EXPLANATORY STATEMENT
Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2018
Summary
Subsection 1061A(2) of the Social Security Act 1991 (the Act) allows the Secretary to determine that paragraph 1061A(1)(b) does not apply to a person who has applied for an advance of a social security entitlement (defined under section 23 of the Act).
The Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1) currently provides an exemption from having to satisfy paragraph 1061A(1)(b) of the Act for Austudy recipients and Youth Allowance recipients who are either undertaking or about to undertake an approved course of study or are new apprentices or about to be new apprentices. The Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2018 preserves these exemptions.
In addition to the power to make this Determination under subsection 1061A(2) of the Act, subsection 33(3) of the Acts Interpretation Act 1901 provides that 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. Accordingly, the Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1) will be repealed by this Determination.
Background
Under Part 2.22 of the Act, eligible income support recipients are able to apply for an advance payment of their social security entitlement. An advance payment is a lump sum payment of a future social security entitlement.
Paragraph 1061A(1)(b) of the Act provides that in order for a person to qualify for an advance payment of a social security entitlement the person must have been receiving an income support payment for a continuous period of three months immediately before the day on which the person’s application for the advance payment is made. However, subsection 1061A(2) of the Act permits the Secretary to waive this requirement for people who have applied for advance payments of Austudy or Youth Allowance.
The determination is beneficial in effect and does not adversely affect the rights of, or impose liabilities on, any person other than the Commonwealth.
Consultation
The determination has no impact on business or competition and is beneficial to social security claimants and recipients. Public consultation was therefore seen as unnecessary.
Regulation Impact Statement (RIS)
The Office of Best Practice Regulation has been consulted on the remaking of this determination without significant changes, and advised a Regulation Impact Statement or Certification Letter is not required (OBPR ID: 24190).
Explanation of Provisions
Section 1 of the determination states the name of the determination.
Section 2 states that the determination commences the day after it is registered.
Section 3 provides that the determination is made under subsection 1061A(2) of the Act.
Section 4 specifies that the Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1) is repealed as set out in Schedule 1.
Section 5 contains definitions.
The term approved course of education or study is defined in section 4 as having the meaning given by subsection 541B (5) of the Act. Subsection 541B (5) of the Act provides that a course is an approved course of education or study if it is a course determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act.
The term new apprentice is defined in section 5 as having the meaning given by subsection 23(1) of the Act, that is, a person who satisfies the requirements determined in the Social Security (New Apprentice) Determination 2016. New apprentices are also known as ‘Australian Apprentices’.
Subsection 6(1) provides that paragraph 1061A(1)(b) of the Act does not apply to a person who has applied for an advance payment of Austudy payment.
Subsection 6(2) provides that that paragraph 1061A(1)(b) of the Act does not apply to a person who has applied for an advance payment of Youth Allowance where that person:
- is undertaking, or about to undertake, an approved course of education or study; or
- is or is about to become, a new apprentice.
Schedule 1 – Repeals
Item 1 repeals the Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1).
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2018
The Social Security (Waiver of Waiting Period for Advance payment of Entitlement) Determination 2018 (the Determination) is 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
Subsection 1061A(2) of the Social Security Act 1991 (the Act) allows the Secretary to determine that paragraph 1061A(1)(b) does not apply to a person who has applied for an advance of a social security entitlement (defined under section 23 of the Act).
The Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1) currently provides an exemption from having to satisfy paragraph 1061A(1)(b) of the Act for Austudy and Youth Allowance recipients who are undertaking, or are about to undertake, an approved course of study, or are new apprentices or are about to be new apprentices. The Social Security (Waiver Period for Advance Payment of Entitlement) Determination 2018 preserves these exemptions.
Human rights implications
The human rights implications for this determination have been considered, particularly with reference to the right to social security contained within Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is concluded that the determination does not place limitations on human rights.
The determination waives the waiting period for advance payment for eligible Austudy and Youth Allowance recipients. The determination is beneficial in effect and does not adversely affect the rights of, or impose liabilities on, any person other than the Commonwealth.
Right to Social Security:
The determination engages the right to social security contained in Article 9 of the ICESCR.
The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.
Conclusion
It is concluded that the determination does not place limitations on human rights or on the right to social security.
Kathryn Campbell
Secretary of the Department of Social Services