Explanatory Statement
Issued by the authority of the Minister for Social Services
Social Security Act 1991
Social Security (Prospective Determinations for Some Recipients) Guidelines 2026
Purpose
The Social Security (Prospective Determinations for Some Recipients) Guidelines 2026 (Guidelines) provide guidance to the Secretary in deciding whether the criteria for making a prospective determination that a person is qualified for parenting payment, youth allowance or jobseeker payment are satisfied.
Background
Parenting payment, youth allowance and jobseeker payment recipients who have participation requirements, are required to demonstrate that they continue to qualify for payment on a fortnightly basis. However, under subsections 500E(1), 546(1) and 600(1) of the Social Security Act 1991 (the Act), the Secretary can make a prospective determination for parenting payment, youth allowance and jobseeker payment. That is, the Secretary can determine in advance that a person will be qualified for payment for a period longer than a fortnight with the consequence that the person is not required to demonstrate their qualification on a fortnightly basis during that period.
In making such a determination, paragraphs 500E(1)(b), 546(1)(b) and 600(1)(b) of the Act provide that the Secretary must be satisfied of several criteria at the start of the prospective determination period. These are:
- that a person is reasonably expected to qualify for parenting payment, youth allowance or jobseeker payment during the period;
- it is reasonable to expect that parenting payment, youth allowance or jobseeker payment will be payable to the person for the period; and
- the person will comply with the Act during the period.
Paragraphs 500E(2)(a), 546(2)(a) and 600(2)(a) of the Act provide that the Minister must determine guidelines for making decisions under paragraphs 500E(1)(b), 546(1)(b) and 600(1)(b). This legislative instrument provides guidelines for the purposes of paragraphs 500E(2)(a), 546(2)(a) and 600(2)(a).
These Guidelines repeal and replace the Social Security (Prospective Determinations) Guidelines 2015 (2015 Guidelines), which are due to sunset on 1 April 2026. The Guidelines are remade in similar terms as the 2015 Guidelines, with minor updates to align the drafting with contemporary participation and notification requirements. The Guidelines also update references to newstart allowance, which ceased from 20 March 2020 and was replaced by jobseeker payment.
Commencement
The Guidelines commence on the day after they are registered on the Federal Register of Legislation.
Authority
The Guidelines are made under subsections 500E(2), 546(2) and 600(2) of the Act.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. In making the Guidelines, the Minister is relying on this subsection in conjunction with the instrument-making powers in paragraph 500E(2)(a), 546(2)(a) and 600(2)(a).
The Minister is also relying on the revocation power in paragraphs 500E(2)(b), 546(2)(b), 600(2)(b) of the Act. These Guidelines commence immediately after the repeal of the 2015 Guidelines, as required by subsections 500E(2), 546(2) and 600(2) of the Act.
The Guidelines are a legislative instrument for the purposes of the Legislation Act 2003 and are subject to disallowance.
Consultation
The Department of Social Services consulted with the following agencies on the text of the Guidelines:
- Services Australia, as the delivery agency for the relevant payments. Services Australia supported the proposed textual updates and confirmed that the intent of the Guidelines remains aligned with operational practice.
- The Department of Employment and Workplace Relations (DEWR), as the agency responsible for participation and compliance policy for participation payment recipients. DEWR contributed to the updating of the language in the Guidelines to reflect contemporary requirements.
- The National Indigenous Australians Agency (NIAA), as the agency responsible for the Remote Australia Employment Service (RAES). NIAA supported the intent of the Guidelines.
The Department of Social Services did not consult with social security recipients likely to be affected by the Guidelines, as the Guidelines are remade in similar terms to the 2015 Guidelines, with minor updates to reflect contemporary practices and references.
Availability of independent review
A decision made under the social security law, as informed by the Guidelines, is subject to internal and external review under Parts 4 and 4A of the Social Security (Administration) Act 1999.
Explanation of the provisions
Details of the Social Security (Prospective Determinations for Some Recipients) Guidelines 2026
Section 1 – Name
Section 1 states how the instrument is to be cited, that is, as the Social Security (Prospective Determinations for Some Recipients) Guidelines 2026 (Guidelines).
Section 2 – Commencement
Section 2 sets out a table providing for the commencement of the Guidelines on the day after the Guidelines are registered on the Federal Register of Legislation.
Section 3 – Authority
Section 3 provides that the Guidelines are made under subsections 500E(2), 546(2) and 600(2) of the Social Security Act 1991 (the Act).
Section 4 – Schedules
Section 4 provides that each instrument that is specified in a Schedule to the Guidelines is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Guidelines has effect according to its terms.
Section 5 – Definitions
Section 5 contains definitions of certain terms used in the Guidelines.
Section 6 – Circumstances relating to criteria
Section 6 provides guidance to the Secretary in making decisions about prospective determinations.
If the Secretary is satisfied that one or more of the matters listed in paragraphs 6(a) to (d) of the Guidelines apply to the person, the Secretary may determine that the person does not satisfy the criteria relating to prospective determinations and a prospective determination cannot be made under subsection 500E(1), 546(1) or 600(1) of the Act.
The first matter in paragraph 6(a) of the Guidelines is where a person is required to provide additional evidence that the person satisfies paragraph 500(2A)(a), 500(2B)(a), 540(2)(a) or 593(1AC)(a) of the Act, as relevant in the particular case. Where these provisions apply to a person, they are relevant to the person’s qualification for parenting payment, youth allowance or jobseeker payment. In determining if a person meets the criteria for a prospective determination, the Secretary must consider that the person may reasonably be expected to satisfy the qualification requirements for their payment during the prospective period, and this includes paragraph 500(2A)(a), 500(2B)(a), 540(2)(a) or 593(1AC)(a) where applicable.
In general, these provisions relate to the person satisfying the employment pathway plan requirements, and satisfying the Employment Secretary that they are willing to actively seek and to accept and undertake suitable paid work in Australia. The term “Employment Secretary” is defined in subsection 23(1) of the Act as the Secretary of the “Employment Department”, which is also defined in subsection 23(1). In relation to youth allowance, subparagraph 540(2)(a)(iii) contains an additional requirement that the person is not undertaking full-time paid work of at least 35 hours per week.
The term “satisfies the employment pathway requirements” is defined in subsection 23(1) of the Act by reference to whether the person enters into an employment pathway plan if required to do so by the Employment Secretary under subsection 40A(1) or 40A(2) of the Social Security (Administration) Act 1999 (Administration Act), and while such a plan is in force, whether the person satisfies the Employment Secretary that they are complying with the requirements in that plan.
Paragraph 6(a) of the Guidelines applies where a person who is subject to these participation requirements, and the work hours requirement outlined above in the case of youth allowance, is required under a provision of the social security law to provide additional evidence that they are satisfying these requirements. This may be required, for example, by notice given to the person by Services Australia under section 63 or 68 of the Administration Act.
Under paragraph 6(b) of the Guidelines, if a parenting payment, youth allowance or jobseeker payment recipient has incurred an overpayment arising from a failure to comply with the provisions of the social security law, then the Secretary may determine the person does not satisfy the criteria relating to prospective determinations. This is intended to refer to circumstances where at least one debt has previously been raised by Services Australia under Part 5.2 of the Act, in relation to the person, because the person has failed to comply with a requirement of the social security law. This may have occurred at any time in the past while the person was a social security recipient, even if the previous debt was not in relation to their receipt of parenting payment, youth allowance or jobseeker payment.
Under paragraph 6(c) of the Guidelines, if a person has contravened a provision of the social security law, then the Secretary may determine the person does not satisfy the criteria relating to prospective determinations. This previous contravention may have occurred at any time in the past while the person was receiving a social security payment, which may not have necessarily been parenting payment, youth allowance or jobseeker, and did not necessarily result in a debt arising.
In relation to both paragraphs 6(b) and 6(c) of the Guidelines, in determining if a person meets the criteria for a prospective determination under subsection 500E(1), 546(1) or 600(1) of the Act, compliance during the prospective period is a specific criterion which the person must meet. If a person has previously failed to comply with the social security law, such as their notification requirements, there is an increased risk that a future failure may also occur. It may be necessary for such a person to report regularly to ensure that they continue to comply with relevant requirements. For example, if a person is required to regularly report any earnings, it is less likely that overpayments will arise in the future.
Finally, the Secretary may determine that a person does not satisfy the criteria for a prospective determination if there has or is likely to be an event or change of circumstances in relation to the person that might affect the person’s qualification for, or payability of, parenting payment, youth allowance or jobseeker payment. Whether the person may reasonably be expected to satisfy the qualification requirements for their payment, and whether is it reasonable to expect their payment will be payable during the prospective period, are specific criteria that must be met for a prospective determination under subsection 500E(1), 546(1) or 600(1) of the Act.
A change in a person’s circumstances, for example, becoming a member of a couple, could result in parenting payment, youth allowance or jobseeker payment no longer being payable to the person, in the event that their rate is reduced to nil due to their new partner’s income. This would mean the person would not satisfy the necessary criteria relating to prospective determinations.
Section 7 – Maximum prospective period
This section provides that a period for a prospective determination cannot be longer than 12 weeks.
Schedule 1 – Repeals
Item 1 repeals the Social Security (Prospective Determinations) Guidelines 2015. The Guidelines remake this sunsetting instrument in similar terms.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security Act 1991
Social Security (Prospective Determinations for Some Recipients) Guidelines 2026
The Social Security (Prospective Determinations for Some Recipients) Guidelines 2026 (Guidelines) are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The Guidelines provide guidance to the Secretary in deciding whether the criteria for making a prospective determination that a person is qualified for parenting payment, youth allowance or jobseeker payment are satisfied.
These Guidelines revoke and replace the Social Security (Prospective Determinations) Guidelines 2015.
Human rights implications
Right to social security
The Guidelines engage the right to social security in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Guidelines are compatible with Article 9 as they do not vary or limit an individual’s entitlement to social security. Rather they merely provide guidelines for making a determination that a person be considered entitled to a social security payment for a prospective period of time.
Where such a prospective determination is made, the individual will not have to continue to report fortnightly during the period. If a determination is not made, the individual will continue to have a fortnightly reporting regime. The social security payment a person receives is not affected.
The criteria to be considered in making a prospective determination are directly linked to the requirements in the Social Security Act 1991 (the Act) that the Secretary’s decision be based on whether a person is reasonably expected to remain qualified for parenting payment, youth allowance or jobseeker payment, that the payment is reasonably expected to be payable, and that the person will comply with applicable social security law requirements for the duration of the period. As such, the criteria in the Guidelines have no greater ambit than the power already provided for in the Act.
Right to an adequate standard of living
The Guidelines engage the right of individuals and their families to an adequate standard of living in Article 11 of the ICESCR. Article 28(2)(a) of the CRPD recognises the right of persons with disabilities to an adequate standard of living for themselves and families. The right to an adequate standard of living recognises the right of everyone to an adequate standard of living for all individuals and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions.
While the Guidelines set out limits to accessing a prospective determination and reduced, in frequency, reporting regime, the Guidelines have no effect on qualification for or access to social security payment and they do not limit the right to an adequate standard of living.
Conclusion
The Guidelines are compatible with human rights because they advance the protection of human rights and do not limit or preclude people from gaining or maintaining access to social security and an adequate standard of living in Australia.
The Hon Tanya Plibersek MP, Minister for Social Services