Explanatory Statement

Social Security (Participation Exemption – Parenting Order) (DEWR) (Revocation) Instrument 2007

Legislative authority

The Social Security (Participation Exemption – Parenting Order) (DEWR) (Revocation) Instrument 2007 (the Revocation Instrument) is made by the Secretary of the Department of Education, Employment and Workplace Relations under subsections 502D(3), 502D(5), 542FA(3), 542FA(5), 602C(3) and 602C(5) of the Social Security Act 1991 (the Act).

Summary

The Revocation Instrument revokes the Social Security (Participation Exemption – Parenting Order) (DEWR) Instrument 2007 (the Original Instrument).  The Original Instrument will become superfluous with the commencement of amendments to the Act, put in place by Schedule 1 of the Social Security Amendment (2007 Measures No. 2) Act 2007, on 1 January 2008.  Those amendments enable the making of determinations by the Secretary which exempt non-parent principal carers of children from the participation requirements for parenting payment, youth allowance, newstart allowance, and special benefit.

Background

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 for whom the Secretary can grant participation exemption determinations under subsections 502D(4), 542FA(4) and 602C(4).

On 8 February 2007, the then Secretary of the Department of Employment and Workplace Relations made the Original Instrument under subsections 502D(5), 542FA(5) and 602C(5) of the Act, and it commenced on 13 February 2007.  It permitted the Secretary to make determinations granting participation exemptions to people who were non-parent relatives of children (e.g. grand-parents, uncles, aunts) who were the principal carers of children under parenting orders under the Family Law Act 1975.  The purpose of the Original Instrument was to provide such people with participation exemptions under the social security law equivalent to parents who were principal carers of children.

However, subsections 502D(3), 542FA(3) and 602C(3) of the Act will be amended on 1 January 2008 to enable the Secretary to grant participation exemptions to non-parent principal carers of children.  These amendments are made by the Social Security Amendment (2007 Measures No. 2) Act 2007, and are described in the Explanatory Statement to the relevant Bill.

As a consequence of these amendments to the Act, the Original Instrument will become superfluous from 1 January 2008.  Accordingly, it will be revoked by the Revocation Instrument.  The Revocation Instrument also re-makes all pre-existing determinations granting participation exemptions to non-parent principal carers as new determinations under the amended subsections 502D(3), 542FA(3) and 602C(3) of the Act.

A substantively identical instrument, in relation to participation exemption determinations for special benefit, is being made by  the Secretary of the Department of Families, Housing, Community Services, and Indigenous Affairs under subsections 731DB(3) and 731DB(5) of the Act.

Explanation of the provisions

Section 1 – Name of instrument

The instrument is the Social Security (Participation Exemption – Parenting Order) (DEWR) (Revocation) Instrument 2007.

Section 2 – Commencement

The instrument commences on the later of:

• 1 January 2008 (the same day that relevant amendments to subsections 502D(3), 542FA(3) and 602C(3) of the Act commence); or
• the day after the day it is registered on the Federal Register of Legislative Instruments.

Section 3 – Revocation

The instrument revokes the Social Security (Participation Exemption – Parenting Order) (DEWR) Instrument 2007.

Section 4 – Transition of pre-existing determinations

As a result of the revocation of the Social Security (Participation Exemption – Parenting Order) (DEWR) Instrument 2007, existing participation exemption determinations under subsections 502D(4), 542FA(4) and 602C(4) of the Act in favour of non-parent principal carers need to be remade under the new subsections 502D(3), 542FA(3) and 602C(3).

Section 4 of the instrument makes new determinations under subsections 502D(3), 542FA(3) and 602C(3) of the Act identical to any previous determinations made under subsections 502D(4), 542FA(4) and 602C(4) which were due to expire on or after the day the instrument commenced.  Each new determination expires at the same time the determination it replaces would have, had the latter determination continued past the day the instrument commenced.

Consultation

The Department of Education, Employment and Workplace Relations has consulted with the Department of Families, Housing, Community Services and Indigenous Affairs regarding the revocation of the Social Security (Participation Exemption – Parenting Order) (FaCSIA) Instrument 2007.

As the Revocation Instrument merely revokes an instrument which has become superfluous because of amendments to the Act, and maintains pre-existing participation exemptions, it has no impact on the rights or obligations of any person.  Consequently, no further consultation on the Revocation Instrument has taken place.

Regulatory impact analysis

The Revocation Instrument has no effect on business or competition.  Consequently, no regulatory impact analysis as been undertaken.