EXPLANATORY STATEMENT
Issued by the authority of the Secretary of the Department of Social Services
Social Security Act 1991
Social Security (Youth Allowance) (Special Circumstances – Family) Instrument 2026
Purpose
The Social Security (Youth Allowance) (Special Circumstances – Family) Instrument 2026 (the Instrument) sets out matters that the Secretary (or a delegate) must take into account when determining if there are special circumstances relating to a person's family under section 542F of the Social Security Act 1991 (the Act). The effect of making such a determination is that the person is exempt, in respect of a period, from the general requirement of undertaking full-time study for youth allowance (student) purposes in section 540 of the Act.
Background
Under the Act, persons receiving youth allowance (student) are exempt, in respect of a period, from the general requirement of undertaking full-time study, in specified circumstances outlined in Part 2.11, Division 1, Subdivision C.
Relevantly, under section 542F, the Secretary (or a delegate) can determine an exemption in the case of a person experiencing domestic violence or other special family circumstances. This is where the recipient is the principal carer of one or more children and was subjected to domestic violence in the 26 weeks before the making of the determination, or the recipient is the principal carer of one or more children, and there are special circumstances relating to the person's family that make it appropriate to make the determination.
Under subsection 542F(3), the determination can be made for a period of up to 16 weeks at a time.
Under subsection 542F(2A), the Secretary (or a delegate) must, by legislative instrument, specify matters that they (or a delegate) must take into account in deciding whether there are special circumstances relating to a person's family that make it appropriate to make a determination under section 542F. The Instrument sets out those matters.
The matters in the Instrument are not exhaustive, as subsection 542F(2B) specifically states that the Secretary may take into account other matters in making a special family circumstances exemption determination.
In summary, the Instrument provides that when considering whether a special family circumstance exemption might apply, the Secretary must take into account the following matters:
- the caring responsibilities of a person who has one or more children who have not commenced school; and
- where the following matters prevent, or are likely to prevent, the person from undertaking full-time study:
- any significant caring responsibilities of the person that requires the person to temporarily care for an incapacitated family member (unless the Secretary is satisfied that those responsibilities could have been avoided with appropriate planning); and
- the emotional or physical well-being of a person who has ceased to be a member of a couple.
The Instrument also provides that the Secretary must take into account the impact of domestic violence on a person where the violence affects or is likely to affect the person’s capacity to meet undertaking full-time study requirements.
The current legislative instrument, the Social Security (Special Circumstances - Family) Specification 2016 (the 2016 Specification), is due to sunset on 1 April 2026. The 2016 Specification includes authorising provisions that are not included in the Instrument. This is because these provisions were repealed by the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2022.
The only authorising provision (for the purposes of the Instrument) that remains in the Act is section 542F, which relates to youth allowance (student) and exemptions from undertaking full-time study. The Instrument remakes the special circumstances for this cohort. References to “look for work” and “being able to participate in training activities” have been removed, as they are not relevant for this cohort.
Paragraph 6(2)(a) of the Instrument removes the previous requirement that a child must have turned 6 years old, for the purposes of the Secretary taking into account the caring responsibilities of the person. This was previously relevant in relation to looking for work activities, however, it is not required for full-time study requirements.
Subparagraph 6(2)(c)(ii) of the Instrument makes a change from former paragraph 5(2)(c) of the 2016 Specification to ensure that where a person has been subjected to domestic violence, and the domestic violence affects or is likely to affect a person’s capacity to meet “undertaking full-time study” requirements, the impact of the domestic violence is taken into account by the Secretary in deciding whether to make a determination in relation to the person.
Subparagraph 6(2)(d)(i) removes the previous requirement that a person ceased to be a member of a couple in the period of 4 weeks before the date of the proposed determination. The Instrument does not place a time limit on the breakdown of the relationship, for the purposes of the Secretary taking into account the person’s emotional or physical well-being.
Authority
The Instrument is made under subsection 542F(2A) of the Act. Under this provision, the Secretary must, by legislative instrument, specify matters that they (or a delegate) must take into account in deciding whether there are special circumstances relating to a person’s family that make it appropriate to make a determination under section 542F.
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. The Secretary has the power under subsection 542F(2A) of the Act to repeal the 2016 Specification and make the Instrument.
The Instrument is a legislative instrument for the purposes of the Legislation Act 2003 and is subject to disallowance.
Commencement
The Instrument commences on the day after it is registered on the Federal Register of Legislation.
Consultation
The Department of Social Services consulted Services Australia on the text of the Instrument because of impacts on youth allowance (student) recipients. Services Australia did not raise any concerns.
The Department of Social Services did not consult with social security recipients likely to be affected by the Instrument, given the Instrument is beneficial in nature.
The Instrument has been revised but now operates only in relation to youth allowance (student). This is due to the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2022, which repealed other authorising provisions present in the 2016 Specification.
A number of external stakeholders were consulted in the making of the 2016 Specification. The Department of Social Services determined that external consultation was not required for the Instrument, because it remakes the 2016 Specification in relation to youth allowance (student) in similar terms, with further beneficial changes.
Availability of independent review
A decision made under the social security law, as informed by the Instrument, 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 (Youth Allowance) (Special Circumstances – Family) Instrument 2026
Section 1 – Name
This section states how the instrument is to be cited, that is, as the Social Security (Youth Allowance) (Special Circumstances – Family) Instrument 2026.
Section 2 - Commencement
This section provides that the Instrument commences on the day after it is registered.
Section 3 - Authority
This section provides that the Instrument is made under subsection 542F(2A) of the Social Security Act 1991 (the Act).
Section 4 - Schedules
This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 repeals the Social Security (Special Circumstances - Family) Specification 2016 (see below).
Section 5 - Definitions
Section 5 defines terms that are used in the Instrument.
Section 6 - Matters to be taken into account in deciding whether there are special circumstances relating to a person’s family
Section 6 sets out the matters the Secretary must take into account in deciding whether there are special circumstances relating to a person’s family that make it appropriate to make a determination in relation to the person under section 542F of the Act.
Subsection 6(1) lists section 542F as the relevant provision which provides for the special family circumstances exemption. Section 542F operates only in relation to youth allowance (student). The matters that must be taken into account in determining if there are special family circumstances that make it appropriate to make the determination are set out in subsection 6(2).
Paragraphs 6(2)(a) and (b) are concerned with the caring responsibilities a person may have for others. Paragraph (a) requires such responsibilities to be taken into account if the person cares for one or more children who have not commenced school. This refers to the children specified in subsection 542F(2) of the Act, that is, children for whom the person is the principal carer. The term “principal carer” is defined in subsections 5(15) to (24) of the Act.
Unless the Secretary considers that the responsibilities could have been avoided with appropriate planning, paragraph (b) requires any significant caring responsibilities to be taken into account which:
- require the person to temporarily care for an immediate family member who is incapacitated due to illness or accident; and
- mean the person is prevented from, or likely to be prevented from, undertaking full-time study.
Paragraph 6(2)(b) takes account of the role of principal carer parents who may have responsibility in caring for children and other immediate family members. It acknowledges that if, for example, a child falls ill, the principal carer parent may need to be available on a full-time basis to care for the child. However, it is intended that if appropriate alternative arrangements are able to be made for the family member to be cared for, this alternative is used.
Where a person has been subjected to domestic violence and it affects or is likely to affect the person’s capacity to meet undertaking full-time study requirements, paragraph 6(2)(c) requires that the impact of the domestic violence needs to be taken into account in determining if it is appropriate that a person should receive a special circumstances exemption.
Paragraph 542F(2)(a) of the Act already enables the Secretary to make a determination in respect of people who have been subjected to domestic violence in the preceding 26 weeks. Such a determination also has the effect that a person is exempt from the relevant youth allowance (student) study requirements. Paragraph 6(2)(c) of this Instrument acknowledges there may be situations where this provision of the Act does not apply, but it is still relevant to consider the impact of domestic violence on the person.
One situation would be where a person has been subjected to domestic violence more than 26 weeks prior to the proposed determination, but the experience of domestic violence is continuing to have a direct impact on a person’s current capacity for undertaking full-time study. In these circumstances, a person may require a temporary exemption from having to meet the relevant study requirements. If the person was subjected to domestic violence in the 26 weeks prior to the determination being made, paragraph 542F(2)(a) of the Act will apply to the person, in which case it will not be necessary for the Secretary to consider whether paragraph 6(2)(c) of the Instrument applies.
The final matter that must be taken into account is the person’s emotional or physical well-being where the person has ceased to be a member of a couple. Under paragraph 6(2)(d), this needs to be taken into account where a person has ceased to be a member of a couple and the relationship breakdown has had a significant adverse impact on the person such that the person is unable to or likely to be unable to undertake full-time study.
A relationship breakdown can leave people in difficult circumstances or with intense emotional responses. Paragraph 6(2)(d) takes account of the situation where a person is affected by a relationship breakdown in such a way that they are or will be unable to undertake full-time study at that particular time.
Schedule 1 – Repeals
Item 1
Item 1 repeals the whole of the Social Security (Special Circumstances - Family) Specification 2016. The Instrument remakes this sunsetting instrument in relation to only youth allowance (student) in similar terms, with beneficial changes.
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 (Youth Allowance) (Special Circumstances – Family) Instrument 2026
The Social Security (Youth Allowance) (Special Circumstances – Family) Instrument 2026 (the Instrument) 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
The Instrument sets out matters that the Secretary (or a delegate) must take into account when determining if there are special circumstances relating to a person's family under section 542F of the Social Security Act 1991 (the Act). The effect of making such a determination is that the person is exempt, in respect of a period, from having to undertake the general requirement of undertaking full-time study for youth allowance (student) purposes in section 540 of the Act.
The matters in the Instrument are not exhaustive, as subsection 542F(2B) specifically states that the Secretary may take into account other matters in making a special family circumstances exemption determination.
In summary, the Instrument provides that when considering whether a special family circumstance exemption might apply, the Secretary must take into account the following matters:
- the caring responsibilities of a person who has one or more children who have not commenced school; and
- where the following matters prevent, or are likely to prevent, the person from being able to undertake full-time study:
- any significant caring responsibilities of the person that requires the person to temporarily care for an incapacitated family member (unless the Secretary is satisfied that those responsibilities could have been avoided with appropriate planning); and
- the emotional or physical well-being of a person who has ceased to be a member of a couple.
The Instrument also provides that the Secretary must take into account the impact of domestic violence on a person where the violence affects or is likely to affect the person’s capacity to meet undertaking full-time study requirements.
Human rights implications
The Determination engages the right to social security and the right to education.
Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right to social security and requires a social security scheme to be established under domestic law that provides a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.
Article 13 of the ICESCR recognises the right of everyone to education. Article 13 recognises the important personal, societal, economic and intellectual benefits of education. Article 13 also provides that secondary education in all its different forms, including higher education, shall be made generally available and accessible to all by every appropriate means.
The Instrument itself does not affect the payment of youth allowance to individuals. Rather, the Instrument sets out the matters that the Secretary must take into account when deciding whether a determination should be made that leads to the person being exempt from undertaking full-time study for youth allowance purposes.
The Instrument is beneficial in nature because if the requirements that the Secretary must take into account were not included in it, a person could potentially be required to meet certain study requirements (in respect of a period) for youth allowance purposes, when faced with difficult personal circumstances that could adversely affect their family. By requiring the Secretary to take into account the matters listed in it, the Instrument helps ensure that adverse impacts will not occur and that the person will continue to receive income support (in this case, youth allowance) for up to 16 weeks at a time.
The Instrument does not impose any requirements or obligations on a person and does not impact on the payment of a person’s income support where one of the matters set out in the Instrument exists. The Instrument recognises the importance of considering the individual circumstances of a person and whether, because of those circumstances, they would be able to meet study requirements for youth allowance purposes.
The Instrument does not negatively affect or limit a person’s right to social security or their right to education.
Conclusion
The Instrument is compatible with human rights as it supports the right to social security and the right to education.
Dani Chatillon
Branch Manager of the Carer, Disability and Student Payments Branch,
Delegate of the Secretary of the Department of Social Services