Social Security (Participation Exemption – Parenting Order) (FaCSIA) Instrument 2007

Overview

The Social Security (Participation Exemption – Parenting Order) (FaCSIA) Instrument 2007 was enacted to address a gap in the Social Security Act 1991 concerning the exemption of relatives, excluding parents, from participation requirements when they are caring for a child under a parenting order issued under the Family Law Act 1975. This Instrument was created by the Secretary of the Department of Families, Community Services and Indigenous Affairs under subsection 731DB(5) of the Social Security Act 1991, with the policy objective of providing these relatives with a 12-month exemption from participation requirements. The aim is to ensure that relatives who are not parents but are responsible for the care of a child under a parenting order do not face unnecessary barriers in accessing social security benefits. This legislative instrument is designed to support these relatives, recognising their unique circumstances and the challenges they face in meeting participation requirements.

Scope and Application

The Social Security (Participation Exemption – Parenting Order) (FaCSIA) Instrument 2007 applies to relatives who are not the parents of a child and are caring for the child under a parenting order issued under the Family Law Act 1975. These relatives can be granted an exemption from the participation requirements for special benefit for up to 12 months. The exemption is designed to accommodate the unique circumstances of principal carers of children, thereby ensuring they are not unduly burdened by participation requirements that may hinder their ability to care for the child effectively. The Instrument is applicable nationally across Australia, as it is made under the Social Security Act 1991, a Commonwealth Act. The exemption is contingent upon several criteria: the existence of a parenting order under the Family Law Act 1975 that requires the child to live with the relative, compliance with the terms of the parenting order, the relative being a non-parental relative of the child, and the relative being the principal carer of the child. The exemption can be granted by the Secretary of the Department of Families, Community Services and Indigenous Affairs, who must be satisfied that the relative should not be required to meet any participation requirements. This Instrument does not affect any person's rights or obligations and has no effect on business, as clarified through consultations between the Department of Employment and Workplace Relations and other relevant departments.

Key Provisions

The Social Security (Participation Exemption – Parenting Order) (FaCSIA) Instrument 2007 (Instrument) is designed to provide a specific class of relatives with exemptions from participation requirements for social security benefits. The primary sections of the Instrument include Section 1, which names the Instrument; Section 2, which outlines the commencement date; Section 3, which provides definitions for terms used; and Section 4, which defines the class of people eligible for participation requirement exemptions (section 4). To be eligible, a person must meet all four criteria set out in paragraphs 4(2)(a) to 4(2)(d). Specifically, a parenting order under the Family Law Act 1975 must be in force requiring a child to live with the person (4(2)(a)), the person must be complying with the terms of the parenting order (4(2)(b)), the person must be a relative of the child, excluding the child's parent (4(2)(c)), and the person must be the principal carer of a child (4(2)(d)). Under this Instrument, the Secretary of the Department of Families, Community Services and Indigenous Affairs has the authority to exempt relatives, other than parents, who care for a child under a parenting order from participation requirements for up to 12 months. The Secretary must be satisfied that the person's circumstances warrant an exemption from these requirements, as stipulated in subsection 731DB(4) of the Social Security Act 1991 (the Act). The exemption applies to those who are not parents but are relatives who are the principal carers of a child and are complying with a parenting order requiring the child to live with them. This exemption aims to accommodate the special circumstances of these relatives who are principal carers. The Instrument imposes several obligations and requirements on the parties it governs. Firstly, the person seeking an exemption must be in compliance with a valid parenting order issued under the Family Law Act 1975, which mandates that the child live with them. This order must be in force and adhered to, ensuring that the child resides with the relative as specified. Secondly, the person must be a relative of the child, specifically excluding parents. This distinction is crucial as parents can obtain exemptions under other provisions of the Act. Thirdly, the person must be identified as the principal carer of a child, although the child does not have to be the one specified in the parenting order. The definition of "principal carer" is provided in subsections 5(15) to 5(24) of the Act. The Act does not explicitly state offences, penalties, or civil/criminal consequences for breaches of the Instrument. However, non-compliance with the conditions of the exemption or failure to meet the eligibility criteria may result in the cessation of the exemption, leading to the re-imposition of participation requirements. Recipients of special benefit who do not meet these requirements may face penalties such as the suspension or termination of their benefits, in accordance with the general provisions of the Social Security Act 1991. The maximum period for which an exemption can be granted is 12 months, as per the authority granted under section 731DB of the Act.