Social Security (Payment Pending - ARO Application for Review) (FaCSIA) Guidelines 2007

Administered by Department of Social Services

Legislation au F2007L02309 Not in force Legislative Instrument

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Explanatory Statement

 

Social Security (Payment Pending—ARO Application for Review) (FaCSIA) Guidelines 2007

 

Authority

Under section 132 of the Social Security (Administration) Act 1999 (the 1999 Act), the Minister by legislative instrument, is to determine guidelines for the exercise of the Secretary’s power to make declarations under section 131 to continue social security payments (in this case special benefit) to persons who are seeking review of a decision imposing a compliance penalty period.

 

The Social Security (Payment Pending—ARO Application for Review) (FaCSIA) Guidelines 2007 (the 2007 Guidelines) are made under section 132 of the 1999 Act.

 

Purpose

The 2007 Guidelines replace the Social Security (Payment Pending—ARO Application for Review) Guidelines 2004 (the 2004 Guidelines). The 2004 Guidelines have been revoked by a separate instrument: the Social Security (Payment Pending – ARO Application for Review) Guidelines 2004 – Revocation 2007.

 

The 2007 Guidelines take into account the amendments of the Social Security Act 1991 (the 1991 Act) made by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (the 2005 Act) and the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Consequential Amendments Act 2006.

 

Explanation

The 2007 Guidelines deal with the continuation of special benefit payments to persons who are subject to a compliance penalty period, a period during which the payments would otherwise be withheld for breaches of their obligation to seek work or participate in other activities under the 1991 Act. The 2007 Guidelines allow payments to continue until a review under section 135 of the 1999 Act is carried out by the Secretary, the Centrelink Chief Executive Officer (CEO) or an authorised review officer (ARO) of the adverse decision that gave rise to the compliance penalty period.

 

Section 1 provides that the name of the 2007 Guidelines is the Social Security (Payment Pending – ARO Application for Review) (FaCSIA) Guidelines 2007.

 

Section 2 provides that the 2007 Guidelines commence immediately after the commencement of the Social Security (Payment Pending – ARO Application for Review) Guidelines 2004 – Revocation 2007.

 

Section 3 sets out various interpretative provisions relevant to the 2007 Guidelines and section 4 sets out the purpose of the 2007 Guidelines.

 

Subsection 5(1) of the 2007 Guidelines provides, subject to subsections 5(2) and (3), that, in the case of a person in receipt of special benefit, who

 

  • has had an adverse decision made that results in a compliance penalty period  of 8 weeks because of repeated or more serious failure, as set out in section 745 of the 1991 Act, and

 

  • makes an application for review to the Secretary under section 129 of the 1999 Act,

 

the Secretary must declare that the person is to continue to receive special benefit pending the determination of the review, as if the adverse decision had not been made.

 

This ensures that all persons who have had the mandatory compliance penalty period of 8 weeks imposed because of repeated or more serious failure will receive special benefit while seeking a review of the penalty. 

 

Subsection 5(2) of the 2007 Guidelines provides that if the application for review is withdrawn under section 130 of the 1991 Act then subsection 5(1) of the 2007 Guidelines ceases to apply (that is the compliance penalty period will be reinstated).

 

Subsection 5(3) of the 2007 Guidelines provides that subsection 5(1) of the 2007 Guidelines will not apply if the compliance penalty period has been completed before the application for review to the Secretary is made. 

 

Section 6 of the 2007 Guidelines is a savings provision that is made necessary by savings provisions in the 2005 Act which preserve certain activity test non-payment periods (non payment periods are now subsumed under the term “compliance penalty period”).  Section 6 provides that section 6 or 7 (as applicable) of the 2004 Guidelines continues to apply in relation to the Secretary’s power under section 131 of the 1999 Act as if section 6 or 7 of the 2004 Guidelines had not been repealed by these Guidelines.

 

The 2007 Guidelines are a legislative instrument.

 

Consultation regarding this instrument was undertaken with the Department of Employment and Workplace Relations and the Department of Education, Science and Training.

 

Commencement

The 2007 Guidelines come into effect immediately after the registration of the Social Security (Payment Pending – ARO Application for Review) Guidelines 2004 – Revocation 2007 on the Federal Register of Legislative Instruments.

 

Overview

The Social Security (Payment Pending—ARO Application for Review) (FaCSIA) Guidelines 2007 were enacted to address the need for a coherent framework governing the continuation of special benefit payments to individuals who are subject to a compliance penalty period, during which such payments would otherwise be withheld. This legislative instrument was introduced under section 132 of the Social Security (Administration) Act 1999, by the Minister for Families and Community Services and Indigenous Affairs. The guidelines replace the previous Social Security (Payment Pending—ARO Application for Review) Guidelines 2004, taking into account amendments made by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 and the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Consequential Amendments Act 2006. The primary policy objective of these guidelines is to ensure that individuals who face an 8-week compliance penalty period due to repeated or more serious failures have their special benefit payments continued while they seek a review of the adverse decision, thereby providing them with a safety net during the review process.

Scope and Application

The Social Security (Payment Pending—ARO Application for Review) (FaCSIA) Guidelines 2007 applies to individuals who are recipients of special benefit and are subject to a compliance penalty period, a consequence of failing to meet obligations to seek work or participate in other activities under the Social Security Act 1991. The guidelines govern the continuation of special benefit payments while an application for review of an adverse decision is pending, ensuring that these individuals do not suffer financial hardship during the review process. The scope of the Act is Commonwealth-wide, impacting those subject to the Social Security Act 1991 and its amendments. Exclusions include cases where the compliance penalty period has been completed before an application for review is made, or where the application for review is withdrawn. The application of the Act can be further extended or restricted through subordinate instruments.

Key Provisions

The Social Security (Payment Pending—ARO Application for Review) (FaCSIA) Guidelines 2007 (the 2007 Guidelines) address the continuation of special benefit payments for individuals subject to a compliance penalty period. This period, otherwise resulting in the withholding of payments, is imposed due to breaches of obligations under the Social Security Act 1991. Section 5(1) of the 2007 Guidelines mandates that if an individual in receipt of special benefit receives an adverse decision resulting in an 8-week compliance penalty period for repeated or more serious failures, and applies for a review to the Secretary, the Secretary must declare that the individual will continue to receive special benefit during the review process, as if the adverse decision had not been made. This ensures that all eligible persons receive benefits while their penalty is under review. The obligations under the 2007 Guidelines primarily fall on the Secretary, who must ensure the continued receipt of special benefits by eligible applicants during the review of compliance penalty periods. The Secretary is also responsible for determining whether the application for review has been withdrawn or if the compliance penalty period has been completed before the review is initiated. If the application is withdrawn under section 130 of the Social Security Act 1991, the provisions of subsection 5(1) of the 2007 Guidelines cease to apply, meaning the compliance penalty period is reinstated. Similarly, if the compliance penalty period is completed before the application for review is made, subsection 5(1) does not apply. The 2007 Guidelines do not explicitly outline specific offences, penalties, or civil and criminal consequences for breach. However, non-compliance with the obligations set forth could potentially lead to legal challenges or administrative penalties. The overarching legislation, the Social Security (Administration) Act 1999, includes provisions for penalties related to breaches of social security laws, although these are not detailed within the 2007 Guidelines themselves. The 2007 Guidelines serve as a legislative instrument to clarify the process and obligations for continuing special benefit payments pending review, ensuring compliance with the intent and requirements of the 1999 Act.

Legal classification tags

Area of Law
Social Security Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Savings Provisions
Compliance Obligations

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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.