Asset-test Exempt Income Stream – Exemption) (FaHCSIA) Principles 2005 and updating the term 'partner' to be consistent with the definition in the Social Security Act 1991 (Act). The obligations imposed by the Amendment Principles primarily revolve around ensuring that the 2005 Principles are updated to reflect changes in the law that aim to provide equal treatment for same-sex couples. This involves amending specific references in the 2005 Principles to replace terms such as 'spouse (or former spouse)' with 'partner (or former partner)'. For instance, Item 3 of Schedule 1 changes references in paragraphs 7(b) and 8(b) of the 2005 Principles to include 'primary beneficiary’s partner (or former partner)' instead of 'primary beneficiary’s spouse (or former spouse)'. Similarly, Item 4 modifies paragraph 7(c) to reflect this change. These amendments are necessary to ensure consistency with the Same-Sex Act and to uphold the principle of non-discrimination. In terms of penalties and consequences for breach, the Amendment Principles do not explicitly state any penalties or civil or criminal consequences for non-compliance. However, as these principles are made under the authority of the Social Security Act 1991, non-compliance with the Act's provisions could potentially lead to legal repercussions. The Act itself may outline penalties for breaches, but these are not detailed within the Amendment Principles. It is essential for those governed by these principles to ensure they adhere to the updated provisions to avoid any potential legal issues that may arise from non-compliance with the overarching social security laws.