EXPLANATORY STATEMENT
Social Security (Participation Exemption – Parenting Order) (DEWR) Instrument 2007
Legislative authority
This instrument is made by the Secretary of the Department of Employment and Workplace Relations under subsections 502D(5), 542FA(5) and 602C(5) of the Social Security Act 1991 (the Act).
Explanation of the determination
The purpose of the instrument is to provide relatives (but excluding parents) who care for a child under a parenting order issued under the Family Law Act 1975 as a class of people eligible for an exemption from participation requirements of up to 12 months. The instrument is relevant for parenting payment, newstart allowance and youth allowance (except for new apprentices or people undertaking full-time study under section 541B of the Act).
Recipients of parenting payment, youth allowance and newstart allowance are generally required to meet participation requirements in order for income support to be payable to them. However, in some situations the circumstances of principal carers of children are such that an exemption from these participation requirements is considered appropriate.
Under sections 502D, 542FA and 602C of the Act, the Secretary can make determinations exempting people from the participation requirements for parenting payment, youth allowance and newstart allowance respectively for up to 12 months. Subsections 502D(5), 542FA(5) and 602C(5) of the Act authorise the Secretary to issue legislative instruments defining the classes of people eligible for participation exemption determinations under subsections 502D(4), 542FA(4) and 602C(4).
The Government considers that relatives who care for a child living with them under a parenting order issued under the Family Law Act 1975 should be a class of people who are eligible for an exemption from participation requirements. The instrument defines that class of people as eligible for participation exemption determination.
Where a class of persons are specified under subsections 502D(5), 542FA(5) and 602C(5) as being eligible for a participation exemption, subsections 502D(4), 542FA(4) and 602C(4) require also that the Secretary be satisfied that the person’s circumstances are such that the person should not be required to meet any of the participation requirements. Where exemptions are granted for classes of persons specified in this instrument, the Secretary is satisfied that person’s should not be required to meet any of the participation requirements wherever a person is eligible for an exemption under this instrument. That is, where a relative is caring for a child living with them under a parenting order the Secretary is satisfied that the person should not be required to meet any of the participation requirements. This instruction will also be provided in the Guide to Social Security Law.
Explanation of the provisions
Section 1 of the instrument sets out the name of the instrument. Section 2 sets out the commencement date of the instrument, being the day after the date of registration (in accordance with paragraph 12(1)(d) of the Legislative Instruments Act 2003).
Section 3 sets out the interpretation of terms used in the instrument.
Section 4 defines the class of persons for whom the Secretary can issue a participation requirement exemption under sections 502D, 542FA and 602C of the Act. For a person to be eligible for the exemption, he or she must satisfy the criteria in paragraphs 4(2)(a), (b), (c) and (d).
Paragraph (a) requires that a parenting order made under the Family Law Act 1975 be in force requiring a child to live with the person. While there are a range of parenting orders which might be made under the Family Law Ac 1975, for a person to be eligible for an exemption under this instrument, the parenting order must require the child to live with that person.
Paragraph (b) requires that the person is complying with the terms of that parenting order (including that the child is living with the person).
Paragraph (c) requires that the person with whom the child is ordered to live is a relative (other than the parent) of the child. Parents are not able to be considered a class of people eligible to receive an exemption under subsections 502D(4), 542FA(4) and 602C(4) of the Act. Nevertheless, parents can obtain participation requirement exemptions under other subsections of those provisions, and under other provisions of the Act.
Paragraph (d) requires that the person be the principal carer of a child (the child does not have to be the child specified in the parenting order). The term principal carer is defined by subsections 5(15) to 5(24) of the Act.
Consultation
The Department of Prime Minister and Cabinet was consulted to ensure the scope of the definition of relative (section 3) appropriately reflected the intention of Government. The Attorney General’s Department was consulted to ensure the instrument appropriately provided for state legislation.
The Department of Families, Community Services and Indigenous Affairs were consulted with regard to the making of a similar instrument for recipients of Special Benefit. This instrument will make a determination under subsection 731DB(5).
The instrument does not adversely affect any person’s rights or obligations, and has no effect on business.