[pic] Social Security Act 1991 Act No. 46 of 1991 as amended This compilation was prepared on 17 July 2008 taking into account amendments up to Act No. 73 of 2008 Volume 1 includes: Table of Contents Sections 1 - 660M The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section This Act contains provisions affected by adjustments to the CPI For CPI adjusted provisions, see Appendix Volume 2 includes: Table of Contents Sections 660XAA - 1067L-F9 Volume 3 includes: Table of Contents Sections 1068 - 1361A Schedules 1A and 1B Volume 4 includes: Note 1 Table of Acts Act Notes Table of Amendments Volume 5 includes: Repeal Table Notes 2 - 9 Table A Appendix Prepared by the Office of Legislative Drafting and Publishing, Attorney-General's Department, Canberra Contents Chapter 1-Introductory 1 Part 1.1-Formal matters 1 1 Short title [see Note 1] 1 2 Commencement 1 3 Application of the Criminal Code 1 Part 1.2-Definitions 2 3A Power of Secretary to make determinations etc. 2 4 Family relationships definitions-couples 2 5 Family relationships definitions-children [see Appendix for CPI adjusted figures] 9 5A Single person sharing accommodation 18 5B Registered and active foster carers 20 5C Home educators 21 5D Distance educators 21 5E Relatives (other than parents) 21 6 Double orphan pension definitions 22 6A Concession card definitions 22 7 Australian residence definitions 23 8 Income test definitions 30 9 Financial assets and income streams definitions [see Note 7] 45 9A Meaning of asset-test exempt income stream-lifetime income streams 54 9B Meaning of asset-test exempt income stream-life expectancy income streams 61 9BA Meaning of asset-test exempt income stream-market-linked income streams 68 9C Family law affected income streams 74 9D Asset-tested status of secondary FLA income streams 74 10 Maintenance income definitions 75 10A Definitions for Seniors Health Card provisions 75 10B Family actual means test definitions 86 11 Assets test definitions 91 11A Principal home definition for the purpose of the assets test 96 12 Retirement villages definitions 101 12A Granny flat definitions 103 12B Sale leaseback definitions 104 12C Special residence and residents definitions 106 13 Rent definitions 107 14 Remote area definitions 112 14A Social security benefit liquid assets test definitions 113 15 NS activity test definitions 116 16 Industrial action definitions 117 16A Seasonal work definitions 118 16B Partial capacity to work 127 16C Meaning of applicable statutory conditions 129 17 Compensation recovery definitions 130 17A Retirement assistance for farmers definitions 137 17B Retirement assistance for sugarcane farmers definitions 141 18 Parenting payment definitions 146 19 Mobility allowance definitions 146 19A Fares allowance definitions 146 19AA Fares allowance definitions 148 19AB Student Financial Supplement Scheme definitions 150 19B Financial hardship (Carer payment) liquid assets test definition 154 19C Severe financial hardship definitions 155 19D Severe financial hardship-crisis payment definition 160 19E Exempt funeral investments 162 20 Indexation and rate adjustment definitions 163 21 Bereavement definitions 164 22 Review of decisions definitions 165 23 General definitions 165 Part 1.3-Determinations having interpretative effect 194 24 Person may be treated as not being a member of a couple (subsection 4(2)) 194 24A Approved scholarship 194 25 Refugee visas 195 28 Approved programs of work for income support payment 195 28A Approval of programs of assistance 196 29 Approval of friendly societies 196 30 Approval of mental hospitals 196 31 Approval of follow-up rehabilitation programs 197 32 Approval of sheltered employment-non-profit organisation 197 33 Approval of sheltered employment-supported employment 197 35 Approval of care organisation 198 35A Personal Care Support 198 36 Major disaster 198 37 Dependent child-inmate of a mental hospital 199 38B Notional continuous period of receipt of income support payments 200 38C Adult Disability Assessment Tool 202 38D Child Disability Assessment Tool 202 Part 1.4-Miscellaneous 204 39 Tables, calculators etc. form part of section 204 Chapter 2-Pensions, benefits and allowances 206 Part 2.2-Age pension 206 Division 1-Qualification for and payability of age pension 206 Subdivision A-Qualification 206 43 Qualification for age pension 206 Subdivision B-Payability 207 44 Age pension not payable if pension rate nil 207 47 Multiple entitlement exclusion 207 47A Exclusion of certain participants in ABSTUDY Scheme 209 Division 4-Rate of age pension 210 55 How to work out a person's age pension rate 210 Division 9-Bereavement payments 211 Subdivision A-Death of partner 211 82 Qualification for payments under this Subdivision 211 83 Continued payment of deceased partner's previous entitlement 213 84 Lump sum payable in some circumstances 213 85 Adjustment of person's age pension rate 215 86 Effect of death of person entitled to payments under this Subdivision 215 87 Matters affecting payment of benefits under this Subdivision 217 Subdivision C-Death of recipient 218 91 Death of recipient 218 Part 2.2A-Pension bonus 220 Division 1-Introduction 220 92A Simplified outline 220 92B Definitions 220 Division 2-Qualification for pension bonus 222 92C Qualification for pension bonus 222 Division 3-Registration as a member of the pension bonus scheme 224 Subdivision A-Membership of the pension bonus scheme 224 92D Application for registration 224 92E Form of application 224 92F Relevant information 224 92G Lodgment of application 225 92H Timing of application and registration 225 92J Registration 227 92K Duration of membership 227 92L Cancellation of membership 228 92M Application for registration is not to be treated as a claim 228 Subdivision B-Classification of membership of the pension bonus scheme 228 92N Accruing membership 228 92P Non-accruing membership-preclusion periods 229 92Q Non-accruing membership-Secretary's discretion 229 92R Continuity of accruing membership is not broken by a period of non-accruing membership 230 92S Post-75 membership 230 Division 4-Accrual of bonus periods 231 92T Accrual of bonus periods 231 Division 5-Passing the work test 233 Subdivision A-The work test 233 92U Work test-full-year period 233 92V Work test-part-year period 234 92W Secretary's discretion to treat gainful work outside Australia as gainful work in Australia 235 Subdivision B-Gainful work 235 92X Gainful work-basic rule 235 92Y Secretary's discretion to treat activity as gainful work 236 92Z Irregular, infrequent and minor absences from a workplace count as gainful work 236 93 Management of family financial investments does not count as gainful work 236 93A Domestic duties in relation to a person's place of residence do not count as gainful work 237 93B Evidentiary certificate 238 Subdivision C-Record-keeping requirements 240 93C Record-keeping requirements 240 Division 6-Amount of pension bonus 243 93D How to calculate the amount of pension bonus 243 93E Qualifying bonus periods 243 93F Overall qualifying period 244 93G Pension multiple 244 93H Annual pension rate 244 93J Amount of pension bonus 245 93K Top up of pension bonus for increased rate of age pension 247 93L Top up of pension bonus in specified circumstances 248 Division 11-Preclusion periods 250 93U Disposal preclusion period-disposals before 1 July 2002 250 93UA Disposal preclusion period-disposals on or after 1 July 2002 251 93V Compensation preclusion period 251 93W Carer preclusion period 251 Division 12-Pension bonus bereavement payment 252 93WA Qualification for pension bonus bereavement payment 252 93WB Amount of pension bonus bereavement payment 252 93WC Definition of PBBP employment income 252 Part 2.2B-One-off payments to the aged and older Australians 254 Division 1-One-off payment to the aged 254 93X One-off payment to the aged 254 Division 2-2006 one-off payment to older Australians 255 93Y 2006 one-off payment to older Australians 255 93Z Amount of the one-off payment 256 Division 3-2007 one-off payment to older Australians 258 93ZA 2007 one-off payment to older Australians 258 93ZB Amount of the one-off payment 259 Division 4-2008 one-off payment to older Australians 260 93ZC 2008 one-off payment to older Australians 260 93ZD Amount of the one-off payment 261 Part 2.3-Disability support pension 262 Division 1-Qualification for and payability of disability support pension 262 Subdivision A-Qualification 262 94 Qualification for disability support pension 262 94A Qualification for disability support pension-person transferring to that pension 265 95 Qualification for disability support pension-permanent blindness 268 Subdivision B-Payability 269 98 Disability support pension not payable if pension rate nil 269 103 Multiple entitlement exclusion 269 103A Exclusion of certain participants in ABSTUDY Scheme 271 104 Seasonal workers-preclusion period 272 Division 5-Rate of disability support pension 274 117 How to work out a person's disability support pension rate 274 118 Approved program of work supplement 274 119 Approved program of work supplement not payable in certain circumstances 274 120 Effect of participation in an approved program of work for income support payment 275 Division 10-Bereavement payments 276 Subdivision A-Death of partner 276 146F Qualification for payments under this Subdivision 276 146G Continued payment of deceased partner's previous entitlement 278 146H Lump sum payable in some circumstances 278 146J Adjustment of person's disability support pension rate 280 146K Effect of death of person entitled to payments under this Subdivision 280 146L Matters affecting payment of benefits under this Subdivision 282 Subdivision C-Death of recipient 283 146Q Death of recipient 283 Part 2.4-Wife pension 284 Division 1A-Time limit on grant of wife pension 284 146V Wife pension not to be granted after 30 June 1995 284 Division 1-Qualification for and payability of wife pension 285 Subdivision A-Qualification 285 147 Qualification for wife pension 285 Subdivision B-Payability 285 148 Wife pension not payable if pension rate nil 285 151 Multiple entitlement exclusion 285 151A Exclusion of certain participants in ABSTUDY Scheme 287 Division 4-Rate of wife pension 289 159 How to work out the rate of wife pension 289 Division 9-Bereavement payments 290 Subdivision A-Continuation of wife pension where partner dies 290 186 Continuation of wife pension for bereavement period 290 187 Continued wife pension rate 290 Subdivision B-Death of pensioner partner 291 188 Qualification for payments under this Subdivision 291 189 Continued payment of partner's pension or allowance 291 190 Lump sum payable in some circumstances 292 191 Effect of death of person entitled to payments under this Subdivision 293 192 Matters affecting payment of benefits under this Subdivision 295 Part 2.5-Carer payment 296 Division 1A-Interpretation 296 197 Definitions 296 Division 1-Qualification for and payability of carer payment 299 Subdivision A-Qualification 299 198 Qualification for carer payment 299 198AAA Continuation of qualification when person receiving care admitted to institution 302 198AA Qualification for carer payment-hospitalisation 302 198AB Care not required to be in private residence during portability period 303 198AC Effect of cessation of care etc. on carer payment 303 198A Income test [see Appendix for CPI adjusted figures] 305 198B Taxable income 305 198C Appropriate tax year 307 198D Assets test [see Appendix for CPI adjusted figures] 310 198E Working out the value of assets 312 198F Disposal of assets-care receiver assets test 312 198G Amount of disposition-care receiver assets test 313 198H Disposal of assets in pre-pension years-individual higher ADAT score adults 314 198HA Disposal of assets in pre-pension years-profoundly disabled child or disabled children 315 198HB Disposal of assets in pre-pension years-lower ADAT score adult and dependent child 316 198J Disposal of assets before 1 July 2002-individual higher ADAT score adults 317 198JA Disposal of assets before 1 July 2002-profoundly disabled children or disabled children 318 198JB Disposal of assets before 1 July 2002-lower ADAT score adult and dependent child 319 198JC Disposal of assets in income year-individual higher ADAT score adults 321 198JD Disposal of assets in 5 year period-individual higher ADAT score adults 322 198JE Disposal of assets in income year-profoundly disabled children 323 198JF Disposal of assets in 5 year period-profoundly disabled children 324 198JG Disposal of assets in income year-lower ADAT score adult and dependent child 325 198JH Disposal of assets in 5 year period-lower ADAT score adult and dependent child 326 198K Disposal of assets in pre-pension years-members of couples including higher ADAT score adults 328 198L Disposal of assets before 1 July 2002-members of couples including higher ADAT score adults 330 198LA Disposal of assets in income year-members of couples including higher ADAT score adults 331 198LB Disposal of assets in 5 year period-members of couples including higher ADAT score adults 333 198M Certain dispositions to be disregarded for care receiver assets test 335 198MA Other dispositions to be disregarded for care receiver assets test 335 198N Exemption from care receiver assets test [see Appendix for CPI adjusted figures] 336 198P Date of effect of favourable decision under section 198N 341 198Q Date of effect of adverse decision under section 198N 343 Subdivision B-Payability 343 199 Carer payment not payable if payment rate nil 343 201AA Newly arrived resident's waiting period 344 201AB Duration of newly arrived resident's waiting period 345 202 Multiple entitlement exclusion 345 202A Exclusion of certain participants in ABSTUDY Scheme 347 203 Seasonal workers-preclusion period 348 Division 4-Rate of carer payment 349 210 How to work out a person's carer payment rate 349 Division 9-Bereavement payments 350 Subdivision A-Continuation of carer payment 350 235 Continuation of carer payment for bereavement period where person cared for dies 350 236 Continued carer payment rate 351 236A Lump sum payable in some circumstances 351 236B Subdivision not to apply in certain cases involving simultaneous death 352 Subdivision B-Death of partner 352 237 Qualification for payments under this Subdivision 352 238 Continued payment of deceased partner's previous entitlement 354 239 Lump sum payable in some circumstances 355 240 Adjustment of person's carer payment rate 357 241 Effect of death of person entitled to payments under this Subdivision 357 242 Benefits under this Subdivision 359 243 Subdivision not to apply in certain cases involving simultaneous death 360 Subdivision D-Death of recipient 360 246 Death of recipient 360 Part 2.5A-One-off payments to carers eligible for carer payment 362 Division 1-One-off payment to carers eligible for carer payment 362 247 One-off payment to carers (carer payment related) 362 248 What is the amount of the payment? 362 Division 2-2005 one-off payment to carers eligible for carer payment 363 249 2005 one-off payment to carers (carer payment related) 363 250 What is the amount of the payment? 363 Division 3-2005 one-off payment to carers eligible for carer service pension 364 251 2005 one-off payment to carers (carer service pension related) 364 252 What is the amount of the payment? 364 Division 4-2006 one-off payment to carers eligible for carer payment 365 253 2006 one-off payment to carers (carer payment related) 365 254 Amount of the one-off payment 365 Division 5-2006 one-off payment to carers eligible for wife pension 366 255 2006 one-off payment to carers (wife pension related) 366 256 Amount of the one-off payment 366 Division 6-2006 one-off payment to carers eligible for partner service pension 367 257 2006 one-off payment to carers (partner service pension related) 367 258 Amount of the one-off payment 367 Division 7-2006 one-off payment to carers eligible for carer service pension 368 259 2006 one-off payment to carers (carer service pension related) 368 260 Amount of the one-off payment 368 Division 8-2007 one-off payment to carers eligible for carer payment 369 261 2007 one-off payment to carers (carer payment related) 369 262 Amount of the one-off payment 369 Division 9-2007 one-off payment to carers eligible for wife pension 370 263 2007 one-off payment to carers (wife pension related) 370 264 Amount of the one-off payment 370 Division 10-2007 one-off payment to carers eligible for partner service pension 371 265 2007 one-off payment to carers (partner service pension related) 371 266 Amount of the one-off payment 371 Division 11-2007 one-off payment to carers eligible for carer service pension 372 267 2007 one-off payment to carers (carer service pension related) 372 268 Amount of the one-off payment 372 Division 12-2008 one-off payment to carers eligible for carer payment 373 269 2008 one-off payment to carers (carer payment related) 373 270 Amount of the one-off payment 373 Division 13-2008 one-off payment to carers eligible for wife pension 374 271 2008 one-off payment to carers (wife pension related) 374 272 Amount of the one-off payment 374 Division 14-2008 one-off payment to carers eligible for partner service pension 375 273 2008 one-off payment to carers (partner service pension related) 375 274 Amount of the one-off payment 375 Division 15-2008 one-off payment to carers eligible for carer service pension 376 275 2008 one-off payment to carers (carer service pension related) 376 276 Amount of the one-off payment 376 Part 2.7-Bereavement allowance 377 Division 1-Qualification for and payability of bereavement allowance 377 Subdivision A-Qualification 377 315 Qualification for bereavement allowance 377 Subdivision B-Payability 378 316 Bereavement allowance not payable if allowance rate nil 378 321 Multiple entitlement exclusion 378 321A Exclusion of certain participants in ABSTUDY Scheme 379 Division 4-Rate of bereavement allowance 381 329 How to work out a person's bereavement allowance rate 381 Division 9-Bereavement payments 382 Subdivision B-Death of recipient 382 359 Death of recipient 382 Part 2.8-Widow B pension 383 Division 1-Qualification for and payability of widow B pension 383 Subdivision A-Qualification 383 362A Widow B pension not to be granted in certain cases 383 362 Qualification for widow B pension 383 Subdivision B-Payability 386 364 Widow B pension not payable if pension rate nil 386 368 Multiple entitlement exclusion 386 368A Exclusion of certain participants in ABSTUDY Scheme 387 Division 4-Rate of widow B pension 388 376 How to work out the rate of widow B pension 388 Division 9-Bereavement payments 389 Subdivision B-Death of recipient 389 407 Death of recipient 389 Part 2.8A-Widow allowance 390 Division 1-Time limit on grants of widow allowance 390 408AA Time limit on grants 390 Division 2-Qualification for and payability of widow allowance 391 Subdivision A-Qualification 391 408BA Qualification for widow allowance 391 408BB Assurance of support 392 Subdivision B-Payability 392 408CA Widow allowance not payable if allowance rate nil 392 408CE Assets test-allowance not payable if assets value limit exceeded [see Appendix for CPI adjusted figures] 393 408CF Multiple entitlement exclusion 393 408CG Maximum basic rate and remote area allowance not payable to CDEP Scheme participant 395 408CH Seasonal workers 395 Division 5-Rate of widow allowance 397 408FA How to work out a woman's widow allowance rate 397 408GI CDEP Scheme participant may accumulate widow allowance 397 Part 2.10-Parenting payment 398 Division 1-Qualification for and payability of parenting payment 398 Subdivision A-Qualification 398 500 Qualification for parenting payment 398 500A Participation requirements 399 500B Qualification affecting member of couple-assurance of support 399 500C Qualification affecting member of couple-unemployment due to industrial action 399 500D PP child 400 500E Prospective determinations for some recipients 401 Subdivision AA-Parenting payment transitional arrangement 402 500F When a person is covered by the parenting payment transitional arrangement 402 500G When determinations are taken to be in force 404 500H The effect of cancellation 405 Subdivision B-General principles relating to payability 405 500I Parenting payment not payable if payment rate nil 405 500J Situations where payment not payable for failure to comply with certain requirements 405 500Q Assets test-payment not payable if assets value limit exceeded [see Appendix for CPI adjusted figures] 406 500S Multiple entitlement exclusion 408 500V Educational schemes exclusion-person member of a couple 409 500VA Exclusion of certain participants in ABSTUDY Scheme 409 500W Maximum basic rate and remote area allowance not payable to CDEP Scheme participant who is a member of a couple 410 500Z Seasonal workers-preclusion period 410 Subdivision C-Situations where payment not payable because of parenting payment participation failure 411 500ZA Parenting payment participation failures 411 500ZB Payment not payable because of parenting payment participation failure 413 500ZC When the period of non-payment starts 414 500ZD When the period of non-payment ends 414 Subdivision CA-Situations where payment not payable because of repeated or more serious failure 415 500ZE Payment not payable because of repeated or more serious failure 415 500ZF When the period of non-payment starts 416 Division 2-Parenting Payment Activity Agreements 418 501 Parenting Payment Activity Agreements 418 501A Parenting Payment Activity Agreement-terms 418 501B Parenting Payment Activity Agreements-requirement to look for work of appropriate number of hours per week 420 501C Parenting Payment Activity Agreements-people with partial capacity to work 420 501D Parenting Payment Activity Agreements-requirement to participate in an approved program of work 421 501E Parenting Payment Activity Agreements-suspension of agreements in cases of domestic violence etc. 422 Division 3-Additional participation requirements 424 502 Secretary may impose additional participation requirements 424 502A People 55 and over who are engaged in work 427 502B Persons engaged in suitable paid work for at least 30 hours per fortnight 428 Division 3A-Participation exemptions 429 502C Domestic violence etc. 429 502D People with disabled children and other circumstances 430 502E Training camps 432 502F Special circumstances 432 502G Pre-natal and post-natal relief 433 502H Temporary incapacity 433 502J Time limit for temporary incapacity exemption-Secretary satisfied person can undertake activity 434 502K Time limit for temporary incapacity exemption-end of person's maximum exemption period 434 Division 4-Rate of parenting payment 438 Subdivision A-Rate of parenting payment 438 503 How to work out a person's parenting payment rate 438 503A Approved program of work supplement 438 503AA Approved program of work supplement not payable in certain circumstances 438 Subdivision C-Accumulation of parenting payments by CDEP Scheme participants 439 504N CDEP Scheme participant may accumulate parenting payment 439 Division 9-Bereavement payments 440 Subdivision A-Continuation of parenting payment after death of child 440 512 Death of PP child-continuation of qualification for 14 weeks 440 Subdivision B-Death of recipient 440 513 Death of recipient-recipient not member of a couple 440 513A Death of recipient-recipient member of a couple 441 Subdivision C-Death of partner 441 514 Surviving partner and deceased partner 441 514A Qualification for payments under this Subdivision 441 514B Continued payment of deceased partner's previous entitlement 442 514C Lump sum payable in some circumstances 443 514D Adjustment of person's parenting payment rate 444 514E Effect of death of surviving partner 445 514F Matters affecting payments under this Subdivision 447 Subdivision D-Bereavement payment in respect of a person who was a CDEP Scheme participant 448 514FA Calculation of bereavement payment in respect of former CDEP Scheme participant 448 Part 2.11-Youth allowance 449 Division 1-Qualification for youth allowance 449 Subdivision A-Basic qualifications 449 540 Qualification for youth allowance-general rule 449 540A Qualification for youth allowance-claimants for disability support pension 449 540AA Qualification for youth allowance-new apprentices 451 540AB Qualification for youth allowance-claimants with medical conditions affecting their capacity to work 451 540B Qualification for youth allowance-transferee from social security pension 453 540C Qualification for youth allowance may continue to end of payment period 453 Subdivision B-Activity test 454 541 Activity test 454 541A Failure to satisfy the activity test 456 541B Undertaking full-time study 457 541D Unsuitable paid work 459 Subdivision C-Exemptions from the activity test 462 542 Situations in which a person is not required to satisfy the activity test 462 542A Temporary incapacity exemption 463 542B Failure to attend interview etc. may result in cessation of temporary incapacity exemption 464 542BA Time limit for temporary incapacity exemptions-capacity to undertake activity 465 542C Time limit for temporary incapacity exemptions-maximum exemption period 466 542D Pre-natal and post-natal exemptions 469 542E Remote area exemption 469 542F Domestic violence or other special family circumstances exemption 470 542FA Disabled children or other family circumstances exemption 472 542FB New claimants exemption 473 542G Training camp exemption 475 542H Special circumstances exemption 475 Subdivision D-Youth allowance age 476 543 Youth allowance age 476 543A Minimum age for youth allowance [see Note 6] 476 543B Maximum age for youth allowance 479 Subdivision E-Youth Allowance Activity Agreements 480 544 Requirements relating to Youth Allowance Activity Agreements 480 544A Youth Allowance Activity Agreements-requirement 481 544B Youth Allowance Activity Agreements-terms 482 544C Youth Allowance Activity Agreements-principal carers 485 544D Youth Allowance Activity Agreements-people with partial capacity to work 485 544E Youth Allowance Activity Agreements-suspension of agreements for people with certain exemptions 486 Subdivision G-Miscellaneous 486 546 Prospective determinations for some allowance recipients 486 Division 2-Situations in which youth allowance is not payable 488 Subdivision A-Situations in which allowance not payable (general) 488 547 Youth allowance not payable if allowance rate nil 488 547AA Youth allowance not payable if person fails to attend interview etc. in certain circumstances 488 547AB Situations where allowance not payable for failure to comply with certain requirements 489 Subdivision AB-Assets test 490 547A Allowance not payable if assets value limit exceeded 490 547B Who is excluded from application of assets test? 490 547C Assets value limit [see Appendix for CPI adjusted figures] 490 547D Value of person's assets to include value of assets of partner or family members in certain circumstances 491 547E Assets of trust in which person benefits 491 547F Exclusion of certain assets that are exempt under the Farm Household Support Act 1992 492 547G How business assets are treated 492 Subdivision C-Waiting periods 493 549 Waiting periods 493 549A Liquid assets test waiting period 494 549B Start of liquid assets test waiting period 495 549C Length of liquid assets test waiting period 495 549D Newly arrived resident's waiting period 496 549E Length of newly arrived resident's waiting period [see Note 4] 498 549F Effect of being subject to 2 waiting periods 498 Subdivision D-Situations where allowance not payable because of youth allowance participation failure 499 550 Youth allowance participation failures 499 550A Requiring a person to apply for job vacancies 501 550B Allowance not payable because of youth allowance participation failure 502 550C When the period of non-payment starts 504 550D When the period of non-payment ends 504 Subdivision E-Situations where allowance not payable because of repeated or more serious failure 504 551 Allowance not payable because of repeated or more serious failure 504 551A When the period of non-payment starts 506 Subdivision F-Multiple entitlement exclusions 507 552 Multiple entitlement exclusions 507 552A Person receiving payment under certain schemes 507 552B Assurance of support 508 552C Maximum basic rate and remote area allowance not payable to CDEP Scheme participant 509 Subdivision G-Employment-related exclusions 509 553 Employment-related exclusions 509 553A Unemployment due to industrial action 509 553B Move to area of lower employment prospects 510 553C Seasonal workers 512 Division 5-Rate of youth allowance 514 556 How to work out a person's youth allowance rate 514 556A Approved program of work supplement 514 559J CDEP Scheme participant may accumulate youth allowance 514 Subdivision EA-sections 565F, 565G [see Note 6] 515 Division 10-Bereavement payments 516 Subdivision A-Bereavement payments on death of partner 516 567 Qualification for payments under this Division 516 567A Continued payment of partner's pension or benefit 517 567B Lump sum payable in some circumstances 517 567C Adjustment of person's youth allowance rate 519 567D Effect of death of person entitled to payments under this Division 519 567E Matters affecting payments under this Division 521 567F Calculation of bereavement payment in respect of former CDEP Scheme participant 522 Subdivision B-Continuation of youth allowance rate after death of child 522 567G Death of child-continuation of youth allowance rate for 14 weeks 522 Part 2.11A-Austudy payment 523 Division 1-Qualification for austudy payment 523 Subdivision A-Basic qualifications 523 568 Qualification for austudy payment-general rule 523 568AA Qualification for austudy payment-new apprentices 523 568A Qualification for austudy payment-transferee from social security pension 523 Subdivision B-Activity test 524 569 Activity test 524 569A Undertaking qualifying study 524 569B Approved course of education or study 525 569C Full-time students 525 569D Concessional study-load students 525 569E Normal amount of full-time study 527 569F First fortnight of classes 528 569G Progress rules-secondary students 528 569H Progress rules-tertiary students 529 Subdivision C-Austudy age 535 570 Austudy age 535 Division 2-Situations in which austudy payment is not payable 536 Subdivision A-Situation in which austudy payment not payable (general) 536 572 Austudy payment not payable if payment rate nil 536 572A Situations where austudy payment not payable for failure to comply with certain requirements 536 Subdivision B-Assets test 536 573 Austudy payment not payable if assets value limit exceeded 536 573A Who is excluded from application of assets test 537 573B Assets value limit [see Appendix for CPI adjusted figures] 538 573C Value of person's assets to include value of assets of partner 538 573D Assets of trust in which person benefits 539 573E Exclusion of certain assets that are exempt under the Farm Household Support Act 1992 539 Subdivision D-Waiting periods 540 575 Waiting periods 540 575A Liquid assets test waiting period 540 575B Start of liquid assets test waiting period 541 575C Length of liquid assets test waiting period 541 575D Newly arrived resident's waiting period 542 575E Length of newly arrived resident's waiting period 543 575EA Seasonal workers-preclusion period 544 575F Effect of being subject to 2 waiting periods 545 Subdivision E-Situations where austudy payment not payable because of austudy participation failure 545 576 Austudy participation failures 545 576A Allowance not payable because of austudy participation failure 546 576B When the period of non-payment starts 547 576C When the period of non-payment ends 548 Subdivision F-Situations where payment not payable because of repeated failure 548 577 Payment not payable because of repeated failure 548 577A When the period of non-payment starts 549 Subdivision G-Multiple entitlement exclusions 549 578 Multiple entitlement exclusions 549 578A Person receiving payment under certain schemes 550 578B Assurance of support 551 Division 5-Rate of austudy payment 552 581 How to work out a person's austudy payment rate 552 Division 10-Bereavement payments on death of partner 553 592 Qualification for payments under this Division 553 592A Continued payment of partner's pension or benefit 554 592B Lump sum payable in some circumstances 554 592C Adjustment of person's austudy payment rate 556 592D Effect of death of person entitled to payments under this Division 556 592E Matters affecting payments under this Division 558 Part 2.12-Newstart allowance 559 Division 1-Qualification for and payability of newstart allowance 559 Subdivision A-Basic qualifications 559 593 Qualification for newstart allowance 559 595 Persons may be treated as unemployed 563 596 Unemployment due to industrial action 564 596A Assurance of support 565 598 Liquid assets test waiting period 565 600 Prospective determinations for some allowance recipients 569 Subdivision B-Activity test 570 601 Activity test 570 602A Relief from activity test-persons to whom subsection 614(6) applies 574 602B Relief from activity test-domestic violence etc. 574 602C Relief from activity test-people with disabled children and other circumstances 575 603 Relief from activity test-general 577 603A Relief from activity test-special circumstances 578 603AAA Pre-natal and post-natal relief from activity test 579 603AA Relief from activity test-people 55 and over who are engaged in work 579 603AB Relief from activity test-certain principal carers and people with partial capacity to work 580 Subdivision BA-Exemption from activity test-people temporarily incapacitated for work 580 603BA Subdivision not to apply to a person with a pending claim for disability support pension 580 603B Interpretation 581 603C Incapacitated person not required to satisfy activity test 581 603D Time limit for exemption-Secretary satisfied person can undertake activity 582 603F Time limit for exemption-end of person's maximum exemption period 582 Subdivision C-Newstart Activity Agreements 585 605 Newstart Activity Agreements-requirement 585 606 Newstart Activity Agreements-terms 587 607 Newstart Activity Agreements-principal carers 588 607A Newstart Activity Agreements-people with partial capacity to work 588 607B Newstart Activity Agreements-requirement to participate in an approved program of work 589 607C Newstart Activity Agreements-suspension of agreements in cases of domestic violence etc. 590 Subdivision D-Situations where allowance not payable (general) 590 608 Newstart allowance not payable if allowance rate nil 590 611 Assets test-allowance not payable if assets value limit exceeded [see Appendix for CPI adjusted figures] 591 612 Value of assets of members of couples 592 613 Full-time students 593 614 Multiple entitlement exclusion 593 614A Maximum basic rate and remote area allowance not payable to CDEP Scheme participant 595 615 Newstart allowance not payable if person fails to attend interview etc. in certain circumstances 596 Subdivision E-Situations where allowance not payable (waiting periods) 597 620 Ordinary waiting period 597 621 Duration of ordinary waiting period 598 623A Newly arrived resident's waiting period 599 623B Duration of newly arrived resident's waiting period 600 Subdivision F-Situations where allowance not payable because of newstart participation failure 601 624 Newstart participation failures 601 625 Requiring a person to apply for job vacancies 603 626 Allowance not payable because of newstart participation failure 604 627 When the period of non-payment starts 605 628 When the period of non-payment ends 605 Subdivision FA-Situations where allowance not payable because of repeated or more serious failure 606 629 Allowance not payable because of repeated or more serious failure 606 630 When the period of non-payment starts 607 Subdivision G-Situations where allowance not payable (administrative breaches) 608 631 Situations where allowance not payable for failure to comply with certain requirements 608 Subdivision GA-Participation in an approved program of work for income support payment 608 631C Participation in an approved program of work for income support payment does not give rise to employment under certain industrial relations legislation 608 Subdivision H-Other situations where allowance not payable 608 633 Seasonal workers 608 634 Move to area of lower employment prospects 610 Division 4-Rate of newstart allowance 612 643 How to work out a person's newstart allowance rate 612 644AAA Approved program of work supplement 612 653A CDEP Scheme participant may accumulate newstart allowance 612 Division 9-Bereavement payments 614 Subdivision AA-Death of partner 614 660LA Qualification for payments under this Subdivision 614 660LB Continued payment of partner's pension or benefit 615 660LC Lump sum payable in some circumstances 615 660LD Adjustment of a person's newstart allowance rate 617 660LE Effect of death of person entitled to payments under this Subdivision 617 660LF Matters affecting payments under this Subdivision 619 660LG Calculation of bereavement payment in respect of former CDEP Scheme participant 619 Subdivision B-Continuation of newstart allowance rate after death of child 620 660M Death of child-continuation of newstart allowance rate for 14 weeks 620 An Act to provide for the payment of certain pensions, benefits and allowances, and for related purposes Chapter 1-Introductory Part 1.1-Formal matters 1 Short title [see Note 1] This Act may be cited as the Social Security Act 1991. 2 Commencement This Act commences on 1 July 1991. 3 Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Part 1.2-Definitions 3A Power of Secretary to make determinations etc. If: (a) a provision of this Act refers to a determination made, approval given or other act done by the Secretary; and (b) there is no other provision of this Act expressly conferring power on the Secretary to make the determination, give the approval or do the act; the Secretary has power by this section to make such a determination, give such an approval or do such an act, as the case requires. 4 Family relationships definitions-couples (1) In this Act, unless the contrary intention appears: approved respite care has the meaning given by subsection (9). armed services widow means a woman who was the partner of: (a) a person who was a veteran for the purposes of any provisions of the Veterans' Entitlements Act; or (b) a person who was a member of the forces for the purposes of Part IV of that Act; or (c) a person who was a member of a peacekeeping force for the purposes of Part IV of that Act; or (d) a person who was a member within the meaning of the Military Rehabilitation and Compensation Act for the purposes of that Act; immediately before the death of the person. armed services widower means a man who was the partner of: (a) a person who was a veteran for the purposes of any provisions of the Veterans' Entitlements Act; or (b) a person who was a member of the Forces for the purposes of Part IV of that Act; or (c) a person who was a member of a Peacekeeping Force for the purposes of Part IV of that Act; or (d) a person who was a member within the meaning of the Military Rehabilitation and Compensation Act for the purposes of that Act; immediately before the death of the person. illness separated couple has the meaning given by subsection (7). member of a couple has the meaning given by subsections (2), (3), (3A), (6) and (6A). partner, in relation to a person who is a member of a couple, means the other member of the couple. partnered has the meaning given by subsection (11). partnered (partner getting benefit) has the meaning given by subsection (11). partnered (partner getting neither pension nor benefit) has the meaning given by subsection (11). partnered (partner getting pension) has the meaning given by subsection (11). partnered (partner getting pension or benefit) has the meaning given by subsection (11). partnered (partner in gaol) has the meaning given by subsection (11). respite care couple has the meaning given by subsection (8). Member of a couple-general (2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if: (a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or (b) all of the following conditions are met: (i) the person has a relationship with a person of the opposite sex (in this paragraph called the partner); (ii) the person is not legally married to the partner; (iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship; (iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live; (v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961. Note: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and: 1. an ancestor of the person; or 2. a descendant of the person; or 3. a brother or sister of the person (whether of the whole blood or the part-blood). Member of a couple-criteria for forming opinion about relationship (3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters: (a) the financial aspects of the relationship, including: (i) any joint ownership of real estate or other major assets and any joint liabilities; and (ii) any significant pooling of financial resources especially in relation to major financial commitments; and (iii) any legal obligations owed by one person in respect of the other person; and (iv) the basis of any sharing of day-to-day household expenses; (b) the nature of the household, including: (i) any joint responsibility for providing care or support of children; and (ii) the living arrangements of the people; and (iii) the basis on which responsibility for housework is distributed; (c) the social aspects of the relationship, including: (i) whether the people hold themselves out as married to each other; and (ii) the assessment of friends and regular associates of the people about the nature of their relationship; and (iii) the basis on which the people make plans for, or engage in, joint social activities; (d) any sexual relationship between the people; (e) the nature of the people's commitment to each other, including: (i) the length of the relationship; and (ii) the nature of any companionship and emotional support that the people provide to each other; and (iii) whether the people consider that the relationship is likely to continue indefinitely; and (iv) whether the people see their relationship as a marriage-like relationship. (3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis. Member of a couple-special excluding determination (6) A person is not a member of a couple if a determination under section 24 is in force in relation to the person. Note: section 24 allows the Secretary to treat a person who is a member of a couple as not being a member of a couple in special circumstances. (6A) A person who: (a) has claimed youth allowance and is not independent within the meaning of Part 3.5; or (b) is receiving a youth allowance and is not independent within the meaning of Part 3.5; or (c) is a member of a couple of which a person referred to in paragraph (b) is the other member; is not a member of a couple for the purposes of: (d) the provisions of this Act referred to in the table at the end of this subsection; and (e) any provision of this Act that applies for the purposes of a provision mentioned in paragraph (d); and (f) any provision of this Act that applies for the purposes of Module E (Ordinary income test) of the Pension PP (Single) Rate Calculator in section 1068A. Note: Paragraphs (e) and (f) have the effect of treating a person as not being a member of a couple in provisions that apply for the purposes of the income test, assets test, liquid assets test or compensation recovery provisions, including section 8 (Income test definitions), sections 11 and 11A (Assets test definitions), section 14A (Social security benefit liquid assets test provisions), section 17 (Compensation recovery definitions), section 19B (Financial hardship provisions liquid assets test definition), Part 2.26 (Fares allowance), Part 3.10 (General provisions relating to the ordinary income test) and Part 3.12 (General provisions relating to the assets test). |Affected provisions | |Item |Provisions of this Act |Subject matter | |1 |Subdivision AB of |Youth allowance assets | | |Division 2 of Part 2.11|test | |1A |section 500Q |Parenting payment assets | | | |test | |2 |sections 549A to 549C |Youth allowance liquid | | | |assets test | |3 |Subdivision B of |Austudy payment assets | | |Division 2 of |test | | |Part 2.11A | | |4 |sections 575A to 575C |Austudy payment liquid | | | |assets test | |5 |section 598 |Newstart allowance liquid| | | |assets test | |6 |sections 611 and 612 |Newstart allowance assets| | | |test | |7 |sections 660YCJ and |Mature age allowance | | |660YCK |assets test | |8 |section 676 |Sickness allowance liquid| | | |assets test | |9 |sections 680 and 681 |Sickness allowance assets| | | |test | |10 |sections 733 and 734 |Special benefit assets | | | |test | |11 |section 771HF |Partner allowance assets | | | |test | |11A |Part 2.26 |Fares allowance | |12 |Module E of Pension |Ordinary income test | | |Rate Calculator A | | |13 |Module G of Pension |Assets test | | |Rate Calculator A | | |14 |Module F of Pension |Ordinary income test | | |Rate Calculator D | | |15 |Module H of Pension |Assets test | | |Rate Calculator D | | |16 |Module H of Youth |Income test | | |Allowance Rate | | | |Calculator | | |17 |Module D of the Austudy|Income test | | |Payment Rate Calculator| | |18 |Module G of Benefit |Income test | | |Rate Calculator B | | |19 |Part 3.14 |Compensation recovery | Illness separated couple (7) Where 2 people are members of a couple, they are members of an illness separated couple if: (a) they are unable to live together in a matrimonial home as a result of the illness or infirmity of either or both of them; and (b) because of that inability to live together, their living expenses are, or are likely to be, greater than they would otherwise be; and (c) that inability is likely to continue indefinitely. Respite care couple (8) Where 2 people are members of a couple, they are members of a respite care couple if: (a) one of the members of the couple has entered approved respite care; and (b) the member who has entered the approved respite care has remained, or is likely to remain, in that care for at least 14 consecutive days. (9) For the purpose of this Act, a person is in approved respite care on a particular day if the person is eligible for a respite care supplement in respect of that day under section 44-12 of the Aged Care Act 1997. Temporarily separated couple (9A) Two people are members of a temporarily separated couple if they: (a) are members of a couple for the purposes of this Act; and (c) are living separately and apart from each other but not on a permanent or indefinite basis; and (d) are neither an illness separated nor a respite care couple. Note: for member of a couple see subsection 4(2) and section 24. Standard family situation categories (11) For the purposes of this Act: (a) a person is partnered if the person is a member of a couple; and (b) a person is partnered (partner getting neither pension nor benefit) if the person is a member of a couple and the person's partner: (i) is not receiving a social security pension; and (ii) is not receiving a social security benefit; and (iii) is not receiving a service pension or income support supplement; and (c) a person is partnered (partner getting pension or benefit) if the person is a member of a couple and the person's partner is receiving: (i) a social security pension; or (ii) a social security benefit; or (iii) a service pension or income support supplement; and (d) a person is partnered (partner getting pension) if the person is a member of a couple and the person's partner is receiving: (i) a social security pension; or (ii) a service pension or income support supplement; and (e) a person is partnered (partner getting benefit) if the person is a member of a couple and the person's partner is receiving a social security benefit; and (f) a person is partnered (partner in gaol) if the person is a member of a couple and the person's partner is: (i) in gaol; or (ii) undergoing psychiatric confinement because the partner has been charged with committing an offence. Note 1: For social security pension see subsection 23(1). Note 2: For in gaol see subsection 23(5). Note 3: For psychiatric confinement see subsections 23(8) and (9). 5 Family relationships definitions-children [see Appendix for CPI adjusted figures] (1) In this Act, unless the contrary intention appears: adopted child means a young person adopted under the law of any place, whether in Australia or not, relating to the adoption of children. dependent child has the meaning given by subsections (2) to (9). independent, in Parts 2.11, 3.4A, 3.4B, 3.5 and 3.7, has the meaning given in section 1067A. parent means: (a) (except in Part 2.11 and in the Youth Allowance Rate Calculator in section 1067G): (i) in relation to a young person, other than an adopted child-a natural parent of the young person; or (ii) in relation to an adopted child-an adoptive parent of the young person; or (b) in Part 2.11 and in the Youth Allowance Rate Calculator in section 1067G, in relation to a person (relevant person): (i) a natural or adoptive parent of the relevant person with whom the relevant person normally lives; or (ii) if a parent referred to in subparagraph (b)(i) is a member of a couple and normally lives with the other member of the couple-the other member of the couple; or (iii) any other person (other than the relevant person's partner) on whom the relevant person is wholly or substantially dependent; or (iv) if none of the preceding paragraphs applies-the natural or adoptive parent of the relevant person with whom the relevant person last lived. prescribed educational scheme means: (b) the ABSTUDY Scheme; or (ca) a Student Financial Supplement Scheme; or Note: An application under the Student Financial Supplement Scheme cannot be made in respect of a year, or a part of a year, that begins on or after the day on which the Student Assistance Legislation Amendment Act 2006 receives the Royal Assent (see subsection 1061ZY(2)). (e) the Veterans' Children Education Scheme; or (ea) the scheme to provide education and training under section 258 of the Military Rehabilitation and Compensation Act; or (f) the Post-Graduate Awards Scheme. prescribed student child has the meaning given by subsection (11). principal carer, of a child, has the meaning given by subsections (15) to (24). student child has the meaning given by subsection (1A). substitute care, in relation to a person, means care of the person: (a) provided by a carer (other than the natural or adoptive parent of the person) in the carer's home under the law of a State or Territory; and (b) for which no substitute care allowance or other allowance for the upkeep of the person is being paid to the carer by an authority of the State or Territory. young person has the meaning given by subsection (1B). (1A) A person is a student child at a particular time if: (a) at the time, the person: (i) has reached 16, but is under 22, years of age; and (ii) is receiving full-time education at a school, college or university; and (b) the person's income in the financial year in which that time occurs will not be more than $6,403. (1B) A person is a young person at a particular time if at that time the person: (a) is under 16 years of age; or (b) is a student child. Dependent child-under 16 (2) Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the adult) if: (a) the adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the young person, and the young person is in the adult's care; or (b) the young person: (i) is not a dependent child of someone else under paragraph (a); and (ii) is wholly or substantially in the adult's care. Note: For paragraph (a), see also subsection (16). (3) A young person who has not turned 16 cannot be a dependent child if: (a) the young person is not in full-time education; and (b) the young person is in receipt of income; and (c) the rate of that income exceeds $107.70 per week. Note: the amount in paragraph (c) is indexed annually in line with CPI increases (see sections 1191 to 1194). Dependent child-16 to 21 years of age (4) Subject to subsections (5) to (8), a young person is a dependent child of another person at a particular time if: (a) at that time, the young person: (i) has reached 16, but is under 22, years of age; and (ii) is wholly or substantially dependent on the other person; and (b) the young person's income in the financial year in which that time occurs will not be more than $6,403. (5) A young person who has turned 16 cannot be a dependent child of another person if the other person is the young person's partner. Dependent child-pension, benefit and Labour Market Program recipients (6) A young person cannot be a dependent child for the purposes of this Act if: (a) the young person is receiving a social security pension; or (b) the young person is receiving a social security benefit; or (c) the young person is receiving payments under a program included in the programs known as Labour Market Programs. Dependent child-residence requirements (7) For the purposes of this Act (other than the provisions dealing with special benefit), a young person is not to be treated as a dependent child of another person (in this subsection called the adult) unless: (a) if the adult is an Australian resident: (i) the young person is an Australian resident; or (ii) the young person is living with the adult; or (b) if the adult is not an Australian resident: (i) the young person is an Australian resident; or (ii) the young person has been an Australian resident and is living with the adult outside Australia; or (iii) the young person had been living with the adult in Australia and is living with the adult outside Australia. Note: for Australian resident see subsection 7(2). (8) For the purposes of working out the maximum rate of special benefit under subsection 746(2), a young person is not to be treated as a dependent child of another person (in this subsection called the adult) unless: (a) if the adult is an Australian resident: (i) the young person is an Australian resident or a resident of Australia; or (ii) the young person is living with the adult; or (b) if the adult is not an Australian resident-the young person is an Australian resident or a resident of Australia. Note: Australian resident is defined by subsection 7(2) but resident of Australia has its ordinary meaning and is not given any special definition by this Act. Subsection 7(3) is relevant to the question of whether a person is residing in Australia. (8A) For the purposes of Part 2.10, a young person who is an inmate of a mental hospital is a dependent child of a member of a couple if there is in force under subsection 37(3) a determination in respect of the young person and the member of the couple. Dependent child-inmate of mental hospital (9) For the purposes of Part 2.17, a young person who is an inmate of a mental hospital is a dependent child of another person if a determination under subsection 37(1) in respect of the young person and the other person is in force. Prescribed student child (11) A person is a prescribed student child if: (a) the person is a young person who has reached 16, but is under 22, years of age; and (b) the young person is qualified to receive payments under a prescribed educational scheme. (12) For the purposes of subsection (11), a young person is, subject to subsection (13), qualified to receive a payment under a prescribed educational scheme if: (a) the young person is receiving a payment under a prescribed educational scheme; or (b) someone else is receiving, in respect of the young person, a payment under a prescribed educational scheme; or (c) the Secretary has not formed the opinion that: (i) the young person will not, or would not if an application were duly made, receive a payment under a prescribed educational scheme; and (ii) no other person will, or would if an application were duly made, receive, in respect of the young person, a payment under a prescribed educational scheme. (13) For the purposes of subsection (11), a young person is not qualified to receive a payment under a prescribed educational scheme if: (a) the young person is not receiving a payment under a prescribed educational scheme; and (b) no other person is receiving, in respect of the young person, a payment under a prescribed educational scheme; and (c) the Secretary is satisfied that the educational scheme rate would be less than the social security rate. (14) For the purposes of subsection (13): (a) the educational scheme rate is the total of the amounts that would be payable to or in respect of the young person under the prescribed educational scheme; and (b) the social security rate is the Part A rate of family tax benefit for which a person would be eligible (in respect of the young person) if the young person were not a prescribed student child. Principal carer (15) A person is the principal carer of a child if: (a) the child is a dependent child of the person; and (b) the child has not turned 16. Note: The definition of dependent child in subsection (2) requires: (a) the adult to be legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the child: subsection (16) deals with the circumstances in which a step-parent is taken to have such legal responsibility; and (b) a child to be in an adult's care: subsection (17) deals with the circumstances in which a child is taken to remain in an adult's care. (16) For the purpose of determining whether a person is the principal carer of a child, the person is taken to be legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the child if: (a) the person is the step-parent of the child; and (b) the person is living with the child and a parent of the child; and (c) the person and the parent are members of the same couple. This subsection does not, by implication, affect the determination of whether a person is taken to be legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of a child in cases to which this subsection does not apply. (17) For the purpose of determining whether a person is the principal carer of a child, the child is taken to remain in the person's care if: (a) at the start of a period not exceeding 8 weeks, the child leaves the person's care; and (b) throughout the period, the child is the dependent child of another person; and (c) the child returns, or the Secretary is satisfied that the child will return, to the first person's care at the end of the period. This subsection does not, by implication, affect the determination of whether a child is in the care of a person in cases to which this subsection does not apply (for example, if the period exceeds 8 weeks). Principal carer-a child can only have one principal carer (18) Only one person at a time can be the principal carer of a particular child. (19) If the Secretary is satisfied that, but for subsection (18), 2 or more persons (adults) would be principal carers of the same child, the Secretary must: (a) make a written determination specifying one of the adults as the principal carer of the child; and (b) give a copy of the determination to each adult. (20) The Secretary may make the determination even if all the adults have not claimed a social security payment that is based on, or would be affected by, the adult being the principal carer of the child. Principal carer-which member of a couple can be a principal carer (20A) Subject to subsection (20B), a person is not the principal carer of any child if: (a) the person is a member of a couple; and (b) the other member of the couple is, or apart from this subsection would be, the principal carer of one or more children; and (c) the other member of the couple is receiving parenting payment, youth allowance, newstart allowance or special benefit; and (d) the payment, allowance or benefit is based on or affected by the other member of the couple being the principal carer of a child. (20B) If: (a) a member of a couple is receiving, or has made a claim for, a social security payment that is or would be based on or affected by the person being the principal carer of a child; and (b) the other member of the couple is receiving, or has made a claim for, a social security payment that is or would be based on or affected by the person being the principal carer of a child; and (c) apart from subsection (20C), the application of subsection (20A) would, or would if the claim or claims were granted, prevent each member of the couple from being the principal carer of any child; the Secretary must determine in writing that one of them can be a principal carer of a child. (20C) The determination has effect accordingly, despite subsection (20A). (20D) The Secretary must give a copy of the determination to each member of the couple. Principal carer-child absent from Australia (21) If a child: (a) leaves Australia temporarily; and (b) continues to be absent from Australia for more than 13 weeks; a person cannot be the principal carer of the child at any time after the 13 weeks while the child remains absent from Australia unless, at that time: (c) the child is in the company of a person to whom Division 2 of Part 4.2 applies; and (d) but for this subsection, the person would be the principal carer of the child; and (e) the person's portability period (within the meaning of that Division) for a social security payment: (i) that the person was receiving immediately before the person's absence from Australia; or (ii) the person's claim for which was granted during the absence; has not ended. (22) For the purposes of subsection (21), in determining if an absence is temporary, regard must be had to the following factors: (a) the purpose of the absence; (b) the intended duration of the absence; (c) the frequency of such absences. (23) If a child: (a) is born outside Australia; and (b) continues to be absent from Australia for a period of more than 13 weeks immediately following the child's birth; a person cannot be the principal carer of the child at any time after the 13 weeks while the child remains absent from Australia unless, at that time: (c) the child is in the company of a person to whom Division 2 of Part 4.2 applies; and (d) but for this subsection, the person would be the principal carer of the child; and (e) the person's portability period (within the meaning of that Division) for a social security payment: (i) that the person was receiving immediately before the person's absence from Australia; or (ii) the person's claim for which was granted during the absence; has not ended. (24) If: (a) a person is not the principal carer of a child because of subsection (21) (absence from Australia) or (23) (birth outside Australia), or because of a previous application of this subsection; and (b) the child comes to Australia; and (c) the child leaves Australia less than 13 weeks later; a person cannot be the principal carer of the child when the child leaves Australia as mentioned in paragraph (c). 5A Single person sharing accommodation (1) For the purposes of this Act, a person is to be treated as a single person sharing accommodation if the person: (a) is not a member of a couple; and (b) has no dependent children; and (c) has, in common with one or more other people, the right to use at least one major area of accommodation. (2) A person is not to be treated as a single person sharing accommodation if the person: (a) pays, or is liable to pay, amounts for the person's board and lodging; or (ab) is residing in exempt accommodation (see subsections (5A), (5B) and (5C)); or (b) is the recipient of a disability support pension or a carer pension; or (c) is residing in a nursing home. (3) A person who has the exclusive right to use a bathroom, a kitchen and a bedroom is not to be treated as a single person sharing accommodation solely because the person has the right, in common with one or more other people, to use other major areas of accommodation. (4) A person is not to be treated as a single person sharing accommodation solely because the person shares accommodation with one or more recipient children of the person. (5) If: (a) a person lives alone in a caravan or mobile home, or on board a vessel; or (b) a person shares accommodation in a caravan, mobile home or vessel solely with one or more recipient children of the person; the person is not to be treated as a single person sharing accommodation solely because the person has the right, in common with one or more other people, to use one or more major areas of accommodation in a caravan park or marina. (5A) A person's accommodation is exempt accommodation if it is in premises that are, in the Secretary's opinion, a boarding house, guest house, hostel, hotel, private hotel, rooming house, lodging house or similar premises. (5B) In forming an opinion about a person's accommodation for the purposes of subsection (5A), the Secretary is to have regard to the characteristics of the accommodation including, in particular, whether or not the following are characteristics of the accommodation: (a) the premises are known as a boarding house, guest house, hostel, hotel, private hotel, rooming house, lodging house or similar premises; (b) a manager or administrator (other than a real estate agent) is retained to manage the premises or administer the accommodation on a daily or other frequent regular basis; (c) staff are retained by the proprietor or manager of the premises to work in the premises on a daily or other frequent regular basis; (d) the residents lack control over the day-to-day management of the premises; (e) there are house rules, imposed by the proprietor or manager, that result in residents having rights that are more limited than those normally enjoyed by a lessee of private residential accommodation (for example, rules limiting the hours of residents' access to their accommodation or limiting residents' access to cooking facilities in the premises); (f) the person does not have obligations to pay for his or her costs of gas, water or electricity separately from the cost of the accommodation; (g) the accommodation is not private residential accommodation, having regard to: (i) the number and nature of bedrooms in the premises; or (ii) the number of people who are not related to one another living at the premises; or (iii) the number and nature of bathrooms in the premises; (h) the person's accommodation has not been offered to the person on a leasehold basis; (j) there is no requirement that the person pay a bond as security for either the payment of rent or the cost of any damage caused by the person, or for both; (k) the person's accommodation is available on a daily or other short-term basis. (5C) Each of the characteristics set out in subsection (5B) points towards the accommodation in question being exempt accommodation. (6) In this section: major area of accommodation means any of the following, whether identifiably separate from other areas of accommodation or not: (a) a bathroom; (b) a kitchen; (c) a bedroom. recipient child means a child who receives any of the following, but who does not receive any amount by way of rent assistance: (a) a social security payment; (c) a payment under the ABSTUDY Schooling scheme or the ABSTUDY Tertiary scheme; (d) a service pension; (e) a youth training allowance. 5B Registered and active foster carers (1) A person is a registered and active foster carer if the Secretary is satisfied that: (a) the person meets the requirements (if any) of the law of the State or Territory in which the person resides that the person must meet in order to be permitted, under the law of that State or Territory, to provide foster care in that State or Territory; and (b) the person is taken, in accordance with guidelines made under subsection (2), to be actively involved in providing foster care in that State or Territory. (2) The Secretary may, by legislative instrument, make guidelines setting out the circumstances in which persons are taken, for the purposes of the social security law, to be actively involved in providing foster care in that State or Territory. 5C Home educators A person is a home educator of a child if the Secretary is satisfied that: (a) the child is receiving, in the person's home, education that wholly or substantially replaces the education that the child would otherwise receive by attending a school; and (b) the person meets the requirements (if any) of the law of the State or Territory in which the person resides that the person must meet in order to be permitted, under the law of that State or Territory, to provide that education to the child; and (c) the person is suitably involved in providing and supervising that education. 5D Distance educators A person is a distance educator of a child if the Secretary is satisfied that: (a) the child is enrolled to receive education by undertaking a distance education curriculum; and (b) the child is undertaking that curriculum; and (c) the person is suitably involved in assisting and supervising the child in relation to that curriculum. 5E Relatives (other than parents) A person is a relative (other than a parent) of a child if: (a) the person is not the child's natural parent, adoptive parent or step-parent; and (b) any of the following apply to the person: (i) the person is related to the child by blood, adoption or marriage; (ii) if the child is an Aboriginal or Torres Strait Islander child who has traditional Aboriginal or Torres Strait Islander kinship ties-the person is related to the child under Aboriginal or Torres Strait Islander kinship rules; (iii) if the child is a member of a community that accepts relationships other than those referred to in subparagraphs (i) and (ii) as kinship ties-the person is accepted by the community to be related to the child. 6 Double orphan pension definitions In this Act, unless the contrary intention appears: approved care organisation means an organisation approved by the Secretary under subsection 35(1). double orphan means a young person who is a double orphan in accordance with section 993 or 994. 6A Concession card definitions (1) In this Act, unless the contrary intention appears: automatic issue card means: (a) a pensioner concession card; or (b) an automatic issue health care card. automatic issue health care card means a health care card issued to a person qualified for the card under Subdivision A of Division 3 of Part 2A.1. concession card means: (a) a pensioner concession card; or (b) a health care card; or (c) a seniors health card. dependant, in relation to a person who is the holder of a pensioner concession card or an automatic issue health care card (other than a health care card for which the person is qualified under subsection 1061ZK(4)), means a person who is: (a) the partner; or (b) a dependent child; of the holder of the card. dependant, in relation to a person who is the holder of a health care card for which the person is qualified under subsection 1061ZK(4) or Subdivision B of Division 3 of Part 2A.1, means a person who is: (a) the partner; or (b) an FTB child; or (c) a regular care child; of the holder of the card. dependant, in relation to a person, other than a child in foster care, who has made a claim for a health care card (the claimant), means a person who is: (a) the partner; or (b) an FTB child; or (c) a regular care child; of the claimant. (2) For the purposes of the operation of a definition of dependant in subsection (1) in relation to a provision of Part 2A.1, a person (the child) is an FTB child, or a regular care child, of another person (the adult) if: (a) the child is an FTB child, or a regular care child, (as the case requires) of the adult within the meaning of the Family Assistance Act; and (b) either: (i) the child is under 16 years of age; or (ii) the child is 16, but not yet 19, years of age and is undertaking secondary studies. 7 Australian residence definitions (1) In this Act, unless the contrary intention appears: Australian resident has the meaning given by subsection (2). designated temporary entry permit means: (a) an old PRC (temporary) entry permit held by the partner or a dependent child (if any) of a citizen of the People's Republic of China if that citizen holds an old PRC (temporary) entry permit; or (b) a new PRC (temporary) entry permit held by the partner or a dependent child (if any) of a citizen of the People's Republic of China if that citizen holds: (i) an old PRC (temporary) entry permit; or (ii) a new PRC (temporary) entry permit. former refugee means a person who was a refugee but does not include a person who ceased to be a refugee because his or her visa or entry permit (as the case may be) was cancelled. holder, in relation to a visa, has the same meaning as in the Migration Act 1958. new PRC (temporary) entry permit means an entry permit within class 437 of Division 2.6-Group 2.6 in Part 2 of Schedule 1 to the Migration (1993) Regulations as in force before 1 September 1994. old PRC (temporary) entry permit means a PRC (temporary) entry permit within the meaning of the Migration (1989) Regulations as in force before 1 February 1993. permanent visa, special category visa, special purpose visa, temporary visa and visa have the same meaning as in the Migration Act 1958. protected SCV holder has the meaning given by subsections (2A), (2B), (2C) and (2D). qualifying Australian residence has the meaning given by subsection (5). qualifying residence exemption has the meaning given in subsections (6) and (6AA). (2) An Australian resident is a person who: (a) resides in Australia; and (b) is one of the following: (i) an Australian citizen; (ii) the holder of a permanent visa; (iii) a special category visa holder who is a protected SCV holder. Note: For holder and permanent visa see subsection (1). (2A) A person is a protected SCV holder if: (a) the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or (b) the person had been in Australia for a period of, or for periods totalling, 12 months during the period of 2 years immediately before 26 February 2001, and returned to Australia after that day. (2B) A person is a protected SCV holder if the person: (a) was residing in Australia on 26 February 2001; and (b) was temporarily absent from Australia on 26 February 2001; and (c) was a special category visa holder immediately before the beginning of the temporary absence; and (d) was receiving a social security payment on 26 February 2001; and (e) returned to Australia before the later of the following: (i) the end of the period of 26 weeks beginning on 26 February 2001; (ii) if the Secretary extended the person's portability period for the payment under section 1218C-the end of the extended period. (2C) A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if: (a) the time is during the period of 3 years beginning on 26 February 2001; or (b) the time is after the end of that period, and either: (i) a determination under subsection (2E) is in force in respect of the person; or (ii) the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder. (2D) A person who, on 26 February 2001: (a) was residing in Australia; and (b) was temporarily absent from Australia; and (c) was not receiving a social security payment; is a protected SCV holder at a particular time if: (d) the time is during the period of 12 months beginning on 26 February 2001; or (e) the time is after the end of that period, and either: (i) at that time, a determination under subsection (2E) is in force in respect of the person; or (ii) the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder. (2E) A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that: (a) the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; or (b) the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001. (2F) If a person makes an application under subsection (2E), the Secretary must make the determination if: (a) the Secretary is satisfied that paragraph (2E)(a) or (2E)(b) applies to the person; and (b) the application was made within whichever of the following periods is applicable: (i) if paragraph (2E)(a) applies to the person-the period of 12 months beginning on 26 February 2001; (ii) if paragraph (2E)(b) applies to the person-the period of 3 years beginning on 26 February 2001. The Secretary must give a copy of the determination to the person. (2G) The Secretary must make a determination under this subsection in respect of a person if the person is a protected SCV holder because of subsection (2B). If the Secretary is required to make such a determination: (a) the determination must state that the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; and (b) the determination must be made within the period of 6 months of the person's return to Australia; and (c) a copy of the determination must be given to the person. (3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to: (a) the nature of the accommodation used by the person in Australia; and (b) the nature and extent of the family relationships the person has in Australia; and (c) the nature and extent of the person's employment, business or financial ties with Australia; and (d) the nature and extent of the person's assets located in Australia; and (e) the frequency and duration of the person's travel outside Australia; and (f) any other matter relevant to determining whether the person intends to remain permanently in Australia. (4) For the purposes of: (a) Part 2.2 (age pension); and (b) Part 2.3 (disability support pension); and (d) Part 2.7 (bereavement allowance); and (e) Part 2.8 (widow B pension); the following apply: (f) residence of a claimant in an external Territory other than Norfolk Island is taken to be residence in Australia; and (g) residence of a claimant in Norfolk Island is taken not to interrupt the continuity of residence of the claimant in Australia. (4AA) Whether residence in a particular place is residence in an external territory for the purposes of subsection (4) is to be determined as at the time of residence. (4B) For the purposes of a newly arrived resident's waiting period, the day on which a permanent visa is granted to a person or a person becomes the holder of a permanent visa is: (a) if an initial decision maker decides to grant a visa to the person-that day; or (b) if: (i) an initial decision maker decides not to grant a visa to the person; and (ii) on a review of the decision referred to in subparagraph (i), that decision is set aside (however described) and a visa is granted to the person; the day on which the initial decision maker decided not to grant the visa to the person. (5) A person has 10 years qualifying Australian residence if and only if: (a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or (b) the person has been an Australian resident during more than one period and: (i) at least one of those periods is 5 years or more; and (ii) the aggregate of those periods exceeds 10 years. (6) A person has a qualifying residence exemption for a social security pension, a social security benefit (other than a special benefit), a mobility allowance, a pensioner education supplement, a seniors health card or a health care card if, and only if, the person: (a) resides in Australia; and (b) is either: (i) a refugee; or (ii) a former refugee. (6AA) A person also has a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance, a seniors health card or a health care card if, and only if, the person: (b) was a family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or (f) holds or was the former holder of a visa that is in a class of visas determined, by legislative instrument, by the Minister for the purposes of this paragraph. (6B) A person is a refugee for the purposes of this section if the person: (a) is taken, under the Migration Reform (Transitional Provisions) Regulations, to be the holder of a transitional (permanent) visa because the person was, immediately before 1 September 1994, the holder of: (i) a visa or entry permit that fell within Division 1.3-Group 1.3 (Permanent resident (refugee and humanitarian) (offshore)) in Part 1 of Schedule 1 to the Migration (1993) Regulations as then in force; or (ii) a visa or entry permit that fell within Division 1.5-Group 1.5 (Permanent resident (refugee and humanitarian) (on-shore)) in Part 1 of Schedule 1 to the Migration (1993) Regulations as then in force; or (b) was, immediately before 1 February 1993, the holder of a visa or entry permit of a class prescribed under the Migration Regulations as then in force that corresponds to a visa or entry permit referred to in subparagraph (a)(i) or (ii); or (c) is the holder of: (i) a permanent protection visa; or (ii) a permanent visa of a class referred to in the Table at the end of this subsection; or (iii) a permanent visa of a class referred to in a declaration of the Minister under section 25 that is in force. |Table-Classes of permanent visas giving | |refugee status and qualifying residence | |exemption | |Item |Class description |Relevant | |No. | |item in | | | |Schedule 1 | | | |to Migration| | | |Regulations | |1. |Burmese in Burma |1102 | | |(Special Assistance) | | | |(Class AB) | | |2. |Burmese in Thailand |1103 | | |(Special Assistance) | | | |(Class AC) | | |3. |Cambodian (Special |1105 | | |Assistance) (Class AE) | | |4. |Camp Clearance (Migrant)|1106 | | |(Class AF) | | |5. |Citizens of the Former |1109 | | |Yugoslavia (Special | | | |Assistance) (Class AI) | | |6. |East Timorese in |1113 | | |Portugal, Macau and | | | |Mozambique (Special | | | |Assistance) (Class AM) | | |7. |Minorities of Former |1122 | | |USSR (Special | | | |Assistance) (Class AV) | | |8. |Refugee and Humanitarian|1127 | | |(Migrant) (Class BA) | | |8A |Sri Lankan (Special |1129A | | |Assistance) (Class BF) | | |9. |Sudanese (Special |1130 | | |Assistance) (Class BD) | | |10. |Territorial Asylum |1131 | | |(Residence) (Class BE) | | (6D) For the purposes of subsection (6AA): family member, in relation to a person, means: (a) a partner of the person; or (b) a dependent child of the person; or (c) another person who, in the opinion of the Secretary, should be treated for the purposes of this definition as a person described in paragraph (a) or (b). (6E) The Minister may, by legislative instrument: (a) set guidelines for the exercise of the Secretary's power under paragraph (6D)(c); and (b) revoke or vary those guidelines. (7) For the purposes of paragraph 540(d), subparagraphs 593(1)(g)(ii) and 593(1D)(b)(ii) and paragraph 666(1)(g), a person is exempt from the residence requirement in respect of a period if: (a) throughout the period, the person was the holder of a special category visa; and (b) immediately before the period commenced, the person had been residing in Australia for a continuous period of at least 10 years, being a period commencing on or after 26 February 2001; unless the person's exemption from the residence requirement in respect of the period would result in the person: (c) receiving newstart allowance, sickness allowance or youth allowance for a continuous period of more than 6 months because of this subsection; or (d) receiving newstart allowance, sickness allowance or youth allowance for more than one non-continuous period because of this subsection; or (e) receiving more than one of those allowances because of this subsection. 8 Income test definitions (1) In this Act, unless the contrary intention appears: approved scholarship means a scholarship in relation to which a determination under section 24A is in force. available money, in relation to a person, means money that: (a) is held by or on behalf of the person; and (b) is not deposit money of the person; and (c) is not the subject of a loan made by the person. deposit money, in relation to a person, means the person's money that is deposited in an account with a financial institution. dispose of income has the meaning given by section 1106. domestic payment has the meaning given by subsection (3). earned, derived or received has the meaning given by subsection (2). employment income, in relation to a person, means ordinary income of the person that comprises employment income under subsection (1A) and includes ordinary income that is characterised as employment income of the person because of the operation of subsection (1B). exempt lump sum has the meaning given by subsection (11). home equity conversion agreement, in relation to a person, means an agreement under which the repayment of an amount paid to or on behalf of the person, or the person's partner, is secured by a mortgage of the principal home of the person or the person's partner. Note: see also subsection (7). income, in relation to a person, means: (a) an income amount earned, derived or received by the person for the person's own use or benefit; or (b) a periodical payment by way of gift or allowance; or (c) a periodical benefit by way of gift or allowance; but does not include an amount that is excluded under subsection (4), (5) or (8). Note 1: See also sections 1074 and 1075 (business income), sections 1076-1084 (deemed income from financial assets), sections 1095 to 1099DAA (income from income streams), section 1099F (exempt bond amount does not count as income) and section 1099K (refunded amount does not count as income). Note 2: where a person or a person's partner has disposed of income, the person's income may be taken to include the amount which has been disposed of-see sections 1106-1112. Note 3: income is equivalent to ordinary income plus maintenance income. income amount means: (a) valuable consideration; or (b) personal earnings; or (c) moneys; or (d) profits; (whether of a capital nature or not). income from personal exertion means an income amount that is earned, derived or received by a person by way of payment for personal exertion by the person but does not include an income amount received as compensation for the person's inability to earn, derive or receive income through personal exertion. ordinary income means income that is not maintenance income or an exempt lump sum. Note 1: for maintenance income see subsection 10(1). Note 2: amounts received as a series of periodic compensation payments may result in reduction of the person's rate of social security pension or benefit under Part 3.14: if this happens the amounts are not counted as ordinary income (see section 1176). Note 3: For provisions affecting the amount of a person's ordinary income see sections 1072 and 1073 (ordinary income concept), sections 1074 and 1075 (business income), sections 1076-1084 (deemed income from financial assets) and sections 1095- 1099DAA (income from income streams). student income bank means the student income bank set out: (a) in Module J of the Youth Allowance Rate Calculator; or (b) in Module E of the Austudy Payment Rate Calculator. working credit participant means a person who is a working credit participant within the meaning of section 1073D. (1A) A reference in this Act to employment income, in relation to a person, is a reference to ordinary income of the person: (a) that is earned, derived or received, or that is taken to have been earned, derived or received, by the person from remunerative work undertaken by the person as an employee in an employer/employee relationship; and (b) that includes, but is not limited to, salary, wages, commissions and employment-related fringe benefits that are so earned, derived or received or taken to have been so earned, derived or received; but does not include: (c) a superannuation payment to the person; or (d) a payment of compensation, or a payment to the person under an insurance scheme, in relation to the person's inability to earn, derive or receive income from that remunerative work; or (e) a leave payment to the person; or (f) a payment to the person by a former employer of the person in relation to the termination of the person's employment; or (g) a comparable foreign payment. (1B) For the avoidance of doubt, if: (a) a person is treated, for the purposes of working out the person's ordinary income, as having earned, derived or received any ordinary income that was in fact earned, derived or received, or taken to have been earned, derived or received, by the partner of the person; and (b) that ordinary income would be characterised as employment income in the hands of the partner if the partner were not a member of a couple; then, for the purposes of this Act, that ordinary income is to be similarly characterised in the hands of the person. (1C) For the purposes of paragraph (1A)(e), a leave payment: (a) includes a payment in respect of sick leave, annual leave, maternity leave or long service leave; and (b) may be made as a lump sum payment, a payment that is one of a series of regular payments or otherwise; and (c) is taken to be made to the person if it is made to another person: (i) at the direction of the first-mentioned person or of a court; or (ii) on behalf of the first-mentioned person; or (iii) for the benefit of the first-mentioned person; or (iv) if the first-mentioned person waives or assigns his or her right to the payment. Earned, derived or received (2) A reference in this Act to an income amount earned, derived or received is a reference to: (a) an income amount earned, derived or received by any means; and (b) an income amount earned, derived or received from any source (whether within or outside Australia). Domestic payments (3) A payment received by a person is a domestic payment for the purposes of this Act if: (a) the person receives the payment on the disposal of an asset of the person; and (b) the asset was used, immediately before the disposal, by the person or the person's partner for private or domestic purposes; and (c) the asset was used by the person or the person's partner for those purposes for: (i) a period of 12 months before the disposal; or (ii) if the Secretary considers it appropriate-a period of less than 12 months before the disposal. Excluded amounts-home equity conversion (not member of a couple) (4) If a person is not a member of a couple, an amount paid to or on behalf of the person under a home equity conversion agreement is an excluded amount for the person to the extent that the total amount owed by the person from time to time under home equity conversion agreements does not exceed $40,000. Excluded amounts-home equity conversion (member of a couple) (5) If a person is a member of a couple, an amount paid to or on behalf of the person or the person's partner under a home equity conversion agreement is an excluded amount for the person to the extent that the total amount owed by the person and the person's partner under home equity conversion agreements from time to time does not exceed $40,000. Home equity conversion (amount owed) (6) For the purposes of this Act, the amount owed by a person under a home equity conversion agreement is the principal amount secured by the mortgage concerned and does not include: (a) any amount representing mortgage fees; or (b) any amount representing interest; or (c) any similar liability whose repayment is also secured by the mortgage. Home equity conversion (principal home) (7) For the purposes of the definition of home equity conversion agreement in subsection (1), an asset cannot be a person's principal home unless the person or the person's partner has a beneficial interest (but not necessarily the sole beneficial interest) in the asset. Excluded amounts-general (8) The following amounts are not income for the purposes of this Act: (a) a payment under this Act; (b) any return on a person's investment in: (i) a superannuation fund; or (ii) an approved deposit fund; or (iii) a deferred annuity; or (iv) an ATO small superannuation account; until the person: (v) reaches pension age; or (vi) starts to receive a pension or annuity out of the fund; (ba) any return on a person's investment in an FHSA (within the meaning of the First Home Saver Accounts Act 2008); (c) the value of emergency relief or like assistance; (e) a payment under the Handicapped Persons Assistance Act 1974; (f) a payment under Part III of the Disability Services Act 1986 or the value of any rehabilitation program (including any follow- up program) provided under that Part; (g) a payment of domiciliary nursing care benefit under Part VB of the National Health Act 1953 as in force immediately before 1 July 1999; (h) a payment under a law of the Commonwealth, being a law having an object of assisting persons to purchase or build their own homes; (ha) a payment made by a State or Territory for the purpose of assisting the person to purchase or build his or her own home; (j) a payment made to the person for or in respect of a dependent child of the person; (jaa) a payment of family assistance, or of one-off payment to families, under the Family Assistance Act; (jab) a payment under the scheme determined under Schedule 3 to the Family Assistance Legislation Amendment (More Help for Families- One-off Payments) Act 2004; (jac) a payment under the scheme determined under Schedule 2 to the Social Security Legislation Amendment (One-off Payments for Carers) Act 2005; (jad) a payment under the scheme determined under Schedule 4 to the Social Security and Veterans' Entitlements Legislation Amendment (One-off Payments to Increase Assistance for Older Australians and Carers and Other Measures) Act 2006; (jae) a payment under the scheme determined under Schedule 4 to the Social Security and Veterans' Affairs Legislation Amendment (One-off Payments and Other 2007 Budget Measures) Act 2007; (jaf) a payment under the scheme determined under Schedule 4 to the Social Security and Veterans' Entitlements Legislation Amendment (One-off Payments and Other Budget Measures) Act 2008; (ja) disability expenses maintenance; (k) insurance or compensation payments made by reason of the loss of, or damage to, buildings, plant or personal effects; (ka) where: (i) the person owes money under a mortgage or other arrangement; and (ii) the person has insurance which requires the insurer to make payments to the creditor when the person is unemployed or ill or in other specified circumstances; and (iii) payments are made to the creditor under the insurance; a payment so made; (m) money from an investment that is: (i) an investment of payments of the kind referred to in paragraph (k); and (ii) an investment for: (A) a period of not more than 12 months after the person receives the payments; or (B) if the Secretary thinks it appropriate-of 12 months or more after the person receives those payments; (ma) money from an exempt funeral investment; Note: for exempt funeral investment see section 19E. (n) an amount paid, under a law of, or applying in, a country or part of a country, by way of compensation for a victim of National Socialist persecution; (q) in the case of a person who pays or who is liable to pay rent, a payment by way of rent subsidy made by the Commonwealth, by a State or Territory or by an authority of the Commonwealth or of a State or Territory to or on behalf of the person who pays or who is liable to pay rent; (r) a payment received by a trainee in full-time training under a program included in the programs known as Labour Market Programs, to the extent that the payment includes one or more of the following amounts: (i) an amount calculated by reference to a rate of newstart allowance; (ii) an amount known as the training component; (iii) an amount by way of a living away from home allowance; (s) in the case of a person who is receiving a social security pension, a social security benefit, a service pension or income support supplement and is in part-time training, or engaged in part-time work experience, under a program included in the programs known as Labour Market Programs-a payment received by the person under that program in respect of the person's expenses associated with his or her participation in the training or work experience; (t) a payment received by the person under the scheme known as the New Enterprise Incentive Scheme; (ta) a payment made by the Commonwealth known as the Apprenticeship Wage Top-Up to the person; (u) a benefit under a law of the Commonwealth that relates to the provision of: (i) pharmaceutical, sickness or hospital benefits; or (ii) medical or dental services; (v) a payment (other than a periodical payment or a payment representing an accumulation of instalments) made for or in respect of expenses incurred by a person for hospital, medical, dental or similar treatment; (va) a payment made by the Mark Fitzpatrick Trust to a person by way of assistance with expenses incurred in relation to a person who has medically acquired HIV infection; (vb) a payment made by the New South Wales Medically-Acquired HIV Trust to a person by way of financial assistance with expenses incurred in relation to a person who has medically acquired HIV infection; (w) in the case of a member of: (i) the Naval Reserve; or (ii) the Army Reserve; or (iii) the Air Force Reserve; the pay and allowances paid to the person as such a member (other than pay and allowances in respect of continuous full- time service); (y) a payment by way of: (i) service pension or income support supplement; or (ia) one-off payment to the aged under regulations made under the Veterans' Entitlements Act; or (ii) attendant allowance under section 98 of the Veterans' Entitlements Act; or (iii) recreation allowance under section 104 of that Act; or (iv) an allowance for the running and maintenance of a motor vehicle under the Vehicle Assistance Scheme referred to in section 105 of that Act; or (v) decoration allowance under section 102 of that Act; or (vi) Victoria Cross allowance under section 103 of that Act; or (vii) clothing allowance under section 97 of that Act; or (viia) utilities allowance under Part VIIAC of that Act; or (viib) seniors concession allowance under Part VIIAD of that Act; or (viii) a bereavement payment under Part III, or section 98A of that Act; or (ix) a funeral benefit under Part VI of that Act; or (x) a payment under Part VIIAB (DFISA) of that Act (including a payment made under regulations made under that Part); (ya) a payment made by the Commonwealth and known as the one-off payment to the aged; or (yb) 2006 one-off payment to older Australians under the Veterans' Entitlements Act; (yc) a payment under a scheme determined under Schedule 2 to the Social Security and Veterans' Entitlements Legislation Amendment (One-off Payments to Increase Assistance for Older Australians and Carers and Other Measures) Act 2006; (yd) 2007 one-off payment to older Australians under the Veterans' Entitlements Act; (ye) a payment under a scheme determined under Schedule 2 to the Social Security and Veterans' Affairs Legislation Amendment (One-off Payments and Other 2007 Budget Measures) Act 2007; (yf) 2008 one-off payment to older Australians under the Veterans' Entitlements Act; (yg) a payment under a scheme determined under Schedule 2 to the Social Security and Veterans' Entitlements Legislation Amendment (One-off Payments and Other Budget Measures) Act 2008; (z) a periodical payment by way of gift or allowance, or a periodical benefit by way of gift or allowance, from the person's father, mother, son, daughter, brother or sister; Note: the rule in paragraph 8(8)(z) is reversed in Youth Allowance Rate Calculator (point 1067G-H21), Austudy Payment Rate Calculator (point 1067L-D15), Benefit Rate Calculator B (point 1068-G5) and the Parenting Allowance Rate Calculator (point 1068B-D5). Points 1067G-H21, 1067L- D15, 1068-G5 and 1068A-D6 are contrary intentions (see the opening words in subsection 8(1) and the definition of income in that subsection). (za) the value of board or lodging received by the person; (zb) a domestic payment; (zc) so much of a payment received by the person as is, in accordance with an agreement between the Commonwealth and a foreign country, applied in reduction of the amount of social security payment that would otherwise be payable to the person under this Act; (zd) a payment made to the person by the Government of New Zealand, being a payment known as: (i) accommodation benefit; or (ii) disability allowance; or (iii) home help payment; or (iv) special benefit; or (v) training incentive allowance; (ze) a payment made to the person by the Government of the United Kingdom, being a payment known as: (i) clothing allowanc