Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2018

Administered by Department of Social Services

Legislation au F2018L01563 In force Legislative Instrument

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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the Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1) will be repealed by this Determination.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

Overview

The Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2018, enacted to address the need for flexibility in accessing advance payments of social security entitlements for specific recipients, was made under the authority of the Social Security Act 1991. This Determination was introduced by the Australian Government and aims to provide a more immediate financial support mechanism for Austudy and Youth Allowance recipients who are either undertaking or about to undertake an approved course of study or who are new apprentices or about to become new apprentices. This change was intended to alleviate financial strain for these individuals by allowing them to access their social security entitlements sooner than the standard three-month waiting period. The previous exemption framework, established by the Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1), was preserved and updated with this new Determination, which also repealed the earlier version. The policy objective is to support the educational and vocational pathways of young Australians without imposing undue financial burdens during critical transitional periods.

Scope and Application

The Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2018 applies to individuals who have applied for an advance payment of a social security entitlement under the Social Security Act 1991. Specifically, it pertains to recipients of Austudy and Youth Allowance who are either undertaking or about to undertake an approved course of study or are new apprentices or about to be new apprentices. This Determination provides a waiver of the waiting period requirement, allowing eligible individuals to access their social security entitlements more quickly. The scope of the Act is national, as it is a Commonwealth instrument, thereby extending its application across Australia. The Determination does not adversely affect the rights of any person beyond the Commonwealth and does not impose additional liabilities on individuals outside of the legislative intent. Additionally, the power to make this Determination is not limited by the Act itself but is subject to the broader legislative framework provided by the Acts Interpretation Act 1901, which allows for the repeal, amendment, or variation of such instruments.

Key Provisions

The main operative sections of this Determination are sections 6(1) and 6(2), which waive the waiting period for advance payment of entitlement for Austudy and Youth Allowance recipients who meet certain criteria. Section 6(1) waives the requirement for Austudy recipients, while section 6(2) waives the requirement for Youth Allowance recipients who are either undertaking or about to undertake an approved course of study, or are new apprentices or about to become new apprentices (section 6). This waiver is made under the authority granted by subsection 1061A(2) of the Social Security Act 1991. The obligations imposed on the parties or entities governed by this Determination are primarily on the Secretary of the Department of Social Services, who must ensure that the waiting period for advance payment is waived for eligible Austudy and Youth Allowance recipients as specified in sections 6(1) and 6(2). This includes verifying that the applicants meet the criteria of being either undertaking or about to undertake an approved course of study or being new apprentices or about to become new apprentices (section 6). The Secretary must also ensure that the repeal of the previous Determination, the Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1), is effected as stated in section 4 and Schedule 1. There are no specific offences, penalties, or civil/criminal consequences mentioned for breach of this Determination. However, any breach of the Social Security Act 1991, under which this Determination is made, could result in penalties as outlined in that Act. The Determination itself is designed to be beneficial and does not impose any new liabilities on individuals other than the Commonwealth. The repealed Determination, the Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1), would have been subject to the same potential penalties and consequences as outlined in the Social Security Act 1991.

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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.