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Social Security Act 1991

  • - C2011C00098
  • In force - Superseded Version
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Act No. 46 of 1991 as amended, taking into account amendments up to Veterans' Affairs and Other Legislation Amendment (Miscellaneous Measures) Act 2010
An Act to provide for the payment of certain pensions, benefits and allowances, and for related purposes
Administered by: Education, Employment and Workplace Relations; Families, Housing, Community Services and Indigenous Affairs; Attorney-General's; Industry, Innovation, Science, Research and Tertiary Education
Registered 27 Jan 2011
Start Date 17 Nov 2010
End Date 21 Mar 2011
Table of contents.

Social Security Act 1991

Act No. 46 of 1991 as amended

This compilation was prepared on 19 January 2011
taking into account amendments up to Act No. 120 of 2010

[Note: Divisions 12A and 14 of Part 2.13A ceased to have effect on
30 June 2010, see sections 665ZXC and 665ZZE]

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 – 8
                                    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.............................................. 19

5B......... Registered and active foster carers.................................................... 21

5C......... Home educators................................................................................ 22

5D......... Distance educators............................................................................ 22

5E.......... Relatives (other than parents)............................................................ 22

5F.......... Secondary pupil child........................................................................ 23

5G......... Main supporter of secondary pupil child........................................... 24

6............ Double orphan pension definitions................................................... 24

6A......... Concession card definitions.............................................................. 24

7............ Australian residence definitions........................................................ 26

8............ Income test definitions...................................................................... 33

9............ Financial assets and income streams definitions................................ 49

9A......... Meaning of asset‑test exempt income stream—lifetime income streams  58

9B......... Meaning of asset‑test exempt income stream—life expectancy income streams      66

9BA...... Meaning of asset‑test exempt income stream—market‑linked income streams        73

9C......... Family law affected income streams.................................................. 78

9D......... Asset‑tested status of secondary FLA income streams..................... 79

10.......... Maintenance income definitions........................................................ 79

10A....... Definitions for Seniors Health Card provisions................................ 80

10B....... Family actual means test definitions.................................................. 91

11.......... Assets test definitions........................................................................ 96

11A....... Principal home definition for the purpose of the assets test............ 101

12.......... Retirement villages definitions........................................................ 106

12A....... Granny flat definitions.................................................................... 107

12B....... Sale leaseback definitions............................................................... 108

12C....... Special residence and residents definitions..................................... 110

13.......... Rent definitions............................................................................... 111

14.......... Remote area definitions.................................................................. 117

14A....... Social security benefit liquid assets test definitions......................... 118

16.......... Industrial action definitions............................................................ 121

16A....... Seasonal work definitions............................................................... 122

16B....... Partial capacity to work................................................................... 132

17.......... Compensation recovery definitions................................................. 133

17A....... Retirement assistance for farmers definitions.................................. 140

17B....... Retirement assistance for sugarcane farmers definitions................. 144

18.......... Parenting payment definitions......................................................... 149

19.......... Mobility allowance definitions........................................................ 149

19A....... Fares allowance definitions............................................................. 150

19AA.... Fares allowance definitions............................................................. 151

19AB.... Student Financial Supplement Scheme definitions.......................... 153

19B....... Financial hardship (Carer payment) liquid assets test definition...... 158

19C....... Severe financial hardship definitions............................................... 158

19D....... Severe financial hardship—crisis payment definition...................... 163

19E........ Exempt funeral investments............................................................ 165

20.......... Indexation and rate adjustment definitions..................................... 166

20A....... Pension supplement rate definitions................................................ 167

21.......... Bereavement definitions.................................................................. 170

22.......... Review of decisions definitions........................................................ 171

23.......... General definitions.......................................................................... 171

Part 1.3—Determinations having interpretative effect                               203

24.......... Person may be treated as not being a member of a couple (subsection 4(2))            203

24A....... Approved scholarship..................................................................... 204

25.......... Refugee visas.................................................................................. 204

28.......... Approved programs of work for income support payment............. 204

28A....... Approval of programs of assistance................................................ 205

28B....... Approved training courses for training supplement........................ 206

29.......... Approval of friendly societies......................................................... 207

30.......... Approval of mental hospitals.......................................................... 207

31.......... Approval of follow‑up rehabilitation programs............................... 207

32.......... Approval of sheltered employment—non‑profit organisation......... 208

33.......... Approval of sheltered employment—supported employment......... 208

35.......... Approval of care organisation......................................................... 209

35A....... Personal Care Support.................................................................... 209

36.......... Major disaster................................................................................. 209

37.......... Dependent child—inmate of a mental hospital................................ 210

38B....... Notional continuous period of receipt of income support payments 210

38C....... Adult Disability Assessment Tool.................................................. 212

38E........ Disability Care Load Assessment (Child) Determination................ 213

38F........ Treating health professional............................................................ 213

Part 1.4—Miscellaneous                                                                                                 214

39.......... Tables, calculators etc. form part of section..................................... 214

Chapter 2—Pensions, benefits and allowances                                                216

Part 2.2—Age pension                                                                                                     216

Division 1—Qualification for and payability of age pension               216

Subdivision A—Qualification                                                                             216

43.......... Qualification for age pension.......................................................... 216

Subdivision B—Payability                                                                                   217

44.......... Age pension not payable if pension rate nil..................................... 217

47.......... Multiple entitlement exclusion......................................................... 217

47A....... Exclusion of certain participants in ABSTUDY Scheme................ 219

Division 4—Rate of age pension                                                                         220

55.......... How to work out a person’s age pension rate................................. 220

Division 9—Bereavement payments                                                                 221

Subdivision A—Death of partner                                                                       221

82.......... Qualification for payments under this Subdivision......................... 221

83.......... Continued payment of deceased partner’s previous entitlement...... 223

84.......... Lump sum payable in some circumstances...................................... 223

85.......... Adjustment of person’s age pension rate........................................ 225

86.......... Effect of death of person entitled to payments under this Subdivision 225

87.......... Matters affecting payment of benefits under this Subdivision......... 227

Subdivision C—Death of recipient                                                                     228

91.......... Death of recipient............................................................................ 228

Part 2.2A—Pension bonus                                                                                            229

Division 1—Introduction                                                                                        229

92A....... Simplified outline............................................................................ 229

92B....... Definitions...................................................................................... 229

Division 2—Qualification for pension bonus                                                231

92C....... Qualification for pension bonus...................................................... 231

Division 3—Registration as a member of the pension bonus scheme 233

Subdivision A—Membership of the pension bonus scheme                         233

92D....... Application for registration............................................................. 233

92E........ Form of application......................................................................... 233

92F........ Relevant information....................................................................... 233

92G....... Lodgment of application.................................................................. 234

92H....... Timing of application and registration............................................. 234

92J........ Registration..................................................................................... 236

92K....... Duration of membership................................................................. 237

92L........ Cancellation of membership............................................................ 237

92M...... Application for registration is not to be treated as a claim............... 238

Subdivision B—Classification of membership of the pension bonus scheme  238

92N....... Accruing membership..................................................................... 238

92P........ Non‑accruing membership—preclusion periods............................. 238

92Q....... Non‑accruing membership—Secretary’s discretion........................ 239

92R....... Continuity of accruing membership is not broken by a period of non‑accruing membership   239

92S........ Post‑75 membership....................................................................... 240

Division 4—Accrual of bonus periods                                                             241

92T........ Accrual of bonus periods................................................................ 241

Division 5—Passing the work test                                                                      243

Subdivision A—The work test                                                                             243

92U....... Work test—full‑year period............................................................ 243

92V....... Work test—part‑year period............................................................ 244

92W...... Secretary’s discretion to treat gainful work outside Australia as gainful work in Australia      245

Subdivision B—Gainful work                                                                             245

92X....... Gainful work—basic rule................................................................ 245

92Y....... Secretary’s discretion to treat activity as gainful work.................... 246

92Z........ Irregular, infrequent and minor absences from a workplace count as gainful work  246

93.......... Management of family financial investments does not count as gainful work          246

93A....... Domestic duties in relation to a person’s place of residence do not count as gainful work       247

93B....... Evidentiary certificate...................................................................... 248

Subdivision C—Record‑keeping requirements                                               250

93C....... Record‑keeping requirements.......................................................... 250

Division 6—Amount of pension bonus                                                             253

93D....... How to calculate the amount of pension bonus............................... 253

93E........ Qualifying bonus periods................................................................ 253

93F........ Overall qualifying period................................................................ 254

93G....... Pension multiple.............................................................................. 254

93H....... Annual pension rate........................................................................ 254

93J........ Amount of pension bonus............................................................... 256

93K....... Top up of pension bonus for increased rate of age pension............ 258

93L........ Top up of pension bonus in specified circumstances...................... 259

Division 11—Preclusion periods                                                                         260

93U....... Disposal preclusion period—disposals before 1 July 2002............ 260

93UA.... Disposal preclusion period—disposals on or after 1 July 2002...... 261

93V....... Compensation preclusion period..................................................... 261

93W...... Carer preclusion period................................................................... 261

Division 12—Pension bonus bereavement payment                                 262

93WA... Qualification for pension bonus bereavement payment................... 262

93WB.... Amount of pension bonus bereavement payment............................ 262

93WC.... Definition of PBBP employment income......................................... 262

Part 2.2B—One‑off payments to the aged and older Australians        264

Division 1—One‑off payment to the aged                                                      264

93X....... One‑off payment to the aged........................................................... 264

Division 2—2006 one‑off payment to older Australians                        265

93Y....... 2006 one‑off payment to older Australians..................................... 265

93Z........ Amount of the one‑off payment...................................................... 266

Division 3—2007 one‑off payment to older Australians                        268

93ZA..... 2007 one‑off payment to older Australians..................................... 268

93ZB..... Amount of the one‑off payment...................................................... 269

Division 4—2008 one‑off payment to older Australians                        270

93ZC..... 2008 one‑off payment to older Australians..................................... 270

93ZD..... Amount of the one‑off payment...................................................... 271

Part 2.3—Disability support pension                                                                     272

Division 1—Qualification for and payability of disability support pension         272

Subdivision A—Qualification                                                                             272

94.......... Qualification for disability support pension.................................... 272

94A....... Qualification for disability support pension—person transferring to that pension    274

95.......... Qualification for disability support pension—permanent blindness 278

Subdivision B—Payability                                                                                   279

98.......... Disability support pension not payable if pension rate nil............... 279

103........ Multiple entitlement exclusion......................................................... 279

103A..... Exclusion of certain participants in ABSTUDY Scheme................ 281

104........ Seasonal workers—preclusion period............................................. 282

Division 5—Rate of disability support pension                                           284

117........ How to work out a person’s disability support pension rate........... 284

118........ Approved program of work supplement......................................... 284

119........ Approved program of work supplement not payable in certain circumstances         284

120........ Effect of participation in an approved program of work for income support payment              285

Division 10—Bereavement payments                                                              286

Subdivision A—Death of partner                                                                       286

146F...... Qualification for payments under this Subdivision......................... 286

146G..... Continued payment of deceased partner’s previous entitlement...... 288

146H..... Lump sum payable in some circumstances...................................... 288

146J...... Adjustment of person’s disability support pension rate.................. 290

146K..... Effect of death of person entitled to payments under this Subdivision 290

146L...... Matters affecting payment of benefits under this Subdivision......... 292

Subdivision C—Death of recipient                                                                     293

146Q..... Death of recipient............................................................................ 293

Part 2.4—Wife pension                                                                                                   294

Division 1A—Time limit on grant of wife pension                                    294

146V..... Wife pension not to be granted after 30 June 1995......................... 294

Division 1—Qualification for and payability of wife pension             295

Subdivision A—Qualification                                                                             295

147........ Qualification for wife pension......................................................... 295

Subdivision B—Payability                                                                                   295

148........ Wife pension not payable if pension rate nil.................................... 295

151........ Multiple entitlement exclusion......................................................... 295

151A..... Exclusion of certain participants in ABSTUDY Scheme................ 297

Division 4—Rate of wife pension                                                                        299

159........ How to work out the rate of wife pension....................................... 299

Division 9—Bereavement payments                                                                 300

Subdivision A—Continuation of wife pension where partner dies            300

186........ Continuation of wife pension for bereavement period..................... 300

187........ Continued wife pension rate............................................................ 300

Subdivision B—Death of pensioner partner                                                    301

188........ Qualification for payments under this Subdivision......................... 301

189........ Continued payment of partner’s pension or allowance.................... 301

190........ Lump sum payable in some circumstances...................................... 302

191........ Effect of death of person entitled to payments under this Subdivision 303

192........ Matters affecting payment of benefits under this Subdivision......... 305

Part 2.5—Carer payment                                                                                              306

Division 1A—Interpretation                                                                                 306

197........ Definitions...................................................................................... 306

Division 1—Qualification for and payability of carer payment        309

Subdivision A—Qualification                                                                             309

197A..... Overview—circumstances in which person is qualified for carer payment              309

197B..... Qualification—child with a severe disability or severe medical condition                309

197C..... Qualification—2 or more children each with a disability or medical condition         311

197D..... Qualification—disabled adult and one or more children each with a disability or medical condition        312

197E...... Qualification—child who has a terminal condition.......................... 313

197F...... Qualification—exchanged care of children...................................... 314

197G..... Qualification—short term or episodic care of children.................... 316

197H..... Qualification—extension of short term or episodic care.................. 317

197J...... Qualification following qualification for short term or episodic care 319

197K..... Remaining qualified for up to 3 months after child turns 16........... 321

198........ Qualification—disabled adult or disabled adult and dependent child 321

198AAAContinuation of qualification when person receiving care
admitted to institution...................................................................... 324

198AA.. Qualification for carer payment—hospitalisation............................ 324

198AB.. Care not required to be in private residence during portability period 327

198AC.. Effect of cessation of care etc. on carer payment............................. 327

198A..... Income test [see Appendix for CPI adjusted figures]...................... 330

198B..... Taxable income............................................................................... 331

198C..... Appropriate tax year........................................................................ 334

198D..... Assets test [see Appendix for CPI adjusted figures]....................... 336

198E...... Working out the value of assets...................................................... 339

198F...... Disposal of assets—care receiver assets test................................... 339

198G..... Amount of disposition—care receiver assets test............................ 340

198H..... Disposal of assets in pre‑pension years—individual higher ADAT score adults     341

198HA.. Disposal of assets in pre‑pension years—profoundly disabled child or disabled children       342

198HB.. Disposal of assets in pre‑pension years—lower ADAT score adult and dependent child        343

198J...... Disposal of assets before 1 July 2002—individual higher ADAT score adults       344

198JA... Disposal of assets before 1 July 2002—profoundly disabled children or disabled children     345

198JB.... Disposal of assets before 1 July 2002—lower ADAT score adult and dependent child          346

198JC.... Disposal of assets in income year—individual higher ADAT score adults              348

198JD... Disposal of assets in 5 year period—individual higher ADAT score adults            349

198JE.... Disposal of assets in income year—sole care children.................... 350

198JF.... Disposal of assets in 5 year period—sole care child....................... 350

198JG... Disposal of assets in income year—lower ADAT score adult and child or children                351

198JH... Disposal of assets in 5 year period—lower ADAT score adult and child or children              353

198K..... Disposal of assets in pre‑pension years—members of couples including higher ADAT score adults     354

198L...... Disposal of assets before 1 July 2002—members of couples including higher ADAT score adults        356

198LA... Disposal of assets in income year—members of couples including higher ADAT score adults              358

198LB... Disposal of assets in 5 year period—members of couples including higher ADAT score adults             360

198M.... Certain dispositions to be disregarded for care receiver assets test.. 361

198MA. Other disposals to be disregarded for care receiver assets test........ 362

198N..... Exemption from care receiver assets test [see Appendix for CPI adjusted figures]  362

198P...... Date of effect of favourable decision under section 198N............... 368

198Q..... Date of effect of adverse decision under section 198N................... 371

Subdivision B—Payability                                                                                   371

199........ Carer payment not payable if payment rate nil................................. 371

201AA.. Newly arrived resident’s waiting period......................................... 371

201AB.. Duration of newly arrived resident’s waiting period....................... 372

202........ Multiple entitlement exclusion......................................................... 373

202A..... Exclusion of certain participants in ABSTUDY Scheme................ 374

203........ Seasonal workers—preclusion period............................................. 375

Division 4—Rate of carer payment                                                                  377

210........ How to work out a person’s carer payment rate.............................. 377

Division 9—Bereavement payments                                                                 378

Subdivision A—Continuation of carer payment                                            378

235........ Continuation of carer payment for bereavement period where person cared for dies                378

236........ Continued carer payment rate.......................................................... 379

236A..... Lump sum payable in some circumstances...................................... 379

236B..... Subdivision not to apply in certain cases involving simultaneous death 380

Subdivision B—Death of partner                                                                       381

237........ Qualification for payments under this Subdivision......................... 381

238........ Continued payment of deceased partner’s previous entitlement...... 383

239........ Lump sum payable in some circumstances...................................... 384

240........ Adjustment of person’s carer payment rate..................................... 385

241........ Effect of death of person entitled to payments under this Subdivision 386

242........ Benefits under this Subdivision...................................................... 387

243........ Subdivision not to apply in certain cases involving simultaneous death 388

Subdivision D—Death of recipient                                                                     389

246........ Death of recipient............................................................................ 389

Part 2.5A—One‑off payments to carers eligible for carer payment   390

Division 1—One‑off payment to carers eligible for carer payment 390

247........ One‑off payment to carers (carer payment related).......................... 390

248........ What is the amount of the payment?................................................ 390

Division 2—2005 one‑off payment to carers eligible for carer payment              391

249........ 2005 one‑off payment to carers (carer payment related).................. 391

250........ What is the amount of the payment?................................................ 391

Division 3—2005 one‑off payment to carers eligible for carer service pension               392

251........ 2005 one‑off payment to carers (carer service pension related)....... 392

252........ What is the amount of the payment?................................................ 392

Division 4—2006 one‑off payment to carers eligible for carer payment              393

253........ 2006 one‑off payment to carers (carer payment related).................. 393

254........ Amount of the one‑off payment...................................................... 393

Division 5—2006 one‑off payment to carers eligible for wife pension 394

255........ 2006 one‑off payment to carers (wife pension related)................... 394

256........ Amount of the one‑off payment...................................................... 394

Division 6—2006 one‑off payment to carers eligible for partner service pension           395

257........ 2006 one‑off payment to carers (partner service pension related)... 395

258........ Amount of the one‑off payment...................................................... 395

Division 7—2006 one‑off payment to carers eligible for carer service pension               396

259........ 2006 one‑off payment to carers (carer service pension related)....... 396

260........ Amount of the one‑off payment...................................................... 396

Division 8—2007 one‑off payment to carers eligible for carer payment              397

261........ 2007 one‑off payment to carers (carer payment related).................. 397

262........ Amount of the one‑off payment...................................................... 397

Division 9—2007 one‑off payment to carers eligible for wife pension 398

263........ 2007 one‑off payment to carers (wife pension related)................... 398

264........ Amount of the one‑off payment...................................................... 398

Division 10—2007 one‑off payment to carers eligible for partner service pension        399

265........ 2007 one‑off payment to carers (partner service pension related)... 399

266........ Amount of the one‑off payment...................................................... 399

Division 11—2007 one‑off payment to carers eligible for carer service pension             400

267........ 2007 one‑off payment to carers (carer service pension related)....... 400

268........ Amount of the one‑off payment...................................................... 400

Division 12—2008 one‑off payment to carers eligible for carer payment           401

269........ 2008 one‑off payment to carers (carer payment related).................. 401

270........ Amount of the one‑off payment...................................................... 401

Division 13—2008 one‑off payment to carers eligible for wife pension                402

271........ 2008 one‑off payment to carers (wife pension related)................... 402

272........ Amount of the one‑off payment...................................................... 402

Division 14—2008 one‑off payment to carers eligible for partner service pension        403

273........ 2008 one‑off payment to carers (partner service pension related)... 403

274........ Amount of the one‑off payment...................................................... 403

Division 15—2008 one‑off payment to carers eligible for carer service pension             404

275........ 2008 one‑off payment to carers (carer service pension related)....... 404

276........ Amount of the one‑off payment...................................................... 404

Part 2.7—Bereavement allowance                                                                           405

Division 1—Qualification for and payability of bereavement allowance             405

Subdivision A—Qualification                                                                             405

315........ Qualification for bereavement allowance......................................... 405

Subdivision B—Payability                                                                                   406

316........ Bereavement allowance not payable if allowance rate nil................ 406

321........ Multiple entitlement exclusion......................................................... 406

321A..... Exclusion of certain participants in ABSTUDY Scheme................ 407

Division 4—Rate of bereavement allowance                                               409

329........ How to work out a person’s bereavement allowance rate............... 409

Division 9—Bereavement payments                                                                 410

Subdivision B—Death of recipient                                                                     410

359........ Death of recipient............................................................................ 410

Part 2.8—Widow B pension                                                                                        411

Division 1—Qualification for and payability of widow B pension    411

Subdivision A—Qualification                                                                             411

362A..... Widow B pension not to be granted in certain cases....................... 411

362........ Qualification for widow B pension................................................. 411

Subdivision B—Payability                                                                                   414

364........ Widow B pension not payable if pension rate nil............................ 414

368........ Multiple entitlement exclusion......................................................... 414

368A..... Exclusion of certain participants in ABSTUDY Scheme................ 415

Division 4—Rate of widow B pension                                                              416

376........ How to work out the rate of widow B pension............................... 416

Division 9—Bereavement payments                                                                 417

Subdivision B—Death of recipient                                                                     417

407........ Death of recipient............................................................................ 417

Part 2.8A—Widow allowance                                                                                    418

Division 1—Time limit on grants of widow allowance                            418

408AA.. Time limit on grants........................................................................ 418

Division 2—Qualification for and payability of widow allowance   419

Subdivision A—Qualification                                                                             419

408BA.. Qualification for widow allowance................................................. 419

408BB... Assurance of support...................................................................... 420

Subdivision B—Payability                                                                                   420

408CA.. Widow allowance not payable if allowance rate nil......................... 420

408CE... Assets test—allowance not payable if assets value limit exceeded [see Appendix for CPI adjusted figures]           421

408CF... Multiple entitlement exclusion......................................................... 421

408CG.. Maximum basic rate and remote area allowance not payable to CDEP Scheme participant      423

408CH.. Seasonal workers............................................................................ 423

Division 5—Rate of widow allowance                                                             425

408FA... How to work out a woman’s widow allowance rate....................... 425

408GI.... CDEP Scheme participant may accumulate widow allowance........ 425

Part 2.10—Parenting payment                                                                                  426

Division 1—Qualification for and payability of parenting payment 426

Subdivision A—Qualification                                                                             426

500........ Qualification for parenting payment................................................ 426

500A..... Participation requirements............................................................... 427

500B..... Qualification—assurance of support............................................... 427

500C..... Qualification affecting member of couple—unemployment due to industrial action 427

500D..... PP child........................................................................................... 428

500E...... Prospective determinations for some recipients............................... 429

Subdivision AA—Parenting payment transitional arrangement               430

500F...... When a person is covered by the parenting payment transitional arrangement         430

500G..... When determinations are taken to be in force.................................. 432

500H..... The effect of cancellation................................................................. 433

Subdivision B—General principles relating to payability                          433

500I....... Parenting payment not payable if payment rate nil.......................... 433

500J...... Situations where payment not payable for failure to comply with certain requirements            434

500Q..... Assets test—payment not payable if assets value limit exceeded [see Appendix for CPI adjusted figures]             434

500S...... Multiple entitlement exclusion......................................................... 436

500V..... Educational schemes exclusion—person member of a couple......... 437

500VA.. Exclusion of certain participants in ABSTUDY Scheme................ 437

500W.... Maximum basic rate and remote area allowance not payable to CDEP Scheme participant who is a member of a couple........................................................................................................ 438

500Z...... Seasonal workers—preclusion period............................................. 438

Division 2—Parenting Payment Employment Pathway Plans            440

501........ Parenting Payment Employment Pathway Plans............................. 440

501A..... Parenting Payment Employment Pathway Plan—terms.................. 440

501B..... Parenting Payment Employment Pathway Plans—requirement to look for work of appropriate number of hours per week................................................................................................ 442

501C..... Parenting Payment Employment Pathway Plans—people with partial capacity to work          443

501D..... Parenting Payment Employment Pathway Plans—requirement to participate in an approved program of work      443

501E...... Parenting Payment Employment Pathway Plans—suspension of plans in cases of domestic violence etc.              445

Division 3—Additional participation requirements                                  446

502........ Secretary may impose additional participation requirements........... 446

502A..... People 55 and over who are engaged in work................................. 449

502B..... Persons engaged in suitable paid work for at least 30 hours per fortnight                450

Division 3A—Participation exemptions                                                          451

502C..... Domestic violence etc...................................................................... 451

502D..... People with disabled children and other circumstances................... 452

502E...... Training camps................................................................................ 454

502F...... Special circumstances...................................................................... 454

502G..... Pre‑natal and post‑natal relief.......................................................... 455

502H..... Temporary incapacity...................................................................... 455

502J...... Time limit for temporary incapacity exemption—Secretary satisfied person can undertake activity         457

502K..... Time limit for temporary incapacity exemption—end of person’s maximum exemption period               457

Division 4—Rate of parenting payment                                                         461

Subdivision A—Rate of parenting payment                                                    461

503........ How to work out a person’s parenting payment rate....................... 461

503A..... Approved program of work supplement......................................... 461

503AA.. Approved program of work supplement not payable in certain circumstances         461

503B..... Training supplement........................................................................ 462

503C..... National Green Jobs Corps supplement.......................................... 462

Subdivision C—Accumulation of parenting payments by CDEP Scheme participants                463

504N..... CDEP Scheme participant may accumulate parenting payment....... 463

Division 9—Bereavement payments                                                                 464

Subdivision A—Continuation of parenting payment after death of child 464

512........ Death of PP child—continuation of qualification for 14 weeks...... 464

Subdivision B—Death of recipient                                                                     464

513........ Death of recipient—recipient not member of a couple..................... 464

513A..... Death of recipient—recipient member of a couple........................... 465

Subdivision C—Death of partner                                                                       465

514........ Surviving partner and deceased partner........................................... 465

514A..... Qualification for payments under this Subdivision......................... 465

514B..... Continued payment of deceased partner’s previous entitlement...... 466

514C..... Lump sum payable in some circumstances...................................... 467

514D..... Adjustment of person’s parenting payment rate.............................. 468

514E...... Effect of death of surviving partner................................................. 469

514F...... Matters affecting payments under this Subdivision......................... 471

Subdivision D—Bereavement payment in respect of a person who was a CDEP Scheme participant     472

514FA... Calculation of bereavement payment in respect of former CDEP Scheme participant              472

Part 2.11—Youth allowance                                                                                        473

Division 1—Qualification for youth allowance                                           473

Subdivision A—Basic qualifications                                                                 473

540........ Qualification for youth allowance—general rule............................. 473

540A..... Qualification for youth allowance—claimants for disability support pension           473

540AA.. Qualification for youth allowance—new apprentices...................... 475

540AB.. Qualification for youth allowance—claimants with medical conditions affecting their capacity to work  475

540B..... Qualification for youth allowance—transferee from social security pension            477

540C..... Qualification for youth allowance may continue to end of payment period              477

Subdivision B—Activity test                                                                                478

541........ Activity test..................................................................................... 478

541A..... Failure to satisfy the activity test..................................................... 480

541B..... Undertaking full‑time study............................................................ 481

541D..... Unsuitable paid work...................................................................... 484

Subdivision C—Exemptions from the activity test                                        487

542........ Situations in which a person is not required to satisfy the activity test 487

542A..... Temporary incapacity exemption..................................................... 487

542B..... Failure to attend interview etc. may result in cessation of temporary incapacity exemption      489

542BA.. Time limit for temporary incapacity exemptions—capacity to undertake activity      490

542C..... Time limit for temporary incapacity exemptions—maximum exemption period       491

542D..... Pre‑natal and post‑natal exemptions................................................ 494

542E...... Remote area exemption................................................................... 495

542F...... Domestic violence or other special family circumstances exemption 496

542FA... Disabled children or other family circumstances exemption............ 497

542FB... New claimants exemption............................................................... 500

542G..... Training camp exemption................................................................ 501

542H..... Special circumstances exemption.................................................... 502

Subdivision D—Youth allowance age                                                               503

543........ Youth allowance age....................................................................... 503

543A..... Minimum age for youth allowance.................................................. 503

543B..... Maximum age for youth allowance................................................. 505

Subdivision E—Youth Allowance Employment Pathway Plans                506

544........ Requirements relating to Youth Allowance Employment Pathway Plans 506

544A..... Youth Allowance Employment Pathway Plans—requirement........ 507

544B..... Youth Allowance Employment Pathway Plans—terms.................. 509

544C..... Youth Allowance Employment Pathway Plans—principal carers... 512

544D..... Youth Allowance Employment Pathway Plans—people with partial capacity to work            512

544DA.. Youth Allowance Employment Pathway Plans—early school leavers 513

544E...... Youth Allowance Employment Pathway Plans—suspension of plans for people with certain exemptions             514

Subdivision G—Miscellaneous                                                                           514

546........ Prospective determinations for some allowance recipients.............. 514

Division 2—Situations in which youth allowance is not payable       516

Subdivision A—Situations in which allowance not payable (general)      516

547........ Youth allowance not payable if allowance rate nil........................... 516

547AA.. Youth allowance not payable if person fails to attend interview etc. in certain circumstances  516

547AB.. Situations where allowance not payable for failure to comply with certain requirements         517

Subdivision AB—Assets test                                                                                 518

547A..... Allowance not payable if assets value limit exceeded...................... 518

547B..... Who is excluded from application of assets test?............................ 518

547C..... Assets value limit [see Appendix for CPI adjusted figures]............ 518

547D..... Value of person’s assets to include value of assets of partner or family members in certain circumstances             519

547E...... Assets of trust in which person benefits......................................... 519

547F...... Exclusion of certain assets that are exempt under the Farm Household Support Act 1992      520

547G..... How business assets are treated...................................................... 520

Subdivision C—Waiting periods                                                                        521

549........ Waiting periods............................................................................... 521

549A..... Liquid assets test waiting period..................................................... 522

549B..... Start of liquid assets test waiting period.......................................... 523

549C..... Length of liquid assets test waiting period...................................... 523

549D..... Newly arrived resident’s waiting period......................................... 524

549E...... Length of newly arrived resident’s waiting period [see Note 2]...... 526

549F...... Effect of being subject to 2 waiting periods.................................... 526

Subdivision D—Situations where allowance not payable because of youth allowance participation failure         526

549G..... Application of Subdivision............................................................. 526

550........ Youth allowance participation failures............................................ 527

550B..... Allowance not payable because of youth allowance participation failure  528

550C..... When the period of non‑payment starts........................................... 530

550D..... When the period of non‑payment ends............................................ 530

Subdivision E—Situations where allowance not payable because of repeated failure 530

550E...... Application of Subdivision............................................................. 530

551........ Allowance not payable because of repeated failure......................... 530

551A..... When the period of non‑payment starts........................................... 531

Subdivision F—Multiple entitlement exclusions                                            531

552........ Multiple entitlement exclusions....................................................... 531

552A..... Person receiving payment under certain schemes............................ 532

552B..... Assurance of support...................................................................... 533

552C..... Maximum basic rate and remote area allowance not payable to CDEP Scheme participant      533

Subdivision G—Employment‑related exclusions                                           534

553........ Employment‑related exclusions....................................................... 534

553A..... Unemployment due to industrial action........................................... 534

553B..... Move to area of lower employment prospects................................. 535

553C..... Seasonal workers............................................................................ 537

Division 5—Rate of youth allowance                                                               539

556........ How to work out a person’s youth allowance rate.......................... 539

556A..... Approved program of work supplement......................................... 539

556B..... National Green Jobs Corps supplement.......................................... 539

559J...... CDEP Scheme participant may accumulate youth allowance.......... 540

Subdivision EA–sections 565F, 565G [see Note 5]                                           540

Division 10—Bereavement payments                                                              541

Subdivision A—Bereavement payments on death of partner                     541

567........ Qualification for payments under this Division............................... 541

567A..... Continued payment of partner’s pension or benefit......................... 542

567B..... Lump sum payable in some circumstances...................................... 542

567C..... Adjustment of person’s youth allowance rate................................. 544

567D..... Effect of death of person entitled to payments under this Division. 544

567E...... Matters affecting payments under this Division.............................. 546

567F...... Calculation of bereavement payment in respect of former CDEP Scheme participant              547

Subdivision B—Continuation of youth allowance rate after death of child 547

567G..... Death of child—continuation of youth allowance rate for 14 weeks 547

Part 2.11A—Austudy payment                                                                                 548

Division 1—Qualification for austudy payment                                         548

Subdivision A—Basic qualifications                                                                 548

568........ Qualification for austudy payment—general rule............................ 548

568AA.. Qualification for austudy payment—new apprentices..................... 548

568A..... Qualification for austudy payment—transferee from social security pension           548

Subdivision B—Activity test                                                                                549

569........ Activity test..................................................................................... 549

569A..... Undertaking qualifying study.......................................................... 549

569B..... Approved course of education or study.......................................... 550

569C..... Full‑time students............................................................................ 550

569D..... Concessional study‑load students................................................... 550

569E...... Normal amount of full‑time study................................................... 552

569F...... First fortnight of classes.................................................................. 553

569G..... Progress rules—secondary students............................................... 553

569H..... Progress rules—tertiary students.................................................... 554

Subdivision C—Austudy age                                                                               560

570........ Austudy age.................................................................................... 560

Division 2—Situations in which austudy payment is not payable     561

Subdivision A—Situation in which austudy payment not payable (general) 561

572........ Austudy payment not payable if payment rate nil............................ 561

572A..... Situations where austudy payment not payable for failure to comply with certain requirements              561

Subdivision B—Assets test                                                                                    561

573........ Austudy payment not payable if assets value limit exceeded........... 561

573A..... Who is excluded from application of assets test.............................. 562

573B..... Assets value limit [see Appendix for CPI adjusted figures]............ 563

573C..... Value of person’s assets to include value of assets of partner......... 563

573D..... Assets of trust in which person benefits......................................... 563

573E...... Exclusion of certain assets that are exempt under the Farm Household Support Act 1992      564

Subdivision D—Waiting periods                                                                        565

575........ Waiting periods............................................................................... 565

575A..... Liquid assets test waiting period..................................................... 565

575B..... Start of liquid assets test waiting period.......................................... 566

575C..... Length of liquid assets test waiting period...................................... 566

575D..... Newly arrived resident’s waiting period......................................... 567

575E...... Length of newly arrived resident’s waiting period.......................... 568

575EA... Seasonal workers—preclusion period............................................. 569

575F...... Effect of being subject to 2 waiting periods.................................... 570

Subdivision E—Situations where austudy payment not payable because of austudy participation failure            570

576........ Austudy participation failures......................................................... 570

576A..... Allowance not payable because of austudy participation failure...... 571

576B..... When the period of non‑payment starts........................................... 572

576C..... When the period of non‑payment ends............................................ 573

Subdivision F—Situations where payment not payable because of repeated failure    573

577........ Payment not payable because of repeated failure............................. 573

577A..... When the period of non‑payment starts........................................... 574

Subdivision G—Multiple entitlement exclusions                                            574

578........ Multiple entitlement exclusions....................................................... 574

578A..... Person receiving payment under certain schemes............................ 575

578B..... Assurance of support...................................................................... 576

Division 5—Rate of austudy payment                                                             577

581........ How to work out a person’s austudy payment rate......................... 577

Division 10—Bereavement payments on death of partner                   578

592........ Qualification for payments under this Division............................... 578

592A..... Continued payment of partner’s pension or benefit......................... 579

592B..... Lump sum payable in some circumstances...................................... 579

592C..... Adjustment of person’s austudy payment rate................................ 581

592D..... Effect of death of person entitled to payments under this Division. 581

592E...... Matters affecting payments under this Division.............................. 583

Part 2.11B—Scholarship payments for students                                            584

Division 1—Student start‑up scholarship payment                                   584

592F...... Qualification for student start‑up scholarship payment................... 584

592G..... Circumstances in which person is not qualified for student start‑up scholarship payment       585

592H..... Amount of student start‑up scholarship payment............................ 586

Division 2—Relocation scholarship payment                                              587

592J...... Qualification for relocation scholarship payment............................ 587

592K..... Circumstances in which person is not qualified for relocation scholarship payment                587

592L...... Amount of relocation scholarship payment..................................... 589

Division 3—Approved scholarship course                                                    591

592M.... Definition........................................................................................ 591

592N..... Approved scholarship course.......................................................... 591

Part 2.12—Newstart allowance                                                                                 592

Division 1—Qualification for and payability of newstart allowance 592

Subdivision A—Basic qualifications                                                                 592

593........ Qualification for newstart allowance............................................... 592

595........ Persons may be treated as unemployed........................................... 596

596........ Unemployment due to industrial action........................................... 597

596A..... Assurance of support...................................................................... 598

598........ Liquid assets test waiting period..................................................... 598

600........ Prospective determinations for some allowance recipients.............. 602

Subdivision B—Activity test                                                                                602

601........ Activity test..................................................................................... 602

602A..... Relief from activity test—persons to whom subsection 614(6) applies 607

602B..... Relief from activity test—domestic violence etc.............................. 607

602C..... Relief from activity test—people with disabled children and other circumstances    609

603........ Relief from activity test—general.................................................... 612

603A..... Relief from activity test—special circumstances.............................. 613

603AAAPre‑natal and post‑natal relief from activity test............................... 614

603AA.. Relief from activity test—people 55 and over who are engaged in work  614

603AB.. Relief from activity test—certain principal carers and people with partial capacity to work      615

Subdivision BA—Exemption from activity test—people temporarily incapacitated for work 615

603BA.. Subdivision not to apply to a person with a pending claim for disability support pension       615

603B..... Interpretation................................................................................... 615

603C..... Incapacitated person not required to satisfy activity test.................. 616

603D..... Time limit for exemption—Secretary satisfied person can undertake activity           617

603F...... Time limit for exemption—end of person’s maximum exemption period 617

Subdivision C—Newstart Employment Pathway Plans                                620

605........ Newstart Employment Pathway Plans—requirement...................... 620

606........ Newstart Employment Pathway Plans—terms................................ 622

607........ Newstart Employment Pathway Plans—principal carers................ 623

607A..... Newstart Employment Pathway Plans—people with partial capacity to work          624

607B..... Newstart Employment Pathway Plans—requirement to participate in an approved program of work      624

607C..... Newstart Employment Pathway Plans—suspension of plans in cases of domestic violence etc.             625

Subdivision D—Situations where allowance not payable (general)          626

608........ Newstart allowance not payable if allowance rate nil...................... 626

611........ Assets test—allowance not payable if assets value limit exceeded [see Appendix for CPI adjusted figures]           626

612........ Value of assets of members of couples........................................... 627

613........ Full‑time students............................................................................ 628

614........ Multiple entitlement exclusion......................................................... 629

614A..... Maximum basic rate and remote area allowance not payable to CDEP Scheme participant      631

615........ Newstart allowance not payable if person fails to attend interview etc. in certain circumstances              631

Subdivision E—Situations where allowance not payable (waiting periods) 632

620........ Ordinary waiting period.................................................................. 632

621........ Duration of ordinary waiting period................................................ 633

623A..... Newly arrived resident’s waiting period......................................... 634

623B..... Duration of newly arrived resident’s waiting period....................... 636

Subdivision G—Situations where allowance not payable (administrative breaches)   636

631........ Situations where allowance not payable for failure to comply with certain requirements         636

Subdivision GA—Activities that do not give rise to employment under certain industrial relations legislation   637

631C..... Activities that do not give rise to employment under certain industrial relations legislation      637

Subdivision H—Other situations where allowance not payable                 637

633........ Seasonal workers............................................................................ 637

634........ Move to area of lower employment prospects................................. 638

Division 4—Rate of newstart allowance                                                        640

643........ How to work out a person’s newstart allowance rate...................... 640

644AAAApproved program of work supplement......................................... 640

644AABApproved program of work supplement not payable in certain
circumstances.................................................................................. 640

644AACTraining supplement........................................................................ 640

645........ National Green Jobs Corps supplement.......................................... 641

653A..... CDEP Scheme participant may accumulate newstart allowance...... 642

Division 9—Bereavement payments                                                                 643

Subdivision AA—Death of partner                                                                    643

660LA... Qualification for payments under this Subdivision......................... 643

660LB... Continued payment of partner’s pension or benefit......................... 644

660LC... Lump sum payable in some circumstances...................................... 644

660LD... Adjustment of a person’s newstart allowance rate.......................... 646

660LE... Effect of death of person entitled to payments under this Subdivision 646

660LF... Matters affecting payments under this Subdivision......................... 648

660LG... Calculation of bereavement payment in respect of former CDEP Scheme participant              648

Subdivision B—Continuation of newstart allowance rate after death of child              649

660M.... Death of child—continuation of newstart allowance rate for 14 weeks 649


An Act to provide for the payment of certain pensions, benefits and allowances, and for related purposes

Chapter 1Introductory

Part 1.1Formal 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 1.2Definitions

  

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).

prohibited relationship has the meaning given by subsections (12) and (13).

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

                    (aa)  both of the following conditions are met:

                              (i)  a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

                             (ii)  the person 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 another person, whether of the same sex or a different 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 de facto 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.

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), subparagraph (2)(aa)(ii) 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, or in a de facto relationship with, 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 or a de facto relationship.

          (3A)  The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto 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 Division 2 of Part 2.11

Youth allowance assets test

1A

section 500Q

Parenting payment assets test

2

sections 549A to 549C

Youth allowance liquid assets test

3

Subdivision B of Division 2 of Part 2.11A

Austudy payment assets test

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 660YCK

Mature age allowance 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 Rate Calculator A

Ordinary income test

13

Module G of Pension Rate Calculator A

Assets test

14

Module F of Pension Rate Calculator D

Ordinary income test

15

Module H of Pension Rate Calculator D

Assets test

16

Module H of Youth Allowance Rate Calculator

Income test

17

Module D of the Austudy Payment Rate Calculator

Income test

18

Module G of Benefit Rate Calculator B

Income test

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 their 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).

Prohibited relationship

           (12)  For the purposes of this Act, a person and his or her partner are within a prohibited relationship if the person is:

                     (a)  an ancestor or a descendant of the partner; or

                     (b)  a brother, sister, half‑brother or half‑sister of the partner.

           (13)  For the purposes of subsection (12), a child who is, or has ever been, an adopted child of a person is taken to be the natural child of that person and the person is taken to be the natural parent of the child.

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.

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

dependent child has the meaning given by subsections (2) to (9).

independent, in Parts 2.11, 2.11B 3.4A, 3.4B, 3.5 and 3.7, has the meaning given in section 1067A.

main supporter of a secondary pupil child has the meaning given by section 5G.

parent means:

                     (a)  (except in Part 2.11 and in the Youth Allowance Rate Calculator in section 1067G):

                              (i)  in relation to a person (the relevant person), other than an adopted child—a natural parent or relationship parent of the relevant person; or

                             (ii)  in relation to an adopted child—an adoptive parent of the child; 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 parent, adoptive parent or relationship 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 parent, adoptive parent or relationship 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).

relationship child has the meaning given by subsection (25).

relationship parent has the meaning given by subsection (25).

secondary pupil child has the meaning given by section 5F.

step‑child: without limiting who is a step‑child of a person for the purposes of this Act, someone who is a child of a partner of the person is the step‑child of the person, if he or she would be the person’s step‑child except that the person is not legally married to the partner.

step‑parent: without limiting who is a step‑parent of a person for the purposes of this Act, someone who is a partner of a parent of the person is the step‑parent of the person, if he or she would be the person’s step‑parent except that he or she is not legally married to the person’s parent.

student child has the meaning given by subsection (1A).

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) or (aa); 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 section 37 a determination in respect of the young person and the member of the couple.

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).

Relationship child and relationship parent

           (25)  If:

                     (a)  someone is a child of a person because of:

                              (i)  the definition of child in subsection (1); or

                             (ii)  paragraph (b) of the definition of child in section 1207A; or

                            (iii)  paragraph (b) of the definition of child in subsection 1209R(5); and

                     (b)  he or she is not a biological or adopted child of the person;

the child is the relationship child of the person and the person is the relationship parent of the child.

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)

             (1)  A person is a relative (other than a parent) of a child if:

                     (a)  the person is not the child’s 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.

             (2)  For the purposes of subparagraph (1)(b)(i), if one person is a relationship child, or a step‑child, of another person, relationships traced to or through the person are to be determined on the basis that the person is related by blood to the other person.

5F  Secondary pupil child

                   A person is a secondary pupil child of another person at a time in a financial year if:

                     (a)  at the time, the person:

                              (i)  has turned 16 but has not turned 19; and

                             (ii)  has not completed the final year of secondary school or an equivalent level of education; and

                            (iii)  is undertaking secondary education or a course of study or instruction that is determined under section 5D of the Student Assistance Act 1973 to be a secondary course; and

                     (b)  the person’s income in the financial year will not be more than $6,403; and

                     (c)  at the time, the person:

                              (i)  lives with the other person; and

                             (ii)  is wholly or substantially dependent on the other person; and

                     (d)  if the person is a member of a couple, the other person is not the person’s partner; and

                     (e)  the other person is claiming or receiving any of the following at the time:

                              (i)  parenting payment;

                             (ii)  youth allowance;

                            (iii)  newstart allowance;

                            (iv)  special benefit.

Note:          The amount in paragraph (b) is indexed annually in line with CPI increases (see sections 1191 to 1194).

5G  Main supporter of secondary pupil child

             (1)  If someone is a secondary pupil child of a person, the person is the main supporter of the secondary pupil child, subject to subsection (2).

             (2)  Subsections 5(18) to (22) (inclusive) and subsection 5(24) apply for the purposes of determining whether a person is the main supporter of a secondary pupil child in the same way as they apply for the purposes of determining whether a person is the principal carer of a child.

Note:          Subsections 5(18) to (20D) (inclusive) are about identifying the one person who is the principal carer of a child. Subsections 5(21), (22) and (24) prevent a person from being the principal carer of a child who has left Australia and has been absent from Australia for more than 13 weeks.

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 No.

Class description

Relevant item in Schedule 1 to Migration Regulations

1.

Burmese in Burma (Special Assistance) (Class AB)

1102

2.

Burmese in Thailand (Special Assistance) (Class AC)

1103

3.

Cambodian (Special Assistance) (Class AE)

1105

4.

Camp Clearance (Migrant) (Class AF)

1106

5.

Citizens of the Former Yugoslavia (Special Assistance) (Class AI)

1109

6.

East Timorese in Portugal, Macau and Mozambique (Special Assistance) (Class AM)

1113

7.

Minorities of Former USSR (Special Assistance) (Class AV)

1122

8.

Refugee and Humanitarian (Migrant) (Class BA)

1127

8A

Sri Lankan (Special Assistance) (Class BF)

1129A

9.

Sudanese (Special Assistance) (Class BD)

1130

10.

Territorial Asylum (Residence) (Class BE)

1131

          (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.

instalment of parental leave pay means an instalment of parental leave pay under the Paid Parental Leave Act 2010.

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;

                     (d)  an instalment of parental leave pay;

                     (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, economic security strategy payment to families, back to school bonus or single income family bonus, 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;

                    (tb)  a payment to the person made by the Commonwealth under the program known as Skills for Sustainability for Australian Apprentices;

                    (tc)  a payment to the person made by the Commonwealth under the program known as Tools for Your Trade (within the program known as the Australian Apprenticeships Incentives Program);

                     (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

                          (via)  a payment, by a foreign country, of an allowance or annuity that is of a similar kind to decoration allowance payable under section 102 of that Act or to Victoria Cross allowance payable under section 103 of that Act; or

                           (vii)  clothing allowance under section 97 of that Act; or

                       (viiaa)  a payment known as a student start‑up scholarship payment, or a relocation scholarship payment, under the scheme referred to in section 117 of the Veterans’ Entitlements Act; or

                       (viiab)  a payment known as a student start‑up scholarship payment, or a relocation scholarship payment, under the scheme referred to in section 258 of the Military Rehabilitation and Compensation Act; or

                         (viia)  veterans supplement under Part VIIA of that Act; or

                         (viib)  seniors supplement 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);

                  (yaa)  a tax bonus (within the meaning of the Tax Bonus for Working Australians Act (No. 2) 2009);

                   (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;

                   (yh)  economic security strategy payment under the Veterans’ Entitlements Act;

                    (yi)  a payment under the scheme determined under Schedule 4 to the Social Security and Other Legislation Amendment (Economic Security Strategy) Act 2008;

                    (yj)  a payment under the scheme determined under Schedule 4 to the Household Stimulus Package Act (No. 2) 2009;

                     (z)  a periodical payment by way of gift or allowance, or a periodical benefit by way of gift or allowance, from a parent, child, brother or sister of the person;

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;

                  (zaa)  an amount received under the scheme known as the Western Australian Cost of Living Rebate Scheme, where the amount is received during the financial year beginning on 1 July 2009, 1 July 2010 or 1 July 2011;

                  (zab)  the value of a benefit obtained by using a card known as the Western Australian Country Age Pension Fuel Card, where the use occurs during the financial year beginning on 1 July 2009, 1 July 2010 or 1 July 2011;

                   (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 allowance; or

                             (ii)  constant attendance allowance; or

                            (iii)  decoration allowance; or

                            (iv)  mobility supplement;

                    (zf)  a payment under the ABSTUDY Scheme;

                  (zfa)  a payment of financial supplement made to the person under a Student Financial Supplement Scheme;

                    (zg)  a payment received by the person for serving, or being summoned to serve, on a jury;

                   (zh)  a payment received by the person for expenses as a witness, other than an expert witness, before a court, tribunal or commission;

                    (zi)  a payment towards the cost of personal care support services for the person, being a payment made under a scheme approved under section 35A;

                   (zia)  the amount or value of a scholarship known as a Commonwealth Trade Learning Scholarship;

                    (zj)  a payment of an approved scholarship awarded on or after 1 September 1990;

Note:       for approved scholarship see subsection 8(1).

                   (zja)  the amount or value of:

                              (i)  a scholarship known as a Commonwealth Education Costs Scholarship; or

                             (ii)  a scholarship known as a Commonwealth Accommodation Scholarship;

                  (zjb)  an amount covered by subsection (8B) (about reductions of amounts payable for enrolment or tuition in certain courses);

                   (zjc)  a payment covered by subsection (8C) (about payments that are made to an educational institution or the Commonwealth to reduce a person’s liability to the educational institution or Commonwealth and that are made by someone other than the person);

                  (zjd)  a payment of a scholarship to a person during a calendar year (other than an excluded payment):

                              (i)  for the person to study, or to undertake research, at an educational institution; or

                             (ii)  for the person’s achievement in studying, or in undertaking research, at an educational institution;

                            to the extent that the payment does not exceed the person’s threshold amount for that year;

Note:       For excluded payment see subsection (8AA). For educational institution see subsection 23(1). For threshold amount see subsection (8AB).

                   (zk)  an amount paid by a buyer under a sale leaseback agreement;

                    (zl)  if a person is a member of an approved exchange trading system—an amount credited to the person’s account for the purposes of the scheme in respect of any goods or services provided by the person to another member.

Note:       For approved exchange trading system see subsections (9) and (10).

                  (zm)  if a person:

                              (i)  is a member of a couple; and

                             (ii)  is receiving a social security benefit;

                            a payment received by the person either directly or indirectly from his or her partner.

                   (zn)  while a person is accruing a liability to pay an accommodation charge—any rent from the person’s principal home that the person, or the person’s partner, earns, derives or receives from another person;

Note 1:    For rent, see subsection 13(2).

Note 2:    Under subsections 11A(8) and (9), the principal home of a person in a care situation may be a place other than the place where the person receives care.

                  (zna)  while a person is liable to pay all or some of an accommodation bond by periodic payments—any rent from the person’s principal home that the person, or the person’s partner, earns, derives or receives from another person;

                   (zo)  a payment under section 217 or 266 of the Military Rehabilitation and Compensation Act to reimburse costs incurred in respect of the provision of goods or services (other than a payment to the person who provided the goods or service);

                   (zp)  if subsection 204(5) of the Military Rehabilitation and Compensation Act applies to a person—an amount per fortnight, worked out under subsection (12) of this section, that would, apart from this paragraph, be income of the person;

Note:       Subsection 204(5) of the Military Rehabilitation and Compensation Act reduces a Special Rate Disability Pension by reference to amounts of Commonwealth superannuation that the person has received or is receiving.

                   (zq)  a payment under the Motor Vehicle Compensation Scheme under section 212 of the Military Rehabilitation and Compensation Act;

                    (zr)  a payment under section 242 of the Military Rehabilitation and Compensation Act (continuing permanent impairment and incapacity etc. payments);

                    (zs)  the value of the benefit provided under the initiative known as the Tools for Your Trade initiative.

       (8AA)  For the purposes of paragraph (8)(zjd), each of the following is an excluded payment:

                     (a)  a payment of a scholarship referred to in paragraph (8)(zia), (zj) or (zja);

                     (b)  a scholarship payment under Part 2.11B;

                     (c)  a scholarship payment under the ABSTUDY Scheme;

                     (d)  a payment known as a student start‑up scholarship payment, or a relocation scholarship payment, under the scheme referred to in section 117 of the Veterans’ Entitlements Act;

                     (e)  a payment known as a student start‑up scholarship payment, or a relocation scholarship payment, under the scheme referred to in section 258 of the Military Rehabilitation and Compensation Act.

       (8AB)  For the purposes of paragraph (8)(zjd), a person’s threshold amount, for a calendar year, means $6,762 less the amount of any payment made to that person during that year that is not income for the purposes of this Act because of that paragraph.

Note:          The dollar amount mentioned in this subsection is indexed annually in line with CPI increases (see sections 1190 to 1194).

Example:    On 15 April 2010 a person is paid a scholarship of $3,000 to study at an educational institution. The threshold amount is $6,762 (as no other payment has been excluded under paragraph (8)(zjd) for 2010). The $3,000 is not income under that paragraph and the threshold amount is reduced to $3,762.

                   On 1 May 2010 the person is paid a scholarship of $5,000 to study at an educational institution. Of the $5,000, $3,762 is not income under that paragraph. The threshold amount is reduced to zero.

                   There can be no further payments excluded under that paragraph for that person for 2010.

          (8A)  For the purposes of the operation of section 5 in determining whether a person is:

                     (a)  a student child; or

                     (b)  a dependent child of another person;

this section has effect as if paragraph (8)(zf) were not included.

          (8B)  This subsection covers the amount of a reduction (by discount, remission or waiver) of an amount that would otherwise be payable by a person:

                     (a)  to an educational institution for enrolment or tuition of the person by the institution in a course that:

                              (i)  is determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act; or

                             (ii)  is a Masters or Doctoral degree course accredited as a higher education course by the authority responsible for accrediting higher education courses in the State or Territory in which the course is conducted or by the institution, if it is permitted by a law of the Commonwealth, a State or a Territory to accredit higher education courses that it conducts; or

                            (iii)  is a course of vocational training; or

                     (b)  to the Commonwealth as a result of the person’s enrolment in, or undertaking of, such a course at an educational institution.

          (8C)  This subsection covers a payment:

                     (a)  that is made to discharge, or to prevent from arising, to any extent:

                              (i)  a person’s actual or anticipated liability to an educational institution for enrolment or tuition of the person by the institution in a course described in paragraph (8B)(a); or

                             (ii)  a person’s actual or anticipated liability to the Commonwealth resulting from the person’s enrolment in, or undertaking of, such a course at an educational institution; and

                     (b)  that is made by someone other than the person; and

                     (c)  that is made to the institution or the Commonwealth; and

                     (d)  that is not made at the direction of the person.

             (9)  An exchange trading system is an arrangement between a number of persons (members) under which each member may obtain goods or services from another member for consideration that is wholly or partly in kind rather than in cash. Each member has, for the purposes of the arrangement, an account:

                     (a)  to which is credited:

                              (i)  the amount representing the value of any goods or services provided by the member to another member; or

                             (ii)  if the goods or services were partly paid for in cash—the amount referred to in subparagraph (i) less the amount so paid in cash; and

                     (b)  to which is debited:

                              (i)  the amount representing the value of any goods or services supplied to the member by another member; or

                             (ii)  if the goods or services were partly paid for in cash—the amount referred to in subparagraph (i) less the amount so paid in cash.

           (10)  An exchange trading system is an approved exchange trading system if the Secretary is satisfied that:

                     (a)  it is a local community‑based system; and

                     (b)  its primary purpose is to help persons maintain their labour skills and keep them in touch with the labour market; and

                     (c)  it is not a system run by a person or organisation for profit.

           (11)  An amount received by a person is an exempt lump sum if:

                     (a)  the amount is not a periodic amount (within the meaning of subsection (11A)); and

                     (b)  the amount is not a leave payment within the meaning of points 1067G‑H20, 1067L‑D16 and 1068‑G7AR; and

                     (c)  the amount is not income from remunerative work undertaken by the person; and

                     (d)  the amount is an amount, or class of amounts, determined by the Secretary to be an exempt lump sum.

Note:          Some examples of the kinds of lump sums that the Secretary may determine to be exempt lump sums include a lottery win or other windfall, a legacy or bequest, or a gift—if it is a one‑off gift.

        (11A)  An amount is a periodic amount if it is:

                     (a)  the amount of one payment in a series of related payments, even if the payments are irregular in time and amount; or

                     (b)  the amount of a payment making up for arrears in such a series.

           (12)  For the purposes of paragraph 8(8)(zp), the amount per fortnight that is not income for the purposes of this Act is:

where:

Special Rate Disability Pension reduction amount means the amount by which the Special Rate Disability Pension (as reduced under subsection 204(3)) is reduced under subsection 204(6) of the Military Rehabilitation and Compensation Act (but not below zero).

9  Financial assets and income streams definitions

             (1)  In this Act, unless the contrary intention appears:

approved deposit fund has the same meaning as in the Income Tax Assessment Act 1997.

asset‑test exempt income stream has the meanings given by sections 9A, 9B and 9BA.

asset‑tested income stream (long term) means an income stream that is an asset‑tested income stream (long term) under section 9D or an income stream that:

                     (a)  is not an asset‑test exempt income stream; and

                     (b)  has, on its commencement day:

                              (i)  a term of more than 5 years; or

                             (ii)  if the person who has acquired the income stream has a life expectancy of 5 years or less—a term equal to or greater than the person’s life expectancy.

asset‑tested income stream (short term) means an income stream that is an asset‑tested income stream (short term) under section 9D or an income stream that is neither:

                     (a)  an asset‑test exempt income stream; nor;

                     (b)  an asset‑tested income stream (long term).

ATO small superannuation account means an account kept in the name of an individual under the Small Superannuation Accounts Act 1995.

commencement day, in relation to an income stream, means the first day of the period to which the first payment under the income stream relates.

deductible amount, in relation to a defined benefit income stream for a year, means the sum of the amounts that are the tax free components (worked out under Subdivision 307‑C of the Income Tax Assessment Act 1997 or, if applicable, section 307‑125 of the Income Tax (Transitional Provisions) Act 1997) of the payments received from the defined benefit income stream during the year.

deferred annuity means an annuity, within the meaning of section 10 of the Superannuation Industry (Supervision) Act 1993, that is not presently payable.

defined benefit income stream has the meaning given by subsection (1F).

deprived asset has the meaning given by subsection (4).

family law affected income stream has the meaning given by section 9C.

financial asset means:

                     (a)  a financial investment; or

                     (b)  a deprived asset.

Note:          For deprived asset see subsection 9(4).

financial investment means:

                     (a)  available money; or

                     (b)  deposit money; or

                     (c)  a managed investment; or

                     (d)  a listed security; or

                     (e)  a loan that has not been repaid in full; or

                      (f)  an unlisted public security; or

                     (g)  gold, silver or platinum bullion; or

                     (h)  an asset‑tested income stream (short term);

but does not include an investment in an FHSA (within the meaning of the First Home Saver Accounts Act 2008).

friendly society means:

                     (a)  a body that is a friendly society for the purposes of the Life Insurance Act 1995; or

                     (b)  a body that is registered or incorporated as a friendly society under a law of a State or Territory; or

                     (c)  a body that is permitted, by a law of a State or Territory, to assume or use the expression friendly society; or

                     (d)  a body that, immediately before the date that is the transfer date for the purposes of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999, was registered or incorporated as a friendly society under a law of a State or Territory; or

                     (e)  a body that had, before 13 December 1987, been approved for the purpose of the definition of friendly society in subsection 115(1) of the 1947 Act.

governing rules, in relation to an income stream, means any trust instrument, other document or legislation, or combination of them, governing the establishment and operation of the income stream.

income stream means:

                     (a)  an income stream arising under arrangements that are regulated by the Superannuation Industry (Supervision) Act 1993; or

                     (b)  an income stream arising under a public sector superannuation scheme (within the meaning of that Act); or

                     (c)  an income stream arising under a retirement savings account; or

                     (d)  an income stream provided as life insurance business by a life company registered under section 21 of the Life Insurance Act 1995; or

                      (f)  an income stream designated in writing by the Secretary for the purposes of this definition, having regard to the guidelines determined under subsection (1E); or

                    (fa)  a family law affected income stream;

but does not include any of the following:

                     (g)  available money;

                     (h)  deposit money;

                      (i)  a managed investment;

                      (j)  a listed security;

                     (k)  a loan that has not been repaid in full;

                      (l)  an unlisted public security;

                    (m)  gold, silver or platinum bullion.

investment:

                     (a)  in relation to a superannuation fund, approved deposit fund or deferred annuity—has the meaning given by subsection (9); or

                     (b)  in relation to an ATO small superannuation account—has the meaning given by subsection (9A); or

                     (c)  in relation to an investment in an FHSA (within the meaning of the First Home Saver Accounts Act 2008)—has the meaning given by subsection (9B).

investor, in relation to an ATO small superannuation account, means the person in whose name the account is kept.

life expectancy has the same meaning as life expectation factor has in section 27H of the Income Tax Assessment Act.

listed security means:

                     (a)  a share in a company; or

                     (b)  another security;

listed on a stock exchange.

managed investment has the meaning given by subsections (1A), (1B) and (1C).

original family law affected income stream has the meaning given by section 9C.

pensioner couple means a couple, one or both of the members of which are receiving a social security pension, a service pension or income support supplement.

primary FLA income stream has the meaning given by section 9C.

public unit trust means a unit trust that:

                     (a)  except where paragraph (b) applies—was, in relation to the unit trust’s last year of income, a public unit trust for the purposes of Division 6B of Part III of the Income Tax Assessment Act; or

                     (b)  where the first year of income of the unit trust has not yet finished—has, at some time since the trust was established, satisfied at least one of the paragraphs of subsection 102G(1) of the Income Tax Assessment Act.

purchase price, in relation to an income stream, means the sum of the payments made to purchase the income stream (including amounts paid by way of employer and employee contributions) less any commuted amounts.

relevant number, in relation to an income stream, means:

                     (a)  if the income stream is payable for a fixed number of years—that number; or

                     (b)  if the income stream is payable during the lifetime of a person and no longer—the number of years of the person’s life expectancy; or

                     (c)  if the income stream:

                              (i)  is jointly owned by a person and his or her partner and is payable for the lifetime of the person or the partner; or

                             (ii)  is payable during the lifetime of a person and then for the lifetime of a reversionary beneficiary;

                            the number of years of the longer of the relevant life expectancies; or

                     (d)  in any other case—the number that the Secretary considers appropriate having regard to the number of years in the total period during which the income stream will be, or may reasonably be expected to be, payable.

residual capital value, in relation to an income stream, means the capital amount payable on the termination of the income stream.

Note:          An account‑based income stream does not have a residual capital value (see subsection (10) of this section).

retirement savings account has the meaning that it has in the Retirement Savings Accounts Act 1997.

return:

                     (a)  in relation to an ATO small superannuation account—means so much of the balance of the account as is attributable to interest; or

                     (b)  in relation to any other investment in the nature of superannuation—means any increase, whether of a capital or income nature and whether or not distributed, in the value or amount of the investment; or

                     (c)  in relation to an investment in an FHSA (within the meaning of the First Home Saver Accounts Act 2008)—means any increase, whether of a capital or income nature and whether or not distributed, in the value or amount of the investment.

secondary FLA income stream has the meaning given by section 9C.

superannuation benefit, in relation to a person, means:

                     (a)  a benefit arising directly or indirectly from amounts contributed (whether by the person or by any other person) to a superannuation fund in respect of the person; or

                     (b)  a payment under Part 7 of the Small Superannuation Accounts Act 1995, where the payment is in respect of an ATO small superannuation account kept in the name of the person.

superannuation contributions surcharge has the meaning that it has in the Superannuation Contributions Tax (Assessment and Collection) Act 1997.

superannuation fund means:

                     (a)  a fund that is or has been a complying superannuation fund within the meaning of section 45 of the Superannuation Industry (Supervision) Act 1993 in relation to any tax year; or

                     (b)  an Australian superannuation fund (within the meaning of the Income Tax Assessment Act 1997) that is not a complying superannuation fund mentioned in paragraph (a) in relation to any tax year; or

                     (c)  a scheme for the payment of benefits upon retirement or death that is constituted by or under a law of the Commonwealth or of a State or Territory; or

                     (d)  an RSA within the meaning of the Retirement Savings Accounts Act 1997; or

                     (e)  any of the following funds (unless the fund is a foreign superannuation fund within the meaning of the Income Tax Assessment Act 1997):

                              (i)  a fund to which paragraph 23(jaa), or section 23FC, 121CC or 121DAB, of the Income Tax Assessment Act 1936 (as in force at any time before the commencement of section 1 of the Taxation Laws Amendment Act (No. 2) 1989) has applied in relation to any tax year;

                             (ii)  a fund to which paragraph 23(ja), or section 23F or 23FB, of the Income Tax Assessment Act 1936 (as in force at any time before the commencement of paragraph (a) of the definition of superannuation fund in former subsection 27A(1) of the Income Tax Assessment Act 1936) has applied in relation to the tax year that started on 1 July 1985 or an earlier tax year;

                            (iii)  a fund to which section 79 of the Income Tax Assessment Act 1936 (as in force at any time before 25 June 1984) has applied in relation to the tax year that started on 1 July 1983 or an earlier tax year.

unlisted public security means:

                     (a)  a share in a public company; or

                     (b)  another security;

that is not listed on a stock exchange.

          (1A)  Subject to subsections (1B) and (1C), an investment is a managed investment for the purposes of this Act if:

                     (a)  the money or property invested is paid by the investor directly or indirectly to a body corporate or into a trust fund; and

                     (b)  the assets that represent the money or property invested (the invested assets) are not held in the names of investors; and

                     (c)  the investor does not have effective control over the management of the invested assets; and

                     (d)  the investor has a legally enforceable right to share in any distribution of income or profits derived from the invested assets.

          (1B)  Without limiting the generality of subsection (1A) but subject to subsection (1C), the following are managed investments for the purposes of this Act:

                     (a)  an investment in a public unit trust;

                     (b)  an investment in an insurance bond;

                     (c)  an investment with a friendly society;

                     (d)  an investment in a superannuation fund;

Note:       see paragraph (1C)(a) for superannuation investments held before pension age is reached.

                     (e)  an investment in an approved deposit fund;

Note:       see paragraph (1C)(b) for investments in approved deposit funds held before pension age is reached.

                      (f)  an investment in a deferred annuity;

Note:       see paragraph (1C)(c) for deferred annuities held before pension age is reached.

                     (g)  an investment in an ATO small superannuation account.

Note:       See paragraph (1C)(ca) for investments in ATO small superannuation accounts held before pension age is reached.

          (1C)  The following are not managed investments for the purposes of this Act:

                     (a)  an investment in a superannuation fund if the investor has not yet reached pension age;

                     (b)  an investment in an approved deposit fund if the investor has not yet reached pension age;

                     (c)  an investment in a deferred annuity if the investor has not yet reached pension age;

                    (ca)  an investment in an ATO small superannuation account if the investor has not yet reached pension age;

                   (cb)  an investment in an FHSA (within the meaning of the First Home Saver Accounts Act 2008);

                     (d)  deposit money;

                     (e)  a loan;

                      (f)  an asset‑test exempt income stream;

                     (g)  an asset‑tested income stream (long term);

                     (h)  an asset‑tested income stream (short term).

Note 2:       for deposit money see subsection 8(1).

Note 3:       For provisions relating to when a loan is taken to be made see subsection (2).

Note 4:       Asset‑test exempt income streams are dealt with under sections 1098 to 1099AA.

Note 5:       Asset‑tested income streams (long term) are dealt with under sections 1099B to 1099DAA.

          (1D)  To avoid doubt, neither an accommodation bond nor an accommodation bond balance is a financial investment for the purposes of this Act.

          (1E)  The Secretary may, by legislative instrument, determine guidelines to be complied with when designating an income stream for the purposes of the definition of income stream in subsection (1).

           (1F)  An income stream is a defined benefit income stream if:

                     (a)  under the Superannuation Industry (Supervision) Regulations 1994, the income stream is taken to be a pension for the purposes of the Superannuation Industry (Supervision) Act 1993; and

                     (b)  except in the case of an income stream arising under a superannuation fund established before 20 September 1998—the income stream is provided under rules that meet the standards of subregulation 1.06(2) of the Superannuation Industry (Supervision) Regulations 1994; and

                   (ba)  in the case of an income stream arising under a superannuation fund established before 20 September 1998—the income stream is provided under rules that meet the standards determined, by legislative instrument, by the Minister; and

                     (c)  in any case—the income stream is attributable to a defined benefit interest within the meaning of the Superannuation Industry (Supervision) Regulations 1994 (for this purpose, disregard subparagraph 1.03AA(1)(b)(ii) of those regulations).

             (4)  For the purposes of this Act, an asset is a deprived asset if:

                     (a)  a person has disposed of the asset; and

                     (b)  the value of the asset is included in the value of the person’s assets by section 1124A, 1125, 1125A, 1126, 1126AA, 1126AB, 1126AC or 1126AD or an amount is included in the value of the person’s assets in respect of the disposal by section 1126E (so far as that section relates to section 1126AA, 1126AB, 1126AC or 1126AD).

             (9)  For the purposes of this Act, a person has an investment in a superannuation fund, approved deposit fund or deferred annuity if the person has benefits in the fund or under the annuity (whether the benefits are attributable to amounts paid by the person or someone else).

          (9A)  For the purposes of this Act:

                     (a)  a person has an investment in an ATO small superannuation account if:

                              (i)  the account is kept in the name of the person; and

                             (ii)  the balance of the account exceeds nil; and

                     (b)  the amount or value of that investment equals the balance of the account.

          (9B)  For the purposes of this Act, a person has an investment in an FHSA (within the meaning of the First Home Saver Accounts Act 2008) if the person has benefits in the FHSA (whether the benefits are attributable to amounts paid by the person or someone else).

           (10)  To avoid doubt, for the purposes of this Act, an account‑based income stream does not have a residual capital value.

9A  Meaning of asset‑test exempt income stream—lifetime income streams

General requirements

             (1)  An income stream provided to a person is an asset‑test exempt income stream for the purposes of this Act if:

                    (aa)  subject to subsection (1AA), the income stream’s commencement day happens before 20 September 2007; and

                     (a)  it is an income stream arising under a contract, or governing rules, that meet the requirements of subsection (2) and the Secretary has not made a determination under subsection (4) in respect of the income stream; and

                     (b)  subject to subsections (1B) and (1C), the Secretary is satisfied that in relation to an income stream, provided by a class of provider specified by the Secretary for the purposes of this paragraph, there is in force a current actuarial certificate that states that in the actuary’s opinion there is a high probability that the provider of the income stream will be able to pay the income stream as required under the contract or governing rules; and

                     (c)  the Secretary is satisfied that the requirements of subsection (2) are being given effect to from the day the income stream commences to be paid.

Determination under subsection (5)

          (1A)  An income stream provided to a person is an asset‑test exempt income stream for the purposes of this Act if the Secretary has made a determination under subsection (5) in respect of the income stream.

Defined benefit income streams

       (1AA)  Paragraph (1)(aa) does not apply if the income stream is a defined benefit income stream.

Guidelines relating to actuarial certificates

          (1B)  The Secretary may determine, in writing, guidelines to be complied with when determining whether an actuarial certificate is in force and what constitutes a high probability that the provider of the income stream will be able to pay the income stream as required under the contract or governing rules.

          (1C)  Paragraph (1)(b) does not apply if, for a period beginning when an actuarial certificate referred to in that paragraph ceases to be in force and ending not more than 26 weeks later, such an actuarial certificate is not in force.

Requirements of contract/governing rules for provision of income stream

             (2)  A contract, or the governing rules, for the provision of an income stream to a person meet the requirements of this subsection if the contract or governing rules specify:

                     (a)  that payments under the income stream are to be made at least annually throughout the life of the person and, if there is a reversionary beneficiary:

                              (i)  throughout the reversionary beneficiary’s life; or

                             (ii)  if the reversionary beneficiary is a child of the person or of a former reversionary beneficiary under the income stream—at least until he or she turns 16; or

                            (iii)  if the child referred to in subparagraph (ii) is a full‑time student who has turned 16—at least until the end of his or her full‑time studies or until he or she turns 25, whichever occurs sooner; and

                     (b)  the total amount of the payments that may be made under the income stream in the first year after the commencement day of the income stream (not taking commuted amounts into account); and

                     (c)  that the total amount of the payments that may be made under the income stream in any other year (not taking commuted amounts into account) may not fall below the total amount of the payments made under the income stream in the immediately preceding year (the previous total), and may not exceed the previous total:

                              (i)  if subparagraph (ii) does not apply—by more than 5% of the previous total; or

                             (ii)  if the index number for the second last quarter before the day on which the first of those payments is to be made (recent index number) exceeds the index number for the same quarter in the immediately preceding year (base index number) by more than 4% of the base index number—by more than such percentage of the previous total as is worked out under the formula:

                     (d)  if the income stream is purchased by or for the primary beneficiary—that the first payment under the income stream relates to the period commencing on the day of that purchase; and

                     (e)  if the income stream is not purchased, but acquired, by or for the primary beneficiary—that the first payment under the income stream relates to the period commencing on the day of that acquisition; and

                      (f)  if the income stream is not a defined benefit income stream—that the amount paid as the purchase price for the income stream is wholly converted into income; and

                     (g)  that the income stream has no residual capital value; and

                     (h)  that the income stream cannot be commuted except:

                              (i)  if the income stream is a non‑commutation funded income stream and the commutation is made within 6 months after the commencement day of the income stream; or

                             (ii)  if the commutation is made to the benefit of a reversionary beneficiary or of the person’s estate, on the death of the person within the life expectancy period for the income stream; or

                            (iii)  if the payment resulting from the commutation is transferred directly to the purchase of another income stream that is an asset‑test exempt income stream; or

                            (iv)  to the extent necessary to cover any superannuation contributions surcharge relating to the income stream; or

                          (iva)  to the extent necessary to give effect to an entitlement of the person’s partner or former partner under a payment split under Part VIIIB of the Family Law Act 1975; or

                          (ivb)  to the extent necessary to give effect to an order under Part VIIIAA of the Family Law Act 1975; or

                             (v)  to the extent necessary to pay a hardship amount; and

                      (i)  that the income stream cannot be transferred to a person except:

                              (i)  on the death of the primary beneficiary, to a reversionary beneficiary; or

                             (ii)  on the death of a reversionary beneficiary, to another reversionary beneficiary; and

                      (j)  that neither the capital value of the income stream, nor the income from it, can be used as security for a borrowing; and

                     (k)  that, if the income stream reverts, it must not have a reversionary component greater than the benefit that was payable immediately before the reversion; and

                      (l)  that, if the income stream is commuted, the commuted amount must not be greater than the benefit that was payable immediately before the commutation.

          (2A)  A contract, or the governing rules, for the provision to a person of an income stream that meets all of the requirements of subsection (2), except the requirement of paragraph (2)(c), are taken to meet the requirements of subsection (2) if the contract or governing rules specify that any provision included in the contract or governing rules in accordance with paragraph (2)(c) does not apply in any year in which:

                     (a)  the person ceases to receive income under an income stream jointly and begins to receive income under a single income stream; and

                     (b)  the total amount received in the year under the single income stream is less than the total amount received by the person in the previous year but is not nil.

Matters not required of income stream

             (3)  For the purpose of determining whether an income stream meets the requirements of subsection (2), it is immaterial that:

                     (a)  if the primary beneficiary dies within the life expectancy period for the income stream, a surviving reversionary beneficiary may be paid an amount equal to the total of the payments that the primary beneficiary would (if he or she had not died) have received from the day of the death until the end of that period; and

                     (b)  if:

                              (i)  the primary beneficiary dies within the life expectancy period for the income stream; and

                             (ii)  there is no surviving reversionary beneficiary;

                            an amount, not exceeding the difference between:

                            (iii)  the sum of the amounts that would have been so payable to the primary beneficiary in that period; and

                            (iv)  the sum of the amounts paid to the primary beneficiary;

                            is payable to the primary beneficiary’s estate, and

                     (c)  if:

                              (i)  the primary beneficiary dies within the life expectancy period for the income stream; and

                             (ii)  there is a surviving reversionary beneficiary who also dies within that period;

                            there is payable to the reversionary beneficiary’s estate an amount determined as described in paragraph (b) as if that paragraph applied to the reversionary beneficiary.

Determination that income stream not asset‑test exempt

             (4)  The Secretary may determine that an income stream that meets the requirements of subsection (2) is not an asset‑test exempt income stream if the Secretary is satisfied that the person who has purchased the income stream has commuted an asset‑test exempt income stream within 6 months after its commencement day on at least 3 occasions since the person first received a social security payment.

Determination that income stream is asset‑test exempt

             (5)  The Secretary may determine, in writing, that an income stream is an asset‑test exempt income stream for the purposes of this Act. In making the determination, the Secretary is to have regard to the guidelines (if any) determined under subsection (6).

          (5A)  To avoid doubt, a determination under subsection (5) may be made in respect of an income stream regardless of the income stream’s commencement day.

          (5B)  A determination under subsection (5) is not a legislative instrument.

Guidelines to be complied with in making determination

             (6)  The Secretary may, by legislative instrument, determine guidelines to be complied with when making a determination under subsection (5).

             (7)  In this section:

hardship amount, in relation to a person, means an amount determined by the Secretary for the purposes of this definition if:

                     (a)  the person applies in writing to the Secretary to be allowed to commute the whole or part of an income stream because of extreme financial hardship; and

                     (b)  the Secretary is satisfied that:

                              (i)  the person’s circumstances are exceptional and could not be reasonably foreseen at the time the person purchased the income stream; and

                             (ii)  the person has insufficient liquid assets or other assets (excluding the person’s principal home) that could be realised to avoid the extreme financial hardship; and

                            (iii)  that amount is required to meet unavoidable expenditure.

life expectancy period, for an income stream, means:

                     (a)  in a case where:

                              (i)  there was only one primary beneficiary on the commencement day; and

                             (ii)  the primary beneficiary has decided not to round up his or her life expectancy for the purposes of this definition;

                            the period starting on the income stream’s commencement day, and equal to the shorter of:

                            (iii)  the primary beneficiary’s life expectancy on the commencement day; and

                            (iv)  20 years; or

                     (b)  in a case where:

                              (i)  there was only one primary beneficiary on the commencement day; and

                             (ii)  paragraph (a) does not apply;

                            the period starting on the income stream’s commencement day, and equal to the shorter of:

                            (iii)  the primary beneficiary’s life expectancy (rounded up, if not consisting of a whole number of years, to the next whole number) on the commencement day; and

                            (iv)  20 years; or

                     (c)  in a case where:

                              (i)  there were 2 primary beneficiaries on the commencement day; and

                             (ii)  those primary beneficiaries have decided not to round up their life expectancies for the purposes of this definition;

                            the period starting on the income stream’s commencement day, and equal to the shorter of:

                            (iii)  the greater of the life expectancies, on the commencement day, of the primary beneficiaries; and

                            (iv)  20 years; or

                     (d)  in a case where:

                              (i)  there were 2 primary beneficiaries on the commencement day; and

                             (ii)  paragraph (c) does not apply;

                            the period starting on the income stream’s commencement day, and equal to the shorter of:

                            (iii)  the greater of the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of the primary beneficiaries; and

                            (iv)  20 years.

liquid assets, in relation to a person, means the person’s cash and readily realisable assets, and includes:

                     (a)  the person’s shares and debentures in a public company within the meaning of the Corporations Law; and

                     (b)  managed investments; and

                     (c)  insurance policies that can be surrendered for money; and

                     (d)  amounts deposited with, or lent to, a bank or other financial institution by the person (whether or not the amount can be withdrawn or repaid immediately); and

                     (e)  amounts due, and able to be paid, to the person by, or on behalf of, a former employer of the person.

non‑commutation funded income stream means an income stream that has not been purchased by transferring directly to the purchase of the income stream a payment resulting from the commutation of another asset‑test exempt income stream.

unavoidable expenditure, in relation to a person, means one or more of the following:

                     (a)  essential medical expenses of the person, or the person’s partner, to the extent that the expenses are not covered by health insurance or other contracts or arrangements;

                     (b)  the cost of:

                              (i)  replacing the person’s principal home; or

                             (ii)  essential repairs to the person’s principal home;

                            to the extent that the cost of the replacement or repairs is not covered by an insurance policy;

                     (c)  expenditure to buy replacement essential household goods because of the loss of those goods to the extent that the cost of replacement is not covered by an insurance policy.

9B  Meaning of asset‑test exempt income stream—life expectancy income streams

             (1)  An income stream provided to a person is also an asset‑test exempt income stream for the purposes of this Act if:

                     (a)  the following criteria are satisfied:

                              (i)  the income stream’s commencement day happens before 20 September 2007;

                             (ii)  subsection (1A) applies; or

                     (b)  subsection (1B) applies.

          (1A)  This subsection applies if:

                    (aa)  the person to whom the income stream is being provided is:

                              (i)  the primary beneficiary; or

                             (ii)  the primary beneficiary’s reversionary partner (if any) on the day of the primary beneficiary’s death; and

                     (a)  the income stream is an income stream arising under a contract, or governing rules, that meet the requirements of subsection (2) and the Secretary has not made a determination under subsection (3) in respect of the income stream; and

                     (b)  subject to subsection (1C), the Secretary is satisfied that, in relation to an income stream provided by a class of provider specified by the Secretary for the purposes of this paragraph, there is in force a current actuarial certificate that states that in the actuary’s opinion there is a high probability that the provider of the income stream will be able to pay the income stream as required under the contract or governing rules; and

                     (c)  the Secretary is satisfied that the requirements of subsection (2) have been given effect to from the day the income stream commenced to be paid; and

                     (d)  in the case of an income stream acquired before 20 September 2004 that is provided to a primary beneficiary’s reversionary beneficiary—the remaining term (in years) of the income stream is equal to the life expectancy (in years) of the primary beneficiary’s reversionary beneficiary.

          (1B)  This subsection applies if the Secretary has made a determination under subsection (4) in respect of the income stream.

          (1C)  Paragraph (1A)(b) does not apply if, for a period beginning when an actuarial certificate referred to in that paragraph ceases to be in force and ending not more than 26 weeks later, such an actuarial certificate is not in force.

          (1D)  The Secretary may determine, in writing, guidelines to be complied with when determining whether an actuarial certificate is in force and what constitutes a high probability that the provider of the income stream will be able to pay the income stream as required under the contract or governing rules.

Requirements of contract/governing rules for provision of income stream

             (2)  A contract, or the governing rules, for the provision of an income stream to a person meets the requirements of this subsection if the contract or governing rules specify:

                     (a)  the income stream’s term, which must comply with subsection (2B), (2C) or (2E); and

                    (aa)  that payments under the income stream are to be made at least annually during the income stream’s term; and

                     (b)  the total amount of the payments that may be made under the income stream in the first year after the commencement day of the income stream (not taking commuted amounts into account); and

                     (c)  that the total amount of the payments that may be made under the income stream in any other year (not taking commuted amounts into account) may not fall below the total amount of the payments made under the income stream in the immediately preceding year (the previous total), and may not exceed the previous total:

                              (i)  if subparagraph (ii) does not apply—by more than 5% of the previous total; or

                             (ii)  if the index number for the second last quarter before the day on which the first of those payments is to be made (recent index number) exceeds the index number for the same quarter in the immediately preceding year (base index number) by more than 4% of the base index number—by more than such percentage of the previous total as is worked out under the formula:

                     (d)  if the income stream is purchased by or for the primary beneficiary—that the first payment under the income stream relates to the period commencing on the day of that purchase; and

                     (e)  if the income stream is not purchased, but acquired, by or for the primary beneficiary—that the first payment under the income stream relates to the period commencing on the day of that acquisition; and

                      (f)  if the income stream is not a defined benefit income stream—that the amount paid as the purchase price for the income stream is wholly converted into income; and

                     (g)  that the income stream has no residual capital value; and

                     (h)  that the income stream cannot be commuted except:

                              (i)  if the income stream is a non‑commutation funded income stream and the commutation is made within 6 months after the commencement day of the income stream; or

                             (ii)  if the payment resulting from the commutation is transferred directly to the purchase of another income stream that is an asset‑test exempt income stream; or

                            (iii)  if the primary beneficiary’s reversionary partner (if any) on the day of the primary beneficiary’s death survives the primary beneficiary—on or after the partner’s death; or

                          (iiia)  if subparagraph (iii) does not apply—on or after the primary beneficiary’s death; or

                            (iv)  to the extent necessary to cover any superannuation contributions surcharge relating to the income stream; or

                          (iva)  to the extent necessary to give effect to an entitlement of the person’s partner or former partner under a payment split under Part VIIIB of the Family Law Act 1975; or

                          (ivb)  to the extent necessary to give effect to an order under Part VIIIAA of the Family Law Act 1975; or

                             (v)  to the extent necessary to pay a hardship amount; and

                      (i)  that the income stream cannot be transferred except on death; and

                      (j)  that neither the capital value of the income stream, nor the income from it, can be used as security for a borrowing; and

                     (k)  that, if the income stream reverts, it must not have a reversionary component greater than the benefit that was payable immediately before the reversion; and

                      (l)  that, if the income stream is commuted, the commuted amount must not be greater than the benefit that was payable immediately before the commutation.

          (2A)  A contract, or the governing rules, for the provision to a person of an income stream that meets all of the requirements of subsection (2), except the requirement of paragraph (2)(c), are taken to meet the requirements of subsection (2) if the contract or governing rules specify that any provision included in the contract or governing rules in accordance with paragraph (2)(c) does not apply in any year in which:

                     (a)  the person ceases to receive income under an income stream jointly and begins to receive income under a single income stream; and

                     (b)  the total amount received in the year under the single income stream is less than the total amount received by the person in the previous year but is not nil.

Term of the income stream

          (2B)  If, on an income stream’s commencement day, there is only one primary beneficiary, the income stream’s term complies with this subsection if it is a period of whole years that:

                     (a)  starts on the income stream’s commencement day; and

                     (b)  is at least as long as the primary beneficiary’s life expectancy (rounded up, if not consisting of a whole number of years, to the next whole number) on the commencement day; and

                     (c)  is at most as long as the greater of:

                              (i)  what would be the primary beneficiary’s life expectancy (rounded up, if not consisting of a whole number of years, to the next whole number) on the commencement day if the primary beneficiary were 5 years younger; and

                             (ii)  the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the primary beneficiary reaches age 100 (assuming that the primary beneficiary lives until then).

          (2C)  If, on an income stream’s commencement day, there is only one primary beneficiary, the income stream’s term complies with this subsection if it is a period of whole years that:

                     (a)  starts on the income stream’s commencement day; and

                     (b)  is at least as long as the greater of the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of:

                              (i)  the primary beneficiary; and

                             (ii)  the primary beneficiary’s reversionary partner on that day; and

                     (c)  is at most as long as the period worked out under subsection (2D).

          (2D)  For the purposes of paragraph (2C)(c), the period is the greater of:

                     (a)  the greater of what would be the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of:

                              (i)  the primary beneficiary, if the primary beneficiary were 5 years younger; and

                             (ii)  the primary beneficiary’s reversionary partner on that day, if the partner were 5 years younger; and

                     (b)  the greater of:

                              (i)  the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the primary beneficiary reaches age 100 (assuming that the primary beneficiary lives until then); and

                             (ii)  the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the primary beneficiary’s reversionary partner on the commencement day reaches age 100 (assuming that the partner lives until then).

          (2E)  If, on an income stream’s commencement day, there are 2 primary beneficiaries (the first primary beneficiary and the second primary beneficiary), the income stream’s term complies with this subsection if it is a period of whole years that:

                     (a)  starts on the income stream’s commencement day; and

                     (b)  is at least as long as the lesser of the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of:

                              (i)  the first primary beneficiary; and

                             (ii)  the second primary beneficiary; and

                     (c)  is at most as long as the period worked out under subsection (2F).

           (2F)  For the purposes of paragraph (2E)(c), the period is the greater of:

                     (a)  the greater of what would be the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of:

                              (i)  the first primary beneficiary, if the first primary beneficiary were 5 years younger; and

                             (ii)  the second primary beneficiary, if the second primary beneficiary were 5 years younger; and

                     (b)  the greater of:

                              (i)  the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the first primary beneficiary reaches age 100 (assuming that the first primary beneficiary lives until then); and

                             (ii)  the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the second primary beneficiary reaches age 100 (assuming that the second primary beneficiary lives until then).

Determination that income stream not asset‑test exempt

             (3)  The Secretary may determine that an income stream that meets the requirements of subsection (2) is not an asset‑test exempt income stream if the Secretary is satisfied that the person who has purchased the income stream has commuted an asset‑test exempt income stream within 6 months after its commencement day on at least 3 occasions since the person first received a social security payment.

Determination that income stream is asset‑test exempt

             (4)  The Secretary may determine, in writing, that an income stream is an asset‑test exempt income stream for the purposes of this Act. In making the determination, the Secretary is to have regard to the guidelines (if any) determined under subsection (5).

          (4A)  To avoid doubt, a determination under subsection (4) may be made in respect of an income stream regardless of the income stream’s commencement day.

          (4B)  A determination under subsection (4) is not a legislative instrument.

Guidelines to be complied with in making determination

             (5)  The Secretary may, by legislative instrument, determine guidelines to be complied with when making a determination under subsection (4).

             (6)  In this section:

hardship amount has the same meaning as in section 9A.

non‑commutation funded income stream means an income stream that has not been purchased by transferring directly to the purchase of the income stream a payment resulting from the commutation of another asset‑test exempt income stream.

reversionary partner, in relation to the primary beneficiary of an income stream and a particular day, means another person who, on that day:

                     (a)  is a member of a couple with the primary beneficiary; and

                     (b)  is the person to whom the income stream will revert on the primary beneficiary’s death.

9BA  Meaning of asset‑test exempt income stream—market‑linked income streams

General requirements

             (1)  An income stream provided to a person is also an asset‑test exempt income stream for the purposes of this Act if:

                     (a)  all of the following criteria are satisfied:

                              (i)  the income stream’s commencement day happens during the period from 20 September 2004 to 19 September 2007 (both dates inclusive);

                             (ii)  the person to whom the income stream is being provided is the primary beneficiary or the primary beneficiary’s reversionary partner (if any) on the day of the primary beneficiary’s death;

                            (iii)  the income stream is an income stream arising under a contract, or governing rules, that meets the requirements of subsection (2);

                            (iv)  the Secretary has not made a determination under subsection (10) in respect of the income stream;

                             (v)  the Secretary is satisfied that the requirements of subsection (2) have been given effect to from the day the income stream commenced to be paid; or

                     (b)  the Secretary has made a determination under subsection (11) in respect of the income stream.

Requirements of contract/governing rules for provision of income stream

             (2)  A contract, or the governing rules, for the provision of an income stream to a person meets the requirements of this subsection if the contract or governing rules specify:

                     (a)  the income stream’s term, which must comply with subsection (3) or (4); and

                     (b)  obligations for the making of payments under the income stream that satisfy the requirements of subsections (5) to (9); and

                     (c)  if the income stream is purchased by or for the primary beneficiary—that the first payment under the income stream relates to the period commencing on the day of that purchase; and

                     (d)  if the income stream is not purchased, but acquired, by or for the primary beneficiary—that the first payment under the income stream relates to the period commencing on the day of that acquisition; and

                     (e)  that the income stream has no residual capital value; and

                      (f)  that the income stream cannot be commuted except:

                              (i)  if the income stream is a non‑commutation funded income stream and the commutation is made within 6 months after the commencement day of the income stream; or

                             (ii)  if the payment resulting from the commutation is transferred directly to the purchase of another income stream that is an asset‑test exempt income stream; or

                            (iii)  if the primary beneficiary’s reversionary partner (if any) on the day of the primary beneficiary’s death survives the primary beneficiary—on or after the partner’s death; or

                            (iv)  if subparagraph (iii) does not apply—on or after the primary beneficiary’s death; or

                             (v)  to the extent necessary to cover any superannuation contributions surcharge relating to the income stream; or

                            (vi)  to the extent necessary to give effect to an entitlement of the person’s partner or former partner under a payment split under Part VIIIB of the Family Law Act 1975; or

                           (vii)  to the extent necessary to pay a hardship amount; and

                     (g)  that the income stream cannot be transferred except on death; and

                     (h)  that neither the capital value of the income stream, nor the income from it, can be used as security for a borrowing; and

                      (i)  that, if the income stream reverts, it must not have a reversionary component greater than the account balance immediately before the reversion; and

                      (j)  that, if the income stream is commuted, the commuted amount must not be greater than the account balance immediately before the commutation.

Term of the income stream

             (3)  An income stream’s term complies with this subsection if it is a period of whole years that:

                     (a)  starts on the income stream’s commencement day; and

                     (b)  is at least as long as the primary beneficiary’s life expectancy (rounded up, if not consisting of a whole number of years, to the next whole number) on the commencement day; and

                     (c)  is at most as long as the greater of:

                              (i)  what would be the primary beneficiary’s life expectancy (rounded up, if not consisting of a whole number of years, to the next whole number) on the commencement day if the primary beneficiary were 5 years younger; and

                             (ii)  the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the primary beneficiary reaches age 100 (assuming that the primary beneficiary lives until then).

             (4)  An income stream’s term complies with this subsection if it is a period of whole years that:

                     (a)  starts on the income stream’s commencement day; and

                     (b)  is at least as long as the greater of the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of:

                              (i)  the primary beneficiary; and

                             (ii)  the primary beneficiary’s reversionary partner on that day; and

                     (c)  is at most as long as the period worked out under subsection (4A).

          (4A)  For the purposes of paragraph (4)(c), the period is the greater of:

                     (a)  the greater of what would be the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of:

                              (i)  the primary beneficiary, if the primary beneficiary were 5 years younger; and

                             (ii)  the primary beneficiary’s reversionary partner on that day, if the partner were 5 years younger; and

                     (b)  the greater of:

                              (i)  the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the primary beneficiary reaches age 100 (assuming that the primary beneficiary lives until then); and

                             (ii)  the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the primary beneficiary’s reversionary partner on the commencement day reaches age 100 (assuming that the partner lives until then).

Total amount payable in each financial year—general rule

             (5)  For each financial year wholly or partly within the income stream’s term, the total amount of the payments to be made under the income stream must not be less than 90%, nor greater than 110%, of the amount worked out under the formula:

where:

account balance means:

                     (a)  if the financial year includes the income stream’s commencement day—the opening account balance for the income stream; or

                     (b)  otherwise—the account balance for the income stream at the start of the financial year.

PF means the payment factor for the income stream for the financial year, worked out under principles determined, by legislative instrument, by the Secretary.

Other rules about payments under the income stream

             (6)  If the income stream’s commencement day is not a 1 July, a total amount worked out under subsection (5) for the financial year starting on the preceding 1 July must be reduced on a pro‑rata basis by reference to the number of days in the financial year that are on and after the commencement day.

             (7)  If:

                     (a)  the income stream’s commencement day happens in June; and

                     (b)  no payment is made under the income stream for the financial year in which the commencement day happens;

subsections (5) and (6) do not apply to the income stream for that financial year.

             (8)  If the amount (the test amount) of a payment to be made under the income stream on a day in a financial year:

                     (a)  is worked out by reference to a total amount worked out under subsection (5) (and subsection (6), if applicable) for the financial year; and

                     (b)  exceeds the income stream’s account balance on that day;

then:

                     (c)  the account balance (if any) must be paid instead of the test amount; and

                     (d)  that total amount described in paragraph (a) must be reduced by the amount of the excess.

             (9)  If the income stream has a positive account balance at the end of its term, a payment equal to that account balance must be made within 28 days after the end of the term.

Determination that income stream not asset‑test exempt

           (10)  The Secretary may determine that an income stream that meets the requirements of subsection (2) is not an asset‑test exempt income stream if the Secretary is satisfied that:

                     (a)  the primary beneficiary has commuted an asset‑test exempt income stream on at least 3 occasions since the person first received a social security payment; and

                     (b)  on at least 3 of those occasions, the commutation happened within 6 months after the commencement day of the income stream concerned.

Determination that income stream is asset‑test exempt

           (11)  The Secretary may determine, in writing, that an income stream is an asset‑test exempt income stream for the purposes of this Act. In making the determination, the Secretary must have regard to the guidelines (if any) determined under subsection (12).

        (11A)  To avoid doubt, a determination under subsection (11) may be made in respect of an income stream regardless of the income stream’s commencement day.

        (11B)  A determination under subsection (11) is not a legislative instrument.

Guidelines to be complied with in making determination

           (12)  The Secretary may determine, by legislative instrument, guidelines to be complied with when making a determination under subsection (11).

Definitions

           (14)  In this section:

hardship amount has the same meaning as in section 9A.

non‑commutation funded income stream means an income stream that has not been purchased by transferring directly to the purchase of the income stream a payment resulting from the commutation of another asset‑test exempt income stream.

reversionary partner, in relation to the primary beneficiary of an income stream and a particular day, means another person who, on that day:

                     (a)  is a member of a couple with the primary beneficiary; and

                     (b)  is the person to whom the income stream will revert on the primary beneficiary’s death.

9C  Family law affected income streams

                   If:

                     (a)  an income stream is acquired or purchased (the original family law affected income stream) by a person (the member); and

                     (b)  the member’s partner or former partner (the non‑member) becomes entitled to be paid some or all of that income stream under:

                              (i)  a payment split under Part VIIIB of the Family Law Act 1975; or

                             (ii)  an order under Part VIIIAA of the Family Law Act 1975;

then so much (if any) of the income stream paid to the non‑member as a series of ongoing payments (secondary FLA income stream) and the remainder (if any) of the income stream paid to the member as such a series of payments (primary FLA income stream) are each family law affected income streams.

9D  Asset‑tested status of secondary FLA income streams

If there is a primary FLA income stream

             (1)  If a primary FLA income stream is, or would be if the income stream were assessed for the purposes of this Act:

                     (a)  an asset‑tested income stream (long term); or

                     (b)  an asset‑tested income stream (short term);

then a secondary FLA income stream to which it is related is also to be treated as if it were assessed as an income stream of that kind.

If there is no primary FLA income stream

             (2)  If:

                     (a)  there is no primary FLA income stream in relation to a secondary FLA income stream; and

                     (b)  had there been a primary FLA income stream in relation to that secondary FLA income stream it would have been assessed for the purposes of this Act as either an asset‑tested income stream (long term) or an asset‑tested income stream (short term);

then the secondary FLA income stream is to be treated as if it were assessed as an income stream of that kind.

10  Maintenance income definitions

                   In this Act, unless the contrary intention appears, the expressions disability expenses maintenance, maintenance and maintenance income have the same respective meanings as in the Family Assistance Act.

10A  Definitions for Seniors Health Card provisions

             (1)  Some of the definitions in this section are the same as definitions in the Fringe Benefits Tax Assessment Act 1986. Most of the other definitions in this section are based on definitions in that Act.

             (2)  In this section and in Part 3.9 and Part 3.12A, unless the contrary intention appears:

arm’s length loan means a loan where the parties to the loan are dealing with each other at arm’s length in relation to the loan.

arm’s length transaction means a transaction where the parties to the transaction are dealing with each other at arm’s length in relation to the transaction.

arrangement means:

                     (a)  any agreement, arrangement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable, or intended to be enforceable, by legal proceedings; and

                     (b)  any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

assessable fringe benefit means a fringe benefit that is:

                     (a)  a car benefit (see section 1157C); or

                     (b)  a school fees benefit (see section 1157E); or

                     (c)  health insurance benefit (see section 1157F); or

                     (d)  a loan benefit (see section 1157G); or

                     (e)  a housing benefit (see section 1157I);or

                      (f)  an expense benefit (see section 1157JA); or

                     (g)  a financial investment benefit (see section 1157JC);

but does not include a car benefit, loan benefit, housing benefit or expense benefit that is exempt.

Note:          For exempt benefits see sections 1157D (car benefits), 1157H (loan benefits), 1157J (housing benefits) and 1157JB (expense benefits).

associate has the same meaning as in the Fringe Benefits Tax Assessment Act 1986.

Note:          Subsection 136(1) of the Fringe Benefits Tax Assessment Act adopts the definition of associate in section 318 of the Income Tax Assessment Act. Section 159 of the Fringe Benefits Tax Assessment Act modifies the way in which the income tax definition applies and also extends that definition in other ways.

Australian Parliament means:

                     (a)  the Parliament of the Commonwealth of Australia; or

                     (b)  the Parliament of a State; or

                     (c)  the Legislative Assembly for the Australian Capital Territory; or

                     (d)  the Legislative Assembly of the Northern Territory of Australia.

Note:          See paragraph (d) of the definition of current employee.

car means a motor vehicle that is a road vehicle designed to carry a load of less than 1 tonne or fewer than 9 passengers but does not include a motor cycle or similar vehicle.

car benefit has the meaning given by section 1157C.

car fringe benefit means a fringe benefit that is a car benefit.

census population, in relation to an urban centre, means the census count on an actual location basis of the population of that urban centre specified in the results of the Census of Population and Housing taken by the Australian Statistician on 30 June 1981, being the results published by the Australian Statistician in the document entitled “Persons and Dwellings in Local Government Areas and Urban Centres”.

current employee means:

                     (a)  a person who is an employee within the ordinary meaning of that word; and

                     (b)  a person who holds or performs the duties of an appointment, office or position under the Constitution or under a law of the Commonwealth, a State or a Territory; and

                     (c)  a person who is otherwise in the service of the Commonwealth, a State or a Territory (including service as a member of the Defence Force or as a member of a police force); and

                     (d)  a member of an Australian Parliament.

current employer means a person who pays or is liable to pay any salary or wages to an employee, and includes:

                     (a)  in the case of an unincorporated body of persons other than a partnership—the manager or other principal officer of that body; and

                     (b)  in the case of a partnership—each partner; and

                     (c)  a government body.

disadvantaged person means a person who is intellectually, psychiatrically or physically handicapped.

dwelling has the meaning given by subsection (7).

eligible urban area means:

                     (a)  an area that:

                              (i)  is situated in an area described in Schedule 2 to the Income Tax Assessment Act; and

                             (ii)  is an urban centre with a census population of 28,000 or more; or

                     (b)  any other area that is an urban centre with a census population of 14,000 or more.

Note:          See paragraph (c) of the definition of special housing location in subsection (5).

employee means:

                     (a)  a current employee; or

                     (b)  a future employee; or

                     (c)  a former employee.

employer means:

                     (a)  a current employer; or

                     (b)  a future employer; or

                     (c)  a former employer.

employment, in relation to a person, means the holding of any office or appointment, the performance of any functions or duties, the engaging in of any work, or the doing of any acts or things that results, will result or has resulted in the person being treated as an employee.

expense benefit has the meaning given by section 1157JA.

expense fringe benefit means a fringe benefit that is an expense benefit.

financial investment benefit has the meaning given by section 1157JC.

financial investment fringe benefit means a fringe benefit that is a financial investment benefit.

foreign income, in relation to a person, means:

                     (a)  an income amount earned, derived or received by the person from a source outside Australia for the person’s own use or benefit; or

                     (b)  a periodical payment by way of gift or allowance from a source outside Australia; or

                     (c)  a periodical benefit by way of gift or allowance from a source outside Australia.

Note 1:       For income amount see subsection 8(1).

Note 2:       For earned, derived or received see subsection 8(2).

Note 3:       This definition does not make use of the definition of income in subsection 8(1) and, as a result, the exclusions provided for by subsections 8(4), (5) and (8) do not apply to foreign income.

former employee means a person who has been a current employee.

former employer means a person who has been a current employer.

fringe benefit means a benefit that is provided to an employee or to an associate of the employee by:

                     (a)  the employer of the employee; or

                     (b)  an associate of the employer; or

                     (c)  a person (the arranger) other than the employer or an associate of the employer under an arrangement between:

                              (i)  the employer or an associate of the employer; and

                             (ii)  the arranger or another person;

and that is provided in respect of the employment of the employee.

future employee means a person who will become a current employee.

future employer means a person who will become a current employer.

government body means the Commonwealth, a State, a Territory or an authority of the Commonwealth or a State or Territory.

Note:          See paragraph (c) of the definition of current employer.

health insurance benefit has the meaning given by section 1157F.

health insurance fringe benefit means a fringe benefit that is a health insurance benefit.

housing benefit has the meaning given by section 1157I.

housing fringe benefit means a fringe benefit that is a housing benefit.

housing loan has the meaning given by subsection (9).

housing right, in relation to a person, means a lease or licence granted to the person to occupy or use a unit of accommodation, in so far as that lease or licence subsists at a time when the unit of accommodation is the person’s usual place of residence.

in respect of, in relation to the employment of an employee, includes by reason of, by virtue of, or for or in relation directly or indirectly to, that employment.

Note:          See definition of fringe benefit.

lease includes a sub‑lease.

loan includes:

                     (a)  an advance of money; and

                     (b)  the provision of credit or any other form of financial accommodation; and

                     (c)  the payment of an amount for, on account of, on behalf of or at the request of a person where there is an obligation (whether expressed or implied) to repay the amount; and

                     (d)  a transaction (whatever its terms or form) which in substance effects a loan of money.

loan benefit has the meaning given by section 1157G.

loan fringe benefit means a fringe benefit that is a loan benefit.

mature person means a person who has reached the age of 60 years.

metropolitan location has the meaning given by subsection (3).

non‑arm’s length arrangement means an arrangement other than an arm’s length arrangement.

non‑metropolitan location has the meaning given by subsection (4).

obligation, in relation to the payment or repayment of an amount, includes an obligation that is not enforceable by legal proceedings.

place of residence, in relation to a person, means:

                     (a)  a place at which the person resides; or

                     (b)  a place at which the person has sleeping accommodation;

whether on a permanent or temporary basis and whether or not on a shared basis.

private use, in relation to a car and in relation to an employee or an associate of an employee, means any use of the car by the employee or associate that is not exclusively within the employee’s employment.

provide, in relation to a benefit, includes allow, confer, give, grant or perform.

provider, in relation to a benefit, means the person who provides the benefit.

recipient, in relation to a benefit, means the person to whom the benefit is provided.

salary or wages means salary, wages, commission, bonuses or allowances paid (whether at piece‑work rates or otherwise) to an employee as such.

school means a school, college or other educational institution that provides primary or secondary level education.

school fees benefit has the meaning given by section 1157E.

school fees fringe benefit means a fringe benefit that is a school fees benefit.

special housing location has the meaning given by subsections (5) and (6).

stratum unit has the meaning given by subsection (8).

surface route means a route other than an air route.

target foreign income means foreign income that is not:

                     (a)  taxable income; or

                     (b)  received in the form of a fringe benefit.

taxi means a motor vehicle that is licensed to operate as a taxi.

unit of accommodation includes:

                     (a)  a house, flat or home unit; and

                     (b)  accommodation in a house, flat or home unit; and

                     (c)  accommodation in a hotel, hostel, motel or guesthouse; and

                     (d)  accommodation in a bunkhouse or any living quarters; and

                     (e)  accommodation in a ship, vessel or floating structure; and

                      (f)  a caravan or other mobile home.

urban centre means an area that is described as an urban centre or bounded locality in the results of the Census of Population and Housing taken by the Australian Statistician on 30 June 1981 and that were published by the Australian Statistician in the document entitled “Persons and Dwellings in Local Government Areas and Urban Centres”.

work‑related travel, in relation to an employee, means:

                     (a)  travel by the employee between:

                              (i)  the employee’s place of residence; and

                             (ii)  the employee’s place of employment or any other place from which or at which the employee performs duties of his or her employment; or

                     (b)  travel by the employee that is incidental to travel in the course of performing the duties of his or her employment.

Metropolitan location

             (3)  The following cities are metropolitan locations:

                     (a)  Adelaide;

                     (b)  Brisbane;

                     (c)  Canberra;

                     (d)  Darwin;

                     (e)  Hobart;

                      (f)  Melbourne;

                     (g)  Perth;

                     (h)  Sydney.

Non‑metropolitan location

             (4)  A unit of accommodation is in a non‑metropolitan location if the unit of accommodation:

                     (a)  is in Australia; and

                     (b)  is not in a metropolitan location; and

                     (c)  is not in a special housing location.

Special housing location

             (5)  A unit of accommodation is in a special housing location if the unit of accommodation is at a location that is in Australia and one of the following paragraphs applies to the unit of accommodation:

                     (a)  the unit of accommodation is at a location that is in an area that:

                              (i)  is described in Schedule 2 to the Income Tax Assessment Act; and

                             (ii)  is an urban centre with a census population of less than 28,000;

                     (b)  the unit of accommodation is at a location that is in an area that:

                              (i)  is not described in Schedule 2 to the Income Tax Assessment Act; and

                             (ii)  is an urban centre with a census population of less than 14,000;

                     (c)  at the date of commencement of this section, the unit of accommodation is at a location that is:

                              (i)  40 kilometres or more, by the shortest practicable surface route, from the centre point of an eligible urban area with a census population of less than 130,000; or

                             (ii)  100 kilometres or more, by the shortest practicable surface route, from the centre point of an eligible urban area with a census population of more than 130,000.

             (6)  For the purposes of paragraph (5)(c), the distance, by the shortest practicable surface route, between a location (the tested location) and the centre point of an eligible urban area is:

                     (a)  if there is only one location within the eligible urban area from which distances between the eligible urban area and other places are usually measured—the distance, by the shortest practicable surface route, between the tested location and that location; and

                     (b)  if there are 2 or more locations within the eligible urban area from which distances between parts of the eligible urban area and other places are usually measured—the distance, by the shortest practicable surface route, between the tested location and the location that is the principal location of those parts.

             (7)  A unit of accommodation is a dwelling if:

                     (a)  the unit of accommodation is constituted by, or contained in, a building; and

                     (b)  the unit consists, in whole or in substantial part, of residential accommodation.

             (8)  A unit is a stratum unit in relation to a dwelling if:

                     (a)  the unit is a unit on a unit plan registered under a law of a State or Territory that provides for the registration of titles of a kind known as unit titles or strata titles; and

                     (b)  the unit comprises:

                              (i)  a part of a building that contains the dwelling and consists of a flat or home unit; or

                             (ii)  a part of a parcel of land and the building containing the dwelling is constructed on that part.

Housing loan

             (9)  A loan is taken to be a housing loan if:

                     (a)  the loan is made to, or used by, a person (whether in his or her own right or jointly with his or her partner) wholly:

                              (i)  to enable the person to acquire a prescribed interest in land on which a dwelling or a building containing a dwelling was subsequently to be constructed; or

                             (ii)  to enable the person to acquire a prescribed interest in land and construct, or complete the construction of, a dwelling or a building containing a dwelling on the land; or

                            (iii)  to enable the person to construct, or complete the construction of, a dwelling or a building containing a dwelling on land in which the person held a prescribed interest; or

                            (iv)  to enable the person to acquire a prescribed interest in land on which there was a dwelling or a building containing a dwelling; or

                             (v)  to enable the person to acquire a prescribed interest in a stratum unit in relation to a dwelling; or

                            (vi)  to enable the person to extend a building that:

                                        (A)  is a dwelling or contains a dwelling; and

                                        (B)  is constructed on land in which the person held a prescribed interest;

                                   by adding a room or part of a room to the building or the part of the building containing the dwelling, as the case may be; or

                           (vii)  in a case where the person held a prescribed interest in a stratum unit in relation to a dwelling—to enable the person to extend the dwelling by adding a room or part of a room to the dwelling; or

                          (viii)  to enable the person to repay a loan that was made to, and used by, the person wholly for a purpose mentioned in subparagraphs (i) to (vii); and

                     (b)  at the time the loan was made, the dwelling was used or proposed to be used as the person’s usual place of residence.

Note:          For prescribed interest see subsections (10) to (14).

Freehold interest

           (10)  If:

                     (a)  a person; or

                     (b)  2 or more persons as joint tenants or tenants in common;

acquire, hold or held an estate in fee simple in land or in a stratum unit, the person or those persons are taken to acquire or hold, or to have held, a prescribed interest in that land or stratum unit.

Leasehold interest

           (11)  If:

                     (a)  a person acquires, holds or held an interest in land or in a stratum unit as lessee or licensee under a lease or licence; and

                     (b)  the Secretary is satisfied that the lease or licence gives or gave reasonable security of tenure to the lessee or licensee, for a period of, or for periods aggregating, 10 years or more;

the person is taken to acquire or hold, or to have held, a prescribed interest in that land or stratum unit.

Instalment contract

           (12)  If:

                     (a)  a person acquires, holds or held interest in land or in a stratum unit as purchaser of an estate in fee simple in the land or in the stratum unit under an agreement; and

                     (b)  the agreement provides or provided for payment of the purchase price, or a part of the purchase price, to be made at a future time or by instalments;

the person is taken to acquire or hold, or to have held, a prescribed interest in that land or stratum unit.

Right to acquire leasehold

           (13)  If:

                     (a)  a person acquires, holds or held an interest in land or in a stratum unit as purchaser of a right to be granted a lease of the land or of the stratum unit under an agreement; and

                     (b)  the agreement provides or provided for payment of the purchase price, or a part of the purchase price, for the lease to be made at a future time or by instalments; and

                     (c)  the Secretary is satisfied that the lease will give reasonable security of tenure, to the lessee for a period of, or for periods aggregating, 10 years or more;

the person is taken to acquire or hold, or to have held, a prescribed interest in that land or stratum unit.

Two or more persons acquiring or holding interest under subsection (11), (12) or (13)

           (14)  If:

                     (a)  2 or more persons acquire, hold or held an interest referred to in paragraph (11)(a), (12)(a) or (13)(a) in land or in a stratum unit as joint tenants or tenants in common; and

                     (b)  paragraph (11)(b) or (12)(b) or paragraphs (13)(b) and (c) are satisfied;

those persons are taken to acquire or hold, or to have held, a prescribed interest in that land or stratum unit.

10B  Family actual means test definitions

             (1)  This section has effect for the purposes of Module G of the Youth Allowance Rate Calculator at the end of section 1067G.

             (2)  Unless the contrary intention appears:

actual means has the meaning given by point 1067G‑G8.

AIC scheme means the Commonwealth scheme known as the Assistance for Isolated Children Scheme.

appropriate tax year has the meaning given by point 1067G‑G4.

base tax year has the same meaning as in point 1067G‑F5.

business includes:

                     (a)  the carrying on of primary production; and

                     (b)  the provision of professional services; and

                     (c)  the earning of income as a rentier;

but does not include employment (whether or not the employment is remunerated by wages or salary).

claimant/recipient has the meaning given by point 1067G‑G7.

combined parental income has the meaning given by point 1067G‑F10.

designated parent has the meaning given by subsection (3).

family actual means free area has the meaning given by point 1067G‑G14.

income assistance has the meaning given by subsection (4).

insolvent under administration has the same meaning as in the Corporations Act 2001.

interest in a trust:

                     (a)  includes:

                              (i)  the interest of a settlor in property subject to the trust; and

                             (ii)  a power of appointment under the trust; and

                            (iii)  a power to rescind or vary a provision of, or to rescind or vary the effect of the exercise of a power under, the trust; and

                            (iv)  an interest that is conditional, contingent or deferred; but

                     (b)  does not include:

                              (i)  the interest of a person as an agent or creditor of the trustee; or

                             (ii)  the interest of a person as a person employed by the trustee.

liquid assets means assets that, under subsection 14A(1), are liquid assets for Parts 2.11, 2.11A, 2.12 and 2.14.

relevant person has the meaning given by point 1067G‑G7.

savings has the meaning given by subsection (5).

secondary course means a course that is determined, under section 5D of the Student Assistance Act 1973, to be a secondary course for the purposes of that Act.

secondary student means a person who is receiving youth allowance and is undertaking full‑time study in respect of a secondary course.

total net investment loss has the same meaning as in the Income Tax Assessment Act 1997.

trust does not include:

                     (a)  a trust in relation to an account held in a bank only for the benefit of a dependent child of the trustee; or

                     (b)  a trust under which property of the estate of a deceased person, or of a person who is an insolvent under administration, is distributed; or

                     (c)  a trust in relation to a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 that is not an excluded fund within the meaning of that Act; or

                    (ca)  an FHSA trust (within the meaning of the First Home Saver Accounts Act 2008); or

                     (d)  a public unit trust in which units are held by 50 or more persons who are not family members of the trustee, or are offered for subscription or purchase by the public; or

                     (e)  the trust constituted by a trust account that the trustee is required by a law to establish; or

                      (f)  a charitable trust; or

                     (g)  a trust created by operation of law.

unlisted public company means a public company that is not listed on a stock exchange.

             (3)  A parent of a person (the person concerned) is a designated parent for a youth allowance payment period if:

                     (a)  within 10 years before 1 January in the calendar year in which the youth allowance payment period ends, the parent first entered Australia under a permanent visa or entry permit within the meaning of the Migration Act 1958 for the grant of which a criterion or requirement was that the parent demonstrate skills in business; or

                     (b)  the parent has an interest (the value of which is $2,500 or more) in assets outside Australia and its external territories; or

                     (c)  in the base tax year, the parent had an interest in:

                              (i)  a proprietary company; or

                             (ii)  an unlisted public company; or

                            (iii)  a trust; or

                     (d)  in the base tax year, the parent derived income of $2,500 or more from a source outside Australia and its external territories (except Norfolk Island) that does not consist only of income from a pension or similar payment, and was either:

                              (i)  ordinary income; or

                             (ii)  an amount included in the person concerned’s combined parental income; or

                     (e)  the parent derived income from salary or wages in the base tax year and has claimed, or will claim, a tax deduction for a business loss (whether for that year or a previous year) that does not consist only of a total net investment loss; or

                      (f)  in the base tax year, the parent was a member of a partnership; or

                     (g)  in the base tax year, the parent:

                              (i)  worked for gain or reward otherwise than under a contract of employment or apprenticeship, whether or not the parent employed one or more other persons; but

                             (ii)  was not, in so working, wholly or mainly engaged in a primary production business owned by him or her.

Note:          For parent see subsection 5(1), paragraph (b) of the definition of parent.

             (4)  A payment received by a person is income assistance if it is:

                     (a)  a youth allowance received by a person who is undertaking full‑time study; or

                     (b)  an austudy payment; or

                     (c)  a payment under this Act, the Family Assistance Act or the Veterans’ Entitlements Act 1986, that is exempt from income tax under Subdivision 52‑A, 52‑B or 52‑C of the Income Tax Assessment Act 1997; or

                    (ca)  a payment under the Military Rehabilitation and Compensation Act that is exempt from income tax under Subdivision 52‑CA of the Income Tax Assessment Act 1997; or

                   (cb)  a payment under the Australian Participants in British Nuclear Tests (Treatment) Act 2006 that is exempt from income tax under Subdivision 52‑CB of the Income Tax Assessment Act 1997; or

                     (d)  a payment under:

                              (i)  a Student Financial Supplement Scheme; or

                             (ii)  the scheme known as the ABSTUDY scheme; or

                            (iii)  the AIC scheme; or

                     (e)  an AUSTUDY allowance; or

                      (f)  a payment under a scholarship; or

                     (g)  a payment by a State or Territory, or a State or Territory authority, to assist the primary, secondary or tertiary education of a student.

             (5)  The savings of a person include the following amounts:

                     (a)  the person’s share in any profit retained by a company of which the person is a director, or shareholder, who has a substantial influence over whether company profit is distributed to:

                              (i)  the person or a family member of the person; or

                             (ii)  another company, or a partnership or trust, in which the person or a family member of the person has an interest;

                     (b)  the person’s share in any profit retained by a partnership of which the person is a member who has a substantial influence over whether partnership profit is distributed to:

                              (i)  the person or a family member of the person; or

                             (ii)  another partnership, or a company or trust, in which the person or a family member of the person has an interest;

                     (c)  any undistributed profit of a trust that is attributable to the person;

                     (d)  the total undistributed profit of a trust where:

                              (i)  the person is a trustee or beneficiary of the trust; and

                             (ii)  no part of that undistributed profit is attributable to the person; and

                            (iii)  the person controls the trust.

             (6)  For the purposes of subparagraph (5)(d)(iii), a person controls a trust if the person has:

                     (a)  a power of appointment under the trust; or

                     (b)  a power to rescind or vary a provision of, or to rescind or vary the effect of the exercise of a power under, the trust; or

                     (c)  a substantial influence over whether trust profit is distributed to:

                              (i)  the person or a family member of the person; or

                             (ii)  another trust, or a company or partnership, in which the person or a family member of the person has an interest.

11  Assets test definitions

             (1)  In this Act, unless the contrary intention appears:

accommodation bond has the same meaning as in the Aged Care Act 1997.

accommodation bond balance has the same meaning as in the Aged Care Act 1997.

accommodation charge has the same meaning as in the Aged Care Act 1997.

asset means property or money (including property or money outside Australia).

charge exempt resident has the same meaning as in the Aged Care Act 1997.

disposes of assets has the meaning given by section 1123.

exempt assets means assets described in subsection 1118(1).

fishing operations means:

                     (a)  operations relating directly to the taking or catching of fish, turtles, crustacea, oysters or other shellfish; or

                     (b)  oyster farming; or

                     (c)  pearling operations;

but does not include:

                     (d)  whaling; or

                     (e)  operations conducted otherwise than for the purposes of a business.

forest operations means:

                     (a)  the planting or tending in a plantation or forest of trees intended for felling; or

                     (b)  the felling of trees in a plantation or forest;

but does not include operations conducted otherwise than for the purposes of a business.

homeowner has the meaning given by subsection (4).

income year has the same meaning as in the Income Tax Assessment Act 1997.

pension year has the meaning given by subsection (10).

primary producer means a person whose principal occupation is primary production.

primary production means production resulting directly from:

                     (a)  the cultivation of land; or

                     (b)  the maintenance of animals or poultry for the purpose of selling them or their bodily produce, including natural increase; or

                     (c)  fishing operations; or

                     (d)  forest operations;

and includes the manufacture of dairy produce by the person who produced the raw material used in that manufacture.

principal home has the meaning given by section 11A.

reasonable security of tenure has the meaning given by subsection 11A(10).

unrealisable asset has the meaning given by subsections (12), (13) and (14).

value has the meaning given by subsections (2) and (3).

Note:          see also sections 1118 (certain assets to be disregarded in calculating the value of a person’s assets), 1121 (effect of charge or encumbrance on value of property) and 1145‑1157 (retirement villages).

             (2)  A reference in this Act to the value of a particular asset of a person is, if the asset is owned by the person jointly or in common with another person or persons, a reference to the value of the person’s interest in the asset.

             (3)  A reference in this Act to the value of a charge or encumbrance on an asset of a person is, if the asset is owned by the person jointly or in common with another person or persons, a reference to the value of that charge or encumbrance in so far as it relates to the person’s interest in the asset.

          (3A)  A reference in this Act to the value of a liability of a person is, if the liability is shared by the person with another person, a reference to the value of the person’s share of the liability.

          (3B)  To avoid doubt, an accommodation bond balance in respect of an accommodation bond paid by a person is taken to be an asset of the person.

          (3C)  To avoid doubt, a person’s entitlement to be paid a pension bonus or pension bonus bereavement payment is taken not to be an asset of the person for the purposes of this Act.

          (3D)  Subsection (3C) is to be disregarded in determining whether any other entitlement is an asset for the purposes of this Act.

Homeowner

             (4)  For the purposes of this Act:

                     (a)  a person who is not a member of a couple is a homeowner if:

                              (i)  the person has a right or interest in the person’s principal home; and

                             (ii)  the person’s right or interest in the home gives the person reasonable security of tenure in the home; and

                     (b)  a person who is a member of a couple is a homeowner if:

                              (i)  the person, or the person’s partner, has a right or interest in one residence that is:

                                        (A)  the person’s principal home; or

                                        (B)  the partner’s principal home; or

                                        (C)  the principal home of both of them; and

                             (ii)  the person’s right or interest, or the partner’s right or interest, in the home gives the person, or the person’s partner, reasonable security of tenure in the home; and

                     (c)  a person (whether a member of a couple or not) is a homeowner while:

                              (i)  the whole or a part of the proceeds of the sale of the person’s principal home are disregarded under subsection 1118(2); or

                             (ii)  the value of a residence, land or a structure is disregarded under subsection 1118(2).

Note:          see also section 1145‑1157 (retirement villages).

Pension year—disposal of assets

           (10)  A reference in sections 1123 to 1128 (disposal of assets) to a pension year, in relation to a person who is receiving:

                     (a)  a social security or service pension or income support supplement; or

                     (b)  a social security benefit;

is a reference to:

                     (d)  if the person is a member of a couple and, immediately before the person and the person’s partner became members of that couple, the person was receiving a pension, supplement or benefit referred to in paragraph (a) or (b) or a job search allowance and the person’s partner was receiving such a pension, supplement or benefit or a job search allowance—the period of 12 months beginning on the day on which they became members of that couple; or

                     (e)  if:

                              (i)  the person is a member of a couple but paragraph (d) does not apply; and

                             (ii)  the person’s partner is receiving a pension, supplement or benefit referred to in paragraph (a) or (b) or a job search allowance;

                            the period of 12 months beginning on the day on which:

                            (iii)  the pension, supplement or benefit referred to in paragraph (a) or (b) or the job search allowance first became payable to the person; or

                            (iv)  the pension, supplement or benefit referred to in paragraph (a) or (b) or the job search allowance first became payable to the person’s partner;

                            whichever was the earlier; or

                      (f)  otherwise—the period of 12 months beginning on the day on which a pension, supplement or benefit referred to in paragraph (a) or (b) or a job search allowance first became payable to the person;

and to each following and each preceding period of 12 months.

No pension year to extend beyond 30 June 2002

  (10AAA)  No period after 30 June 2002 is, or is a part of, a pension year of a person. If, apart from this subsection, a period beginning before 1 July 2002 and ending on or after that date would be a pension year of a person, the part of that period that ends immediately before that date is taken to be a pension year of the person.

     (10AA)  References in subsection (10) to a social security benefit include references to a non‑benefit PP (partnered) and a non‑benefit parenting allowance.

Pre‑pension year—disposal of assets

        (10A)  A reference in sections 1124A and 1125A (disposal of assets) to a pre‑pension year, in relation to a person who is claiming:

                     (a)  a social security or service pension or income support supplement; or

                     (b)  a social security benefit; or

                     (d)  a non‑benefit PP (partnered); or

                     (e)  a non‑benefit parenting allowance;

is a reference to the period of 12 months finishing on the day that is the person’s start day and each preceding period of 12 months.

No pre‑pension year to extend beyond 30 June 2002

        (10B)  No period after 30 June 2002 is, or is a part of, a pre‑pension year of a person. If, apart from this subsection, a period beginning before 1 July 2002 and ending on or after that date would be a pre‑pension year of a person, the part of that period that ends immediately before that date is taken to be a pre‑pension year of the person.

Unrealisable asset

           (12)  An asset of a person is an unrealisable asset if:

                     (a)  the person cannot sell or realise the asset; and

                     (b)  the person cannot use the asset as a security for borrowing.

           (13)  For the purposes of the application of this Act to a social security pension (other than a pension PP (single)), an asset of a person is also an unrealisable asset if:

                     (a)  the person could not reasonably be expected to sell or realise the asset; and

                     (b)  the person could not reasonably be expected to use the asset as a security for borrowing.

11A  Principal home definition for the purpose of the assets test

Principal home

             (1)  A reference in this Act to the principal home of a person includes a reference to:

                     (a)  if the principal home is a dwelling‑house—the land adjacent to the dwelling‑house to the extent that:

                              (i)  the land is held under the same title document as the land on which the dwelling‑house is located; and

                             (ii)  the private land use test in subsection (3) is satisfied in relation to the land or, if the person is one to whom the extended land use test applies in relation to the land, the extended land use test in subsection (6) is satisfied in relation to the land; or

                     (b)  if the principal home is a flat or home unit—a garage or storeroom that is used primarily for private or domestic purposes in association with the flat or home unit.

             (2)  The Secretary may determine that land is to be treated, for the purpose of subparagraph (1)(a)(i), as if it were held on the same title document as other land if any of the following apply:

                     (a)  the dwelling‑house is located on both blocks of land;

                     (b)  the dwelling‑house is located on one of the blocks of land but that block and the other block, taken together, are a place, or are part of a place, that is protected under a law of the Commonwealth, or of a State or Territory, because of its natural, historic or indigenous heritage;

                     (c)  the alienation of one of the blocks of land without the other would seriously undermine the function of the house as a dwelling.

Note:          A mere loss of amenity, such as the loss of a swimming pool, garden, tennis court or view, would not seriously undermine the function of a house as a dwelling.

Private land use test

             (3)  The private land use test is satisfied in relation to land if:

                     (a)  the area of the land, together with the area of the ground floor of the dwelling‑house, is not more than 2 hectares; and

                     (b)  the land is used primarily for private or domestic purposes in association with the dwelling‑house.

To whom does the extended land use test apply?

             (4)  The extended land use test applies to a person in relation to land adjacent to the dwelling‑house if:

                     (a)  the person has reached pension age; and

                     (b)  the person is qualified for an age pension or carer payment and that pension or payment is payable to the person; and

                     (c)  the dwelling‑house has been the person’s principal home for 20 years or more continuously.

             (5)  Where a person (the first person) to whom the extended land use test applies in relation to land adjacent to the dwelling‑house in which the person lives is a member of a couple:

                     (a)  the extended land use test applies to the first person’s partner (the second person); and

                     (b)  the extended land use test continues to apply to the second person if the first person and the second person cease to be members of a couple for any reason, provided the dwelling‑house continues to be the second person’s principal home.

Extended land use test

             (6)  The extended land use test is satisfied in relation to land if:

                     (a)  the area of the land, together with the area of the ground floor of the dwelling‑house, is more than 2 hectares; and

                     (b)  the Secretary determines that, given the circumstances of the person to whom the test is applied in relation to the land, the person is making effective use of the land.

             (7)  In determining whether a person is making effective use of the land, the Secretary is to take into account the following matters:

                     (a)  where the land is located;

                     (b)  the size of the block of land;

                     (c)  the person’s family situation;

                     (d)  the person’s health;

                     (e)  whether the land contains a dwelling‑house occupied by a family member of the person, or a child of a family member of the person, receiving an income support payment;

                      (f)  whether the land is being used to support:

                              (i)  a family member of the person; or

                             (ii)  a child of a family member of the person;

                     (g)  any current commercial use of the land;

                     (h)  any potential commercial use of the land;

                      (i)  whether the person’s capacity to make commercial use of the land is diminished because the person, or the person’s partner, has responsibility for the care of another person;

                      (j)  whether the block of land is an amalgamation of 2 or more blocks and, if so:

                              (i)  when the amalgamation occurred; and

                             (ii)  whether the amalgamation reduced the potential for the land to produce personal income or to support the person;

                     (k)  environmental issues relating to the land;

                      (l)  any other matter that the Secretary considers relevant.

Effect of absences from principal home

             (8)  A residence of a person is taken to be the person’s principal home during:

                     (a)  if the Secretary is satisfied that the residence was previously the person’s principal home but that the person left it for the purpose of going into a care situation—any period during which:

                              (i)  the person is accruing a liability to pay an accommodation charge (or would be accruing such a liability, assuming that no sanctions under Part 4.4 of the Aged Care Act 1997 were currently being imposed on the provider of the care concerned); and

                             (ii)  the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person; and

Note 1:    For rent, see subsection 13(2).

Note 2:    A person can be liable to pay an accommodation charge only if certain conditions are met: see Division 57A of the Aged Care Act 1997.

                     (b)  if the Secretary is satisfied that the residence was previously the person’s principal home but that the person left it for the purpose of going into a care situation—any period during which:

                              (i)  the person is liable to pay all or some of an accommodation bond by periodic payments (or would be liable to do so, assuming that no sanctions under Part 4.4 of the Aged Care Act 1997 were currently being imposed on the provider of the care concerned); and

                             (ii)  the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person; and

                     (c)  any period during which the residence is, because of paragraph (a) or (b), the principal home of the person’s partner.

Note:          This subsection is not meant to imply that a person may have more than one principal home at the same time.

             (9)  A residence of a person is to be taken to continue to be the person’s principal home during:

                     (a)  any period (not exceeding 12 months or any longer period determined under subsection (9A)) during which the person is temporarily absent from the residence; and

                     (b)  if the person is in a care situation or residential care—the period of 2 years beginning when the person started to be in a care situation or residential care; and

                     (c)  any period during which:

                              (i)  the person is in a care situation or residential care; and

                             (ii)  the residence is, or because of paragraph (a) or (b) continues to be, the principal home of the person’s partner; and

                     (d)  if:

                              (i)  the person is in a care situation or residential care; and

                             (ii)  the person’s partner dies while in a care situation or residential care; and

                            (iii)  the person’s partner had been in a care situation or residential care for less than 2 years;

                            the period of 2 years beginning at the time the person’s partner started to be in a care situation or residential care; and

                     (e)  where:

                              (i)  the person is in a care situation or residential care; and

                             (ii)  the person’s partner dies while in a care situation or residential care;

                            the period of 2 years from the partner’s death; and

                      (f)  any period of up to 2 years while the person is absent from the residence and is personally providing a substantial level of care in another private residence for another person who needs, or in the Secretary’s opinion is likely to need, that level of care in a private residence for at least 14 consecutive days.

Note:          For in a care situation, see subsection 13(9); for in residential care see subsection 23(4CA).

          (9A)  For the purposes of paragraph (9)(a), the Secretary may determine, in writing, a period of up to 24 months if:

                     (a)  a person’s principal home is lost or damaged (including, for example, by a natural disaster); and

                     (b)  the loss or damage was not wilfully caused by the person; and

                     (c)  the person is making reasonable attempts, as a result of the loss or damage, to:

                              (i)  rebuild or repair the principal home; or

                             (ii)  sell the principal home in order to purchase or build another residence that is to be the person’s principal home; or

                            (iii)  purchase or build another residence that is to be the person’s principal home; and

                     (d)  the person has made those attempts within a reasonable period after the loss or damage; and

                     (e)  the person has experienced delays beyond his or her control in:

                              (i)  rebuilding, repairing or selling the principal home; or

                             (ii)  purchasing or building the other residence.

Reasonable security of tenure

           (10)  If a person has a right or interest in the person’s principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Secretary is satisfied that the right or interest does not give the person reasonable security of tenure in the home.

Definition of title document

           (11)  In this section:

title document, in relation to land, means:

                     (a)  in relation to land title which is registered under a Torrens system of registration—the certificate of title for the land; or

                     (b)  in any other case—the last instrument by which title to the land was conveyed.

Application of Legislative Instruments Act 2003

           (12)  A determination under subsection (2) or paragraph (6)(b) is not a legislative instrument.

12  Retirement villages definitions

             (1)  In this Act:

actual value has the meaning given by subsection (5).

retirement village has the meaning given by subsections (3) and (4).

retirement village resident has the meaning given by subsection (5).

             (2)  A person is a member of an ordinary couple with different principal homes if:

                     (a)  the person is a member of a couple; and

                     (b)  the person does not share the person’s principal home with the person’s partner; and

                     (c)  the person is not a member of an illness separated couple.

             (3)  Premises constitute a retirement village for the purposes of this Act if:

                     (a)  the premises are residential premises; and

                     (b)  accommodation in the premises is primarily intended for persons who are at least 55 years old; and

                     (c)  the premises consist of:

                              (i)  one or more of the following kinds of accommodation:

                                        (A)  self‑care units;

                                        (B)  serviced units;

                                        (C)  hostel units; and

                             (ii)  communal facilities for use by occupants of the units referred to in subparagraph (i).

          (3A)  For the purposes of paragraph (3)(b), if accommodation in premises is primarily intended for persons who are a certain age that is more than 55 years, the accommodation in those premises is taken to be primarily intended for persons who are at least 55 years old.

             (4)  Residential premises are also to be taken to constitute a retirement village for the purposes of this Act if the Secretary is satisfied that the residential premises have similar functions to those referred to in subsection (3).

             (5)  A person is a retirement village resident if the person’s principal home is in a retirement village.

Note:          Subsection (3A) was inserted as a response to the decision of the Federal Court in Repatriation Commission v Clarke (unreported, VG73 of 1991).

12A  Granny flat definitions

             (1)  In this Act, unless the contrary intention appears:

granny flat interest has the meaning given by subsection (2).

granny flat resident has the meaning given by subsection (3).

             (2)  A person has a granny flat interest in the person’s principal home if:

                     (a)  the residence that is the person’s principal home is a private residence; and

                     (b)  the person has acquired for valuable consideration or has retained:

                              (i)  a right to accommodation for life in the residence; or

                             (ii)  a life interest in the residence.

          (2A)  Subsection (2) does not apply:

                     (a)  to a person to whom Part 3.14A applies because the person has transferred his or her qualifying interest in a farm in accordance with paragraph 1185B(1)(a) or (2)(a); or

                     (b)  if the person’s partner has transferred by way of gift:

                              (i)  to an eligible descendant of the person; or

                             (ii)  jointly to an eligible descendant of the person and to the descendant’s partner;

                            his or her qualifying interest in a farm—to the person’s partner;

if the person or the person’s partner (as the case may be), on so transferring his or her qualifying interest in the farm, has retained a life interest in the dwelling house on the farm, and in any adjacent area of land used primarily for private or domestic purposes in association with that dwelling‑house, that constitute his or her principal home.

          (2B)  Subsection (2) does not apply:

                     (a)  to a person to whom Part 3.14B applies because the person has transferred his or her eligible interest in a sugarcane farm in accordance with paragraph 1185R(1)(a) or (2)(a); or

                     (b)  if the person’s partner has transferred by way of gift:

                              (i)  to an eligible descendant of the person; or

                             (ii)  jointly to an eligible descendant of the person and to the descendant’s partner;

                            his or her eligible interest in a sugarcane farm—to the person’s partner;

if the person or the person’s partner (as the case may be), on so transferring his or her eligible interest in the farm, has retained a life interest in the dwelling house on the farm, and in any adjacent area of land used primarily for private or domestic purposes in association with that dwelling‑house, that constitute his or her principal home.

             (3)  A person is a granny flat resident if the person has a granny flat interest in the person’s principal home.

12B  Sale leaseback definitions

             (1)  In this Act, unless the contrary intention appears:

deferred payment amount has the meaning given by subsections (6) and (7).

initial payment amount has the meaning given by subsection (4).

sale leaseback agreement has the meaning given by subsections (2) and (3).

sale leaseback home has the meaning given by subsection (9).

sale leaseback resident has the meaning given by subsections (10) and (11).

             (2)  An agreement is a sale leaseback agreement, in relation to a person, if:

                     (a)  under the agreement the person agrees to sell his or her principal home; and

                     (b)  the residence that is the person’s principal home is a private residence; and

                     (c)  under the agreement the person retains a right to accommodation in the residence; and

                     (d)  under the agreement the buyer is to pay an amount when the person vacates the residence or when the person dies.

             (3)  An agreement is also a sale leaseback agreement if the Secretary is satisfied that the agreement is substantially similar in its effect to an agreement referred to in subsection (2).

             (4)  The initial payment amount, in relation to a sale leaseback agreement, is the amount that the Secretary determines to be the initial amount that the buyer is to pay under the sale leaseback agreement.

             (5)  In making the determination the Secretary is to have regard to the following:

                     (a)  the consideration to be provided by the parties to the sale leaseback agreement;

                     (b)  when that consideration is to be provided;

                     (c)  the payments that are to be made under the sale leaseback agreement;

                     (d)  when those payments are to be made;

                     (e)  any other relevant matters.

             (6)  The deferred payment amount, in relation to a sale leaseback agreement, is the total amount to be paid by the buyer under the sale leaseback agreement less the initial payment amount.

             (7)  If the Secretary considers that, for any special reason in a particular case, the deferred payment amount should be another amount, the deferred payment amount is that other amount.

Note:          sections 1123 to 1128 (disposal of assets) may be relevant to working out the deferred payment amount.

             (8)  Without limiting subsection (7), the Secretary may consider that the deferred payment amount should be another amount if:

                     (a)  the parties to the sale leaseback agreement are not at arm’s length; or

                     (b)  the parties to the sale leaseback agreement have undervalued the sale leaseback home so as to reduce the total amount to be paid by the buyer under the agreement.

             (9)  A residence is a sale leaseback home if the residence is subject to a sale leaseback agreement.

           (10)  A person is a sale leaseback resident if:

                     (a)  the person’s principal home is subject to a sale leaseback agreement; and

                     (b)  the person is a party to the sale leaseback agreement.

           (11)  If a person is a member of a couple, the person is a sale leaseback resident if:

                     (a)  the person lives in the sale leaseback home; and

                     (b)  the person’s partner is a sale leaseback resident.

Note:          subsection (11) will only be used if a person is not a sale leaseback resident under subsection (10).

12C  Special residence and residents definitions

             (1)  In this Act, unless the contrary intention appears:

special residence has the meaning given by subsection (2).

special resident has the meaning given by subsection (3).

             (2)  A residence is a special residence if the residence is:

                     (a)  in a retirement village; or

                     (b)  a granny flat; or

                     (c)  a sale leaseback home.

             (3)  A person is a special resident if the person is:

                     (a)  a retirement village resident; or

                     (b)  a granny flat resident; or

                     (c)  a sale leaseback resident.

             (4)  In Division 5 of Part 3.12 (sections 1145A to 1157), a reference to the actual value of the assets of a member of a couple is a reference to the value of the assets that are actually assets of the person rather than the person’s partner, that is, the value that would be the value of the person’s assets apart from the couple’s assets deeming provisions.

             (5)  In subsection (4):

couple’s assets deeming provisions means:

                     (a)  Pension Rate Calculator A (point 1064‑G2); and

                     (b)  Pension Rate Calculator C (point 1066‑G2); and

                   (ba)  subsections 500Q(4) and (5); and

                    (ca)  section 660YCK; and

                     (d)  section 612; and

                     (e)  section 681; and

                      (f)  subsection 895(2); and

                     (g)  section 734.

13  Rent definitions

             (1)  In this Act, unless the contrary intention appears:

amount of rent paid or payable has the meaning given by subsections (6) and (7).

board, when used in the expression board and lodging, means the provision of meals on a regular basis in connection with the provision of lodging.

Government rent means rent payable to any of the following authorities:

                     (a)  The Housing Commission of New South Wales;

                     (b)  the Director, within the meaning of the Housing Act 1983 of the State of Victoria;

                     (c)  The Queensland Housing Commission;

                     (d)  The Corporation of the Director of Aboriginal and Islanders Advancement established by a law of Queensland;

                     (e)  the South Australian Housing Trust;

                      (f)  The State Housing Commission established by a law of Western Australia;

                     (g)  the Director‑General of Housing and Construction holding office under a law of Tasmania;

                     (h)  the Northern Territory Housing Commission;

                      (j)  The Commissioner for Housing within the meaning of the Housing Assistance Act 1987 of the Australian Capital Territory.

Note:          Rent payable by a person for living in premises in respect of which someone else pays Government rent may also be regarded as Government rent (see subsection (3AC)).

ineligible homeowner means a homeowner other than:

                     (a)  a person who is a homeowner by virtue of paragraph 11(4)(c); or

                     (b)  a person who:

                              (i)  is absent from the person’s principal home, in relation to which the person is a homeowner; and

                             (ii)  is personally providing a substantial level of care in another private residence for another person who needs, or in the Secretary’s opinion is likely to need, that level of care in a private residence for at least 14 consecutive days; and

                            (iii)  has been absent from the principal home for less than 2 years while providing care as described in subparagraph (ii); or

                     (c)  a person who is in a care situation but is not residing in a retirement village; or

                     (d)  a person who pays amounts for the use of a site for a caravan or other vehicle, or a structure, that is the person’s principal home; or

                     (e)  a person who pays amounts for the right to moor a vessel that is the person’s principal home.

Note:          for approved respite care see subsection 4(9), for in a care situation see subsection 13(9), for retirement village see subsections 12(3) and (4), for homeowner see subsection 11(4) and for principal home see section 11A.

rent has the meaning given by subsection (2).

residing in a nursing home has the meaning given by subsection (8).

             (2)  Amounts are rent in relation to the person if:

                     (a)  the amounts are payable by the person:

                              (i)  as a condition of occupancy of premises, or of a part of premises, occupied by the person as the person’s principal home; or

                            (ia)  as a condition of occupancy of premises, or of a part of premises, occupied by the person to allow him or her to provide personally a substantial level of care in a private residence for another person who needs, or in the Secretary’s opinion is likely to need, that level of care in a private residence for at least 14 consecutive days; or

                             (ii)  for services provided in a retirement village that is the person’s principal home; or

                            (iii)  if the person is in a care situation and the place where the person receives the care is the person’s principal home or would be the person’s principal home apart from subsection 11A(8) or (9)—for accommodation in the place where the person receives care; or

                            (iv)  for lodging in premises that are the person’s principal home; or

                             (v)  for the use of a site for:

                                        (A)  a caravan or other vehicle; or

                                        (B)  a structure;

                                   occupied by the person as the person’s principal home; or

                            (vi)  for the right to moor a vessel that is occupied by the person as the person’s principal home; and

                     (b)  either:

                              (i)  the amounts are payable every 3 months or more frequently; or

                             (ii)  the amounts are payable at regular intervals (greater than 3 months) and the Secretary is satisfied that the amounts should be treated as rent for the purposes of this Act.

Note:          for retirement village see subsections 12(3) and (4) and for principal home see section 11A.

          (2A)  If:

                     (a)  youth allowance is payable to a person; and

                     (b)  the person is not independent (see section 1067A) and is required to live away from home (see section 1067D); and

                     (c)  the person is attending boarding school while living away from home;

then, for the purposes of subsection (2):

                     (d)  the boarding school is taken to be the person’s principal home while the person is attending the school; and

                     (e)  any fees charged for attending the boarding school are taken to be payable by the person.

             (3)  Subparagraphs (2)(a)(ii) to (vi) (inclusive) do not limit the generality of subparagraph (2)(a)(i).

       (3AA)  To avoid doubt, an amount that is paid or becomes payable by a person is not rent in relation to the person (either at the time when it is paid or becomes payable or at any later time) if the amount is, or forms part of, a special resident’s entry contribution in relation to the person in respect of a retirement village under section 1147, whether the amount is paid or payable (whether wholly or partly) in a lump sum, by instalments or otherwise.

       (3AB)  If the whole or any part of an amount that is not rent in relation to a person as mentioned in subsection (3AA) is, or will or may become, repayable to the person, any amount by which the amount so repayable is reduced is not rent in relation to the person (either at the time when the reduction occurs or at any later time).

       (3AC)  If a person pays, or is liable to pay, rent for living in premises in respect of which someone else pays Government rent (other than Government rent paid at or above a rate that the authority receiving the rent has told the Department is the market rate), the rent paid or payable by the person for living in those premises is taken to be Government rent, unless the person shares the premises with the person who pays, or is liable to pay, Government rent in respect of those premises and the person’s income has been taken into account in calculating the amount of Government rent payable in respect of those premises.

          (3A)  If a person is in a care situation and the person’s principal home is not the place where the person receives the care, the person’s rent may be an amount described in any of the subparagraphs of paragraph 13(2)(a) that applies to the person but cannot include amounts described in different subparagraphs of paragraph 13(2)(a).

Note:          Under subsection 11A(8) or (9), the principal home of a person in a care situation may be a place other than the place where the person receives care.

          (3B)  If an amount described in subparagraph 13(2)(a)(ia) and an amount described in another subparagraph of paragraph 13(2)(a) are payable by a person, the person’s rent may be an amount described in either of those subparagraphs but cannot include amounts described in different subparagraphs.

Note:          Under subsection 11A(8) or (9), premises occupied by a person as described in subparagraph 13(2)(a)(ia) may not be the person’s principal home.

             (5)  If a law of a State, the Northern Territory or the Australian Capital Territory alters the name of an authority referred to in the definition of Government rent in subsection (1), a reference to that authority in that definition is to be construed as a reference to the authority under the new name.

Board and lodging

             (6)  Where:

                     (a)  a person pays, or is liable to pay, amounts for board and lodging; and

                     (b)  it is not possible to work out the part of each of those amounts that is paid or payable for lodging;

the amount of rent paid or payable by the person is, for the purposes of this Act, to be taken to be two‑thirds of the amounts paid or payable as mentioned in paragraph (a).

Nursing homes

             (7)  Where:

                     (a)  a person in a care situation pays, or is liable to pay, amounts for accommodation and other services in the care situation; and

                     (b)  it is not possible to work out the part of each of those amounts that is paid or payable in respect of accommodation;

the amount of rent paid or payable by the person is, for the purposes of this Act, to be taken to be two‑thirds of the amounts paid or payable as mentioned in paragraph (a).

             (8)  Unless the contrary intention appears, a reference in this Act to a person residing in a nursing home is a reference to a person who is:

                     (a)  residing in premises at which accommodation is provided exclusively or principally for persons who have a mental disability; or

                     (c)  a nursing‑home type patient, within the meaning of the Health Insurance Act 1973, of a hospital.

          (8A)  Subject to subsections (8B) and (8C), a person is an aged care resident for the purposes of this Act if:

                     (a)  the person is in residential care; and

                     (b)  an approval for residential care or flexible care under Part 2.3 of the Aged Care Act 1997 is in force in respect of the person.

          (8B)  Without limiting subsection (8A), a person is taken not to be an aged care resident if:

                     (a)  the person is in approved respite care, and has been in approved respite care for a continuous period of 52 days or less; and

                     (b)  immediately before the person became a person in approved respite care, the person was receiving rent assistance.

          (8C)  The Secretary may determine, for the purposes of subsection (8A), that a person is taken not to be an aged care resident on a day that occurs:

                     (a)  after the person in fact became an aged care resident; and

                     (b)  before the day occurring 15 days after the person in fact became an aged care resident;

if the Secretary is satisfied that, immediately before the day, the person was liable to pay rent.

          (8D)  In this section, rent assistance means an amount paid or payable under this Act to help cover the cost of rent.

             (9)  For the purposes of this Act, unless the contrary intention appears, a person is in a care situation if:

                     (a)  the person is residing in a nursing home; or

                     (b)  the person needs and has been receiving a substantial level of care in a private residence for at least 14 consecutive days; or

                     (c)  in the Secretary’s opinion, the person needs and is likely to receive, a substantial level of care in a private residence for at least 14 consecutive days.

14  Remote area definitions

             (1)  In this Act, unless the contrary intention appears:

physically present in a remote area has the meaning given by subsection (2).

remote area means:

                     (a)  those parts of Australia referred to in paragraphs 1 and 2 of Part I of Schedule 2 to the Income Tax Assessment Act; and

                    (aa)  those parts of Australia referred to in Part II of Schedule 2 to the Income Tax Assessment Act that are more than 250 kilometres by the shortest practicable surface route from the centre point of the nearest urban centre with a census population (within the meaning of that Act) of 2,500 or more; and

                   (ab)  those places in Australia that, for the purposes of the Income Tax Assessment Act, are treated by the Commissioner for Taxation as being in a part of Australia referred to in paragraph (aa);

                     (b)  the Territory of Cocos (Keeling) Islands; and

                     (c)  the Territory of Christmas Island; and

                     (d)  Lord Howe Island.

             (2)  If:

                     (a)  a person’s usual place of residence is in the remote area; and

                     (b)  the person is absent from the remote area for a period;

the person is to be taken to be physically present in the remote area during:

                     (c)  if the period does not exceed 8 weeks—the whole of that period; or

                     (d)  if the period exceeds 8 weeks—the first 8 weeks of that period.

14A  Social security benefit liquid assets test definitions

             (1)  For the purposes of Parts 2.11, 2.11A, 2.12, 2.14 and 2.23A and Division 3A of Part 3 of the Administration Act:

liquid assets, in relation to a person, means the person’s cash and readily realisable assets, and includes:

                     (a)  the person’s shares and debentures in a public company within the meaning of the Corporations Act 2001; and

                     (b)  amounts deposited with, or lent to, a bank or other financial institution by the person (whether or not the amount can be withdrawn or repaid immediately); and

                     (c)  amounts due, and able to be paid, to the person by, or on behalf of, a former employer of the person;

but does not include:

                     (d)  a roll‑over superannuation benefit (within the meaning of the Income Tax Assessment Act 1997); or

                  (daa)  a superannuation lump sum (within the meaning of that Act) that is a contributions‑splitting superannuation benefit (within the meaning of that Act); or

                 (dab)  a directed termination payment (within the meaning of section 82‑10F of the Income Tax (Transitional Provisions) Act 1997); or

                  (dac)  the surrender value of a life policy (within the meaning of the Life Insurance Act 1995); or

                   (da)  an amount of an AGDRP that the person received, if the Secretary is satisfied that the length of time since receiving the payment is still reasonable in the circumstances; or

                     (e)  in the case of a person who:

                              (i)  has claimed or is receiving a youth allowance or an austudy payment; and

                             (ii)  is undertaking a tertiary course of education in any year or part of a year;

                            an amount necessary to cover the reasonable expenses incurred, or likely to be incurred, by the person in that year or that part of a year and that are directly related to his or her undertaking the course, including:

                            (iii)  up front course fees; and

                            (iv)  HECS payments; and

                             (v)  union fees; and

                            (vi)  costs of text books; and

                           (vii)  costs of any tools or equipment required to undertake the course, including computer software; and

                          (viii)  expenses directly related to any field trips undertaken for the purposes of the course; and

                            (ix)  such other expenses as are approved by the Secretary.

maximum reserve, in relation to a person, means:

                     (a)  if the person is not a member of a couple and does not have a dependent child—$2,500; or

                     (b)  in any other case—$5,000.

Note:          The definition of maximum reserve is affected by subsections (6A) and (6B).

             (2)  For the purposes of Parts 2.11, 2.11A, 2.12, 2.14 and 2.23A and Division 3A of Part 3 of the Administration Act, a person’s liquid assets are to be taken to include:

                     (a)  the liquid assets of the person’s partner; and

                     (b)  the liquid assets of the person and the person’s partner.

             (3)  If:

                     (a)  during the 4 weeks immediately before a person claims youth allowance, austudy payment, newstart allowance or sickness allowance, the person or the person’s partner transfers liquid assets to a person of any age who is the natural child, adopted child or relationship child of the person or the partner; and

                     (b)  either:

                              (i)  the person transferring receives no consideration or inadequate consideration, in money or money’s worth for the transfer; or

                             (ii)  the Secretary is satisfied that the purpose, or the dominant purpose, of the transfer was to enable the claimant to obtain youth allowance, austudy payment, newstart allowance or sickness allowance;

then the transfer is to be taken, for the purposes of this section, not to have occurred.

             (4)  If:

                     (a)  a person sells the person’s principal home; and

                     (b)  the person is likely, within 12 months, to apply the whole or part of the proceeds of the sale in acquiring another residence that is to be the person’s principal home;

so much of the proceeds of the sale as the person is likely to apply in acquiring the other residence is to be disregarded during that period for the purposes of determining the amount of the person’s liquid assets.

             (5)  If:

                     (a)  a person has or had a debt not related to the person’s principal home or to any other residential property in which the person holds or held, solely or jointly, any right or interest; and

                     (b)  since becoming unemployed or incapacitated for work or study (as the case requires), the person has, in order to discharge the debt in whole or in part, made a payment that the person was not obliged to make; and

                     (c)  since becoming unemployed or incapacitated for work or study (as the case requires), the person had not already made such a payment in order to discharge that debt in part;

the amount of the payment referred to in paragraph (b) is to be disregarded for the purposes of determining the amount of the person’s liquid assets.

          (5A)  If:

                     (a)  a person has or had a debt not related to the person’s principal home or to any other residential property in which the person holds or held, solely or jointly, any right or interest; and

                     (b)  since becoming qualified for youth allowance or austudy payment (as the case requires), the person has, in order to discharge the debt in whole or in part, made a payment that the person was not obliged to make; and

                     (c)  since becoming qualified for youth allowance or austudy payments (as the case requires), the person had not already made such a payment in order to discharge that debt in part;

the amount of the payment referred to in paragraph (b) is to be disregarded for the purposes of determining the amount of the person’s liquid assets.

             (6)  For the purpose of determining whether a liquid assets test waiting period applies in relation to a claim for a social security benefit, subsection (5) can apply to a payment made after the claim if the payment is made before such a liquid assets test waiting period would end under section 549A, 575A, 598 or 676 (whichever is applicable).

          (6A)  This section has effect for the purposes of Parts 2.11, 2.11A, 2.12 and 2.14 during the designated period as if:

                     (a)  the reference in paragraph (a) of the definition of maximum reserve in subsection (1) to $2,500 were a reference to $5,000; and

                     (b)  the reference in paragraph (b) of that definition to $5,000 were a reference to $10,000.

          (6B)  For the purposes of subsection (6A), the designated period is the period beginning on 1 April 2009 and ending at the end of:

                     (a)  31 March 2011; or

                     (b)  if a later date is determined by the Minister by legislative instrument—that later date.

             (7)  For the purposes of Division 3A of Part 3 of the Administration Act, a person is in severe financial hardship if the value of the person’s liquid assets does not exceed the person’s maximum reserve.

16  Industrial action definitions

             (1)  In this Act, unless the contrary intention appears:

industrial action means any of the following that is not authorised by the employer of the person concerned:

                     (a)  the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, result of which is a restriction or limitation on, or a delay in, the performance of the work;

                     (b)  a ban, limitation or restriction on the performance of work or on acceptance of, or offering for, work;

                     (c)  a failure or refusal by a person to attend for work or a failure or refusal to perform any work at all by a person who attends for work.

Note:          see also subsection (2).

trade union includes any organisation or association of employees (whether corporate or unincorporate) that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment.

Note:          see also subsection (3).

unemployment, in relation to a person, includes:

                     (a)  unemployment of the person arising from:

                              (i)  a person or persons being, or having been, engaged in industrial action; and

                             (ii)  the termination of the person’s employment; and

                     (b)  a situation where the person:

                              (i)  is, or has been, stood down from the person’s employment or work; or

                             (ii)  is, or has been, suspended from the person’s employment or work.

Industrial action

             (2)  For the purposes of the definition of industrial action in subsection (1), conduct that relates to part only of the duties that a person is required to perform in the course of his or her employment is capable of being industrial action.

Trade unions divided into branches

             (3)  If a trade union is divided into branches (whether or not the branches are themselves trade unions), persons who are members of the respective branches are taken to be members of the trade union.

16A  Seasonal work definitions

Definitions

             (1)  In this Act, unless the contrary intention appears:

relevant AWOTE, in relation to a calendar year, means the amount that, under the heading “Trend Estimates” in the document entitled “Average Weekly Earnings, States and Australia” last published by the Australian Bureau of Statistics before 1 January in that year, is specified as being the full‑time adult ordinary time earnings for Australia for the quarter to which the document relates.

seasonal work means:

                     (a)  work that, because of its nature or of factors peculiar to the industry in which it is performed, is available, at approximately the same time or times every year, for part or parts only of the year; or

                    (aa)  work:

                              (i)  that is intermittent; and

                             (ii)  that is to be performed for a period of less than 12 months; and

                            (iii)  that is to be performed for a specified period or a period that can reasonably be calculated by reference to the completion of a specified task; and

                            (iv)  for which the person performing the work does not accrue leave entitlements; or

                     (b)  work that is intermittent and is determined, under subsection (2), to be seasonal work for the purposes of this Act.

Examples:  Examples of work described in paragraph (a) are fishing, fruit picking, shearing and work in an industry that is subject to Christmas shutdowns. Examples of work that is intermittent are relief teaching and work as a locum.

seasonal work income means gross income from seasonal work less amounts necessarily expended in relation to that seasonal work that the person can demonstrate are allowable deductions for the purposes of the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997, as the case may be.

seasonal work preclusion period has the meaning given by subsections (3) and (4).

subject to a seasonal work preclusion period has the meaning given by subsection (11).

          (1A)  Paragraph (aa) of the definition of seasonal work in subsection (1) does not apply to a person undertaking seasonal work if the person was receiving income support payments (whether or not the kind of payment received has changed over the period and whether any part of it occurred before or after the commencement of this section) in respect of a continuous period exceeding 12 months immediately before the person commenced the seasonal work.

Secretary’s determination—seasonal work

             (2)  The Secretary may, by legislative instrument, determine that a specified kind of work that is intermittent is seasonal work for the purposes of this Act.

Seasonal work preclusion periods

             (3)  If:

                     (a)  a person is not a member of a couple; and

                     (b)  the person has made a claim for newstart allowance, widow allowance, mature age allowance under Part 2.12B, youth allowance, special benefit, parenting payment, disability support pension, sickness allowance, carer payment or austudy payment; and

                     (c)  the person was engaged in seasonal work at any time during the 6 months immediately before the day on which the person lodged the claim;

the person’s seasonal work preclusion period in relation to the claim is the period consisting of the number of weeks worked out under subsection (5) that starts on the day on which the claim was lodged.

             (4)  If:

                     (a)  a person is a member of a couple; and

                     (b)  the person has made a claim for newstart allowance, mature age allowance under Part 2.12B, partner allowance, parenting payment, youth allowance, special benefit, disability support pension, sickness allowance, carer payment or austudy payment; and

                     (c)  the person, or the person’s partner, or both, were engaged in seasonal work at any time during the 6 months immediately before the day on which the person lodged the claim;

the person’s seasonal work preclusion period in relation to the claim is the period consisting of the number of weeks worked out under subsection (6), (7) or (8) that starts on the day on which the claim was lodged.

             (5)  If the person is not a member of a couple, the number of weeks in the person’s seasonal work preclusion period is worked out as follows:

Method statement

Step 1.   Identify each period of continuous seasonal work by the person that ended during the 6 months immediately before the day on which the claim was lodged. If the person has performed seasonal work during 2 periods that are less than 14 days apart, the periods of work and the intervening period are taken to be one continuous period during which the person has performed seasonal work.

Step 2.   If a period identified in Step 1 has already been taken into account when working out a seasonal work preclusion period in relation to a previous claim by the person (whether for the same or a different allowance or payment), disregard the period. Each remaining period is called a relevant period of seasonal work.

Step 3.   Work out the amount of seasonal work income earned by the person during each of the person’s relevant periods of seasonal work, disregarding any income by way of a lump sum that was earned during that period but was not paid to the person before the day on which the claim was lodged.

Step 4.   Add together the amounts worked out in Step 3. The result is called the person’s seasonal work earnings.

Step 5.   Divide the person’s seasonal work earnings by the amount of the relevant AWOTE for the calendar year in which the claim was lodged. The result is called the person’s AWOTE weeks and represents the number of weeks (including any part of a week) that a person paid at a rate equal to the relevant AWOTE for that calendar year would have to work to earn an amount equal to the person’s seasonal work earnings.

Step 6.   Work out the number of weeks in the person’s relevant periods of seasonal work by dividing the total number of days included in those periods by 7. The result (including any part of a week) is called the person’s seasonal work weeks.

Step 6A. If there is a period between one relevant period of seasonal work and another, or between a relevant period of seasonal work and the day on which the claim was lodged, work out the number of weeks in the period (the intervening period). This is done by dividing the total number of days in the intervening period by 7.

Step 6B. If there is more than one intervening period, add together the number of weeks worked out for each intervening period. The result (including any part of a week) is called the person’s intervening weeks.

Step 6C. Add together the number of seasonal work weeks worked out under Step 6 and the number of intervening weeks (if any) worked out under Step 6B. The result (including any part of a week) is called the person’s self‑supported weeks.

Step 7.   Subtract the person’s self‑supported weeks from the person’s AWOTE weeks. The result (rounded down, if necessary, to the nearest whole number) is the number of weeks in the person’s seasonal work preclusion period. If the result is a negative number, the number of weeks in the period is taken to be nil.

Note 1:       For relevant AWOTE see subsection (1).

Note 2:       For seasonal work see subsection (1).

Note 3:       For seasonal work income see subsection (1).

             (6)  If:

                     (a)  the person is a member of a couple; and

                     (b)  the person was engaged in seasonal work at any time during the 6 months immediately before the day on which the person lodged the claim (the relevant period); and

                     (c)  the person’s partner was not engaged in seasonal work at any time during the relevant period;

the number of weeks in the person’s seasonal work preclusion period is worked out as follows:

Method statement

Step 1.   Identify each period of continuous seasonal work by the person that ended during the 6 months immediately before the day on which the claim was lodged. If the person has performed seasonal work during 2 periods that are less than 14 days apart, the periods of work and the intervening period are taken to be one continuous period during which the person has performed seasonal work.

Step 2.   If a period identified in Step 1 has already been taken into account when working out a seasonal work preclusion period in relation to a previous claim by the person (whether for the same or a different allowance or payment), disregard the period. Each remaining period is called a relevant period of seasonal work.

Step 3.   Work out the amount of seasonal work income earned by the person during each of the person’s relevant periods of seasonal work, disregarding any income by way of a lump sum that was earned during that period but was not paid to the person before the day on which the claim was lodged.

Step 4.   Add together the amounts worked out in Step 3. The result is called the person’s seasonal work earnings.

Step 5.   Work out the total amount of income from personal exertion earned by the person’s partner during the person’s relevant periods of seasonal work. Add the amount obtained to the person’s seasonal work earnings. The result is called the couple’s combined earnings.

Step 6.   Divide the couple’s combined earnings by twice the amount of the relevant AWOTE for the calendar year in which the claim was lodged. The result is called the couple’s AWOTE weeks and represents the number of weeks (including any part of a week) that 2 persons, each paid at a rate equal to the relevant AWOTE for that calendar year, would have to work to earn together an amount equal to the couple’s combined earnings.

Step 7.   Work out the number of weeks in the person’s relevant periods of seasonal work by dividing the total number of days included in those periods by 7. The result (including any part of a week) is called the person’s seasonal work weeks.

Step 7A. If there is a period between one relevant period of seasonal work and another, or between a relevant period of seasonal work and the day on which the claim was lodged, work out the number of weeks in the period (the intervening period). This is done by dividing the total number of days in the intervening period by 7.

Step 7B. If there is more than one intervening period, add together the number of weeks worked out for each intervening period. The result (including any part of a week) is called the person’s intervening weeks.

Step 7C. Add together the number of seasonal work weeks worked out under Step 7 and the number of intervening weeks (if any) worked out under Step 7B. The result (including any part of a week) is called the person’s self‑supported weeks.

Step 8.   Subtract the person’s self‑supported weeks from the couple’s AWOTE weeks. The result (rounded down, if necessary, to the nearest whole number) is the number of weeks in the person’s seasonal work preclusion period. If the result is a negative number, the number of weeks in the period is taken to be nil.

Note 1:       For relevant AWOTE see subsection (1).

Note 2:       For seasonal work see subsection (1).

Note 3:       For seasonal work income see subsection (1).

             (7)  If:

                     (a)  the person is a member of a couple; and

                     (b)  the person was not engaged in seasonal work at any time during the 6 months immediately before the day on which the person lodged the claim (the relevant period); and

                     (c)  the person’s partner was engaged in seasonal work at any time during the relevant period;

the number of weeks in the person’s seasonal work preclusion period is worked out as follows:

Method statement

Step 1.   Identify each period of continuous seasonal work by the partner that ended during the 6 months immediately before the day on which the claim was lodged. If the partner has performed seasonal work during 2 periods that are less than 14 days apart, the periods of work and the intervening period are taken to be one continuous period during which the partner has performed seasonal work.

Step 2.   If a period identified in Step 1 has already been taken into account when working out a seasonal work preclusion period in relation to a previous claim by the person (whether for the same or a different allowance or payment), disregard the period. Each remaining period is called a relevant period of seasonal work.

Step 3.   Work out the total amount of income from personal exertion earned by the person during the partner’s relevant periods of seasonal work. The result is called the person’s earnings.

Step 4.   Work out the amount of seasonal work income earned by the partner during each of the partner’s relevant periods of seasonal work, disregarding any income by way of a lump sum that was earned during that period but was not paid to the partner before the day on which the claim was lodged.

Step 5.   Add together the amounts worked out in Step 4. The result is called the partner’s seasonal work earnings.

Step 6.   Add the partner’s seasonal work earnings and the person’s earnings. The result is called the couple’s combined earnings.

Step 7.   Divide the couple’s combined earnings by twice the amount of the relevant AWOTE for the calendar year in which the claim was lodged. The result is called the couple’s AWOTE weeks and represents the number of weeks (including any part of a week) that 2 persons, each paid at a rate equal to the relevant AWOTE for that calendar year, would have to work to earn together an amount equal to the couple’s combined earnings.

Step 8.   Work out the number of weeks in the partner’s relevant periods of seasonal work by dividing the total number of days included in those periods by 7. The result (including any part of a week) is called the partner’s seasonal work weeks.

Step 8A. If there is a period between one relevant period of seasonal work and another, or between a relevant period of seasonal work and the day on which the claim was lodged, work out the number of weeks in the period (the intervening period). This is done by dividing the total number of days in the intervening period by 7.

Step 8B. If there is more than one intervening period, add together the number of weeks worked out for each intervening period. The result (including any part of a week) is called the partner’s intervening weeks.

Step 8C. Add together the number of seasonal work weeks worked out under Step 8 and the number of intervening weeks (if any) worked out under Step 8B. The result (including any part of a week) is called the partner’s self‑supported weeks.

Step 9.   Subtract the partner’s self‑supported weeks from the couple’s AWOTE weeks. The result (rounded down, if necessary, to the nearest whole number) is the number of weeks in the person’s seasonal work preclusion period. If the result is a negative number, the number of weeks in the period is taken to be nil.

Note 1:       For relevant AWOTE see subsection (1).

Note 2:       For seasonal work see subsection (1).

Note 3:       For seasonal work income see subsection (1).

             (8)  If:

                     (a)  the person is a member of a couple; and

                     (b)  both the person and the person’s partner have engaged in seasonal work during the 6 months immediately before the day on which the claim was lodged;

the number of weeks in the person’s seasonal work preclusion period is worked out as follows:

Method statement

Step 1.   Work out what would be the number of weeks in the person’s seasonal work preclusion period if subsection (6) applied to the person.

Step 2.   Work out what would be the number of weeks in the person’s seasonal work preclusion period if subsection (7) applied to the person.

Step 3.   Compare the number of weeks in each period. The number of weeks in the person’s seasonal work preclusion period is equal to the number of weeks in the longer of the 2 periods.

Subject to a seasonal work preclusion period

           (11)  If a person’s seasonal work preclusion period in relation to a claim consists of a number of weeks that is greater than nil, then, except as otherwise provided under this Act, the person is subject to that period for the purposes of this Act.

16B  Partial capacity to work

             (1)  A person has a partial capacity to work if:

                     (a)  the person has a physical, intellectual or psychiatric impairment; and

                     (b)  the Secretary is satisfied that:

                              (i)  the impairment of itself prevents the person from doing 30 hours per week of work independently of a program of support within the next 2 years; and

                             (ii)  no training activity is likely (because of the impairment) to enable the person to do 30 hours per week of work independently of a program of support within the next 2 years.

             (2)  A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

                     (a)  is unlikely to need a program of support that:

                              (i)  is designed to assist the person to prepare for, find or maintain work; and

                             (ii)  is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

                     (b)  is likely to need such a program of support provided occasionally; or

                     (c)  is likely to need such a program of support that is not ongoing.

             (3)  In deciding whether he or she is satisfied as mentioned in paragraph (1)(b) or subsection (2), the Secretary must comply with the guidelines (if any) determined and in force under subsection (4).

             (4)  The Minister may, by legislative instrument, determine guidelines to be complied with by the Secretary in deciding whether he or she is satisfied as mentioned in paragraph (1)(b).

             (5)  In this section:

30 hours per week of work means work:

                     (a)  that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and

                     (b)  that exists in Australia, even if not within the person’s locally accessible labour market.

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

                     (a)  education;

                     (b)  pre‑vocational training;

                     (c)  vocational training;

                     (d)  vocational rehabilitation;

                     (e)  work‑related training (including on‑the‑job training).

17  Compensation recovery definitions

             (1)  In this Act, unless the contrary intention appears:

compensation has the meaning given by subsection (2).

Note:          See also section 1163B.

compensation affected payment means:

                    (aa)  an age pension; or

                     (a)  a disability support pension; or

                     (b)  a parenting payment; or

                     (c)  a social security benefit; or

                     (e)  a disability support wife pension; or

                      (f)  a carer payment; or

                     (g)  a special needs disability support pension; or

                     (h)  a special needs disability support wife pension; or

                      (i)  mature age allowance; or

                      (j)  mature age partner allowance; or

                     (k)  a former payment type; or

                      (l)  any of the following:

                              (i)  an advance pharmaceutical allowance;

                             (ii)  a telephone allowance, other than a telephone allowance payable to the holder of a seniors health card;

                            (iv)  an education entry payment;

                             (v)  a pensioner education supplement;

                            where, in order to be qualified for the allowance, payment or supplement, a person must be receiving, or receiving at a particular time, another kind of payment and that other kind of payment (the underlying compensation affected payment) is a compensation affected payment to which any of paragraphs (aa) to (k) applies; or

                    (m)  a fares allowance, where:

                              (i)  if subparagraph 1061ZAAA(1)(b)(i), (ii) or (iii) applies—the allowance or payment (the underlying compensation affected payment) mentioned in that subparagraph is a compensation affected payment to which any of paragraphs (aa) to (k) of this definition applies; or

                             (ii)  if subparagraph 1061ZAAA(1)(b)(iv) applies—in order to be qualified for the supplement mentioned in that subparagraph, a person must be receiving another kind of payment and that other kind of payment (the underlying compensation affected payment) is a compensation affected payment to which any of paragraphs (aa) to (k) of this definition applies; or

                     (n)  a CDEP Scheme Participant Supplement, where the pension, payment or allowance (the underlying compensation affected payment) mentioned in paragraph 1188D(2)(a) is a compensation affected payment to which any of paragraphs (aa) to (k) of this definition applies.

compensation part, in relation to a lump sum compensation payment, has the meaning given by subsections (3) and (4).

compensation payer means:

                     (a)  a person who is liable to make a compensation payment; or

                     (b)  an authority of a State or Territory that has determined that it will make a payment by way of compensation to another person, whether or not the authority is liable to make the payment.

disability support wife pension means a wife pension for a woman whose partner receives a disability support pension.

event that gives rise to an entitlement to compensation has the meaning given by subsection (5A).

former payment type means:

                     (a)  an invalid pension under the 1947 Act; or

                     (b)  an invalid pension under this Act as previously in force; or

                   (ba)  a disability wage supplement under this Act as previously in force; or

                     (c)  a sheltered employment allowance under the 1947 Act; or

                     (d)  a sheltered employment allowance under this Act as previously in force; or

                     (e)  an unemployment benefit under the 1947 Act; or

                      (f)  a sickness benefit under the 1947 Act; or

                     (g)  a special benefit under the 1947 Act; or

                     (h)  a sickness benefit under this Act as previously in force; or

                   (ha)  a job search allowance under this Act as previously in force; or

                      (i)  a rehabilitation allowance under the 1947 Act payable in place of:

                              (i)  an invalid pension under the 1947 Act; or

                             (ii)  a sheltered employment allowance under the 1947 Act; or

                            (iii)  an unemployment benefit under the 1947 Act; or

                            (iv)  a sickness benefit under the 1947 Act; or

                             (v)  a special benefit under the 1947 Act; or

                      (j)  a rehabilitation allowance under this Act as previously in force payable in place of:

                              (i)  a disability support pension; or

                             (ii)  an invalid pension under this Act as previously in force; or

                            (iii)  a sheltered employment allowance under this Act as previously in force; or

                            (iv)  a social security benefit; or

                             (v)  a sickness benefit under this Act as previously in force; or

                     (k)  an invalid wife pension under the 1947 Act; or

                      (l)  an invalid wife pension under this Act as previously in force; or

                    (m)  a special needs invalid pension under this Act as previously in force; or

                     (n)  a special needs invalid wife pension under this Act as previously in force; or

                     (o)  a carer payment under this Act as previously in force; or

                     (p)  a sole parent pension under this Act as previously in force; or

                     (q)  a parenting allowance under this Act as previously in force; or

                      (r)  a parenting payment under this Act as in force immediately before 1 July 2000; or

                      (s)  a youth training allowance under Part 8 of the Student Assistance Act 1973 as previously in force; or

                      (t)  a payment under this Act as previously in force declared by the Minister, by legislative instrument, to be a former payment type for the purposes of Part 3.14.

income cut‑out amount, in relation to a person who has received a compensation payment, means the amount worked out using the formula in subsection (8), as in force at the time when the compensation was received.

invalid wife pension means:

                     (a)  in relation to the 1947 Act, a wife’s pension under the 1947 Act for a woman whose husband received an invalid pension under the 1947 Act; or

                     (b)  in relation to this Act as previously in force, a wife pension for a woman whose partner received an invalid pension under this Act as previously in force.

periodic payments period means:

                     (a)  the period to which a periodic compensation payment, or a series of periodic compensation payments, relates; or

                     (b)  in the case of a payment of arrears of periodic compensation payments—the period to which those payments would have related if they had not been made by way of an arrears payment.

potential compensation payer means a person who, in the Secretary’s opinion, may become a compensation payer.

receives compensation has the meaning given by subsection (5).

special needs disability support wife pension means a special needs wife pension for a woman whose partner receives a special needs disability support pension.

special needs invalid wife pension means a special needs wife pension for a woman whose partner received a special needs invalid pension under this Act as previously in force.

Compensation

             (2)  Subject to subsection (2B), for the purposes of this Act, compensation means:

                     (a)  a payment of damages; or

                     (b)  a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or

                     (c)  a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or

                     (d)  any other compensation or damages payment;

(whether the payment is in the form of a lump sum or in the form of a series of periodic payments and whether it is made within or outside Australia) that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury.

          (2A)  Paragraph (2)(d) does not apply to a compensation payment if:

                     (a)  the recipient has made contributions (for example, by way of insurance premiums) towards the payment; and

                     (b)  either:

                              (i)  the agreement under which the contributions are made does not provide for the amounts that would otherwise be payable under the agreement being reduced or not payable because the recipient is eligible for or receives payments under this Act that are compensation affected payments; or

                             (ii)  the agreement does so provide but the compensation payment has been calculated without reference to the provision.

          (2B)  A payment under a law of the Commonwealth, a State or a Territory that provides for the payment of compensation for a criminal injury does not constitute compensation for the purposes of this Act.

          (2C)  The reference in subsection (2B) to a criminal injury is a reference to a personal injury suffered, or a disease or condition contracted, as a result of the commission of an offence.

Compensation part of a lump sum

             (3)  Subject to subsection (4), for the purposes of this Act, the compensation part of a lump sum compensation payment is:

                     (a)  50% of the payment if the following circumstances apply:

                              (i)  the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and

                             (ii)  the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or

                   (ab)  50% of the payment if the following circumstances apply:

                              (i)  the payment represents that part of a person’s entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and

                             (ii)  the entitlement to periodic compensation payments arose from the settlement (either with or without admission of liability) of a claim that is, in whole or in part, related to a disease, injury or condition; and

                            (iii)  the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or

                     (b)  if those circumstances do not apply—so much of the payment as is, in the Secretary’s opinion, in respect of lost earnings or lost capacity to earn, or both.

             (4)  Where a person:

                     (a)  has received periodic compensation payments; and

                     (b)  after receiving those payments, receives a lump sum compensation payment (in this subsection called the LSP); and

                     (c)  because of receiving the LSP, becomes liable to repay an amount (in this subsection called the Repaid Periodic Compensation PaymentRPCP) equal to the periodic compensation payments received;

then, for the purposes of subsection (3), the amount of the lump sum compensation payment is:

          (4A)  For the purposes of this Act, a payment of arrears of periodic compensation payments is not a lump sum compensation payment.

Receives compensation

             (5)  A person receives compensation whether he or she receives it directly or whether another person receives it, on behalf of, or at the direction of the first person.

          (5A)  For the purposes of subsection (2B) of this section and Part 3.14, the event that gives rise to a person’s entitlement to compensation for a disease, injury or condition is:

                     (a)  if the disease, injury or condition was caused by an accident—the accident; or

                     (b)  in any other case—the disease, injury or condition first becoming apparent;

and is not, for example, the decision or settlement under which the compensation is payable.

Insurer

             (6)  A reference in Part 3.14 to an insurer who is, under a contract of insurance, liable to indemnify a compensation payer or a potential compensation payer against a liability arising from a claim for compensation includes a reference to:

                     (a)  an authority of a State or Territory that is liable to indemnify a compensation payer against such a liability, whether the authority is so liable under a contract, a law or otherwise; or

                     (b)  an authority of a State or Territory that determines to make a payment to indemnify a compensation payer against such a liability, whether or not the authority is liable to do so.

             (8)  For the purposes of the definition of income cut‑out amount in subsection (1), the formula is as follows:

where:

maximum basic rate means the amount specified in column 3 of item 1 of the table in point 1064‑B1.

ordinary free area limit means the amount specified in column 3 of item 1 in Table E‑1 in point 1064‑E4.

point 1064‑BA3 amount means the pension supplement amount worked out under point 1064‑BA3 for a person who is not a member of a couple:

                     (a)  whether or not the person for whom the income cut‑out amount is being worked out is a member of a couple; and

                     (b)  whether or not that point applies to the person for whom the income cut‑out amount is being worked out.

17A  Retirement assistance for farmers definitions

             (1)  In this Act, unless the contrary intention appears:

eligible descendant, in relation to a person, means:

                     (a)  a child, step‑child or adopted child of the person or of a partner of the person; or

                     (b)  a descendant in direct line of a child described in paragraph (a); or

                     (c)  any other 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).

eligible former partner of a qualifying farmer has the meaning given by subsection (2).

farm means any land that is used:

                     (a)  for the purposes of a farm enterprise; or

                     (b)  in connection with a farm enterprise.

farm enterprise means an enterprise carried on within any of the agricultural, horticultural, pastoral or aquacultural industries.

proprietary company has the meaning that it has in the Corporations Act 2001.

qualifying farmer has the meaning given by subsections (3) and (4).

qualifying interest has the meaning given by subsections (5) and (6).

relevant farm asset, in relation to a farm, means any livestock, crop, plant or equipment that is a produce of, or is used for the purposes of, the farm enterprise.

relevant State land law means any of the following laws:

                     (a)  the Real Property Act 1900 of New South Wales;

                     (b)  the Transfer of Land Act 1958 of Victoria;

                     (c)  the Land Title Act 1994 of Queensland;

                     (d)  the Transfer of Land Act 1893 of Western Australia;

                     (e)  the Real Property Act, 1886 of South Australia;

                      (f)  the Land Titles Act 1980 of Tasmania;

                     (g)  the Real Property Act 1925 of the Australian Capital Territory;

                     (h)  the Real Property Act of the Northern Territory;

                      (i)  a law of a Territory (other than the Australian Capital Territory or the Northern Territory) making similar provision for the registration of dealings with land as the laws mentioned above.

transfer:

                     (a)  in relation to a qualifying interest in a farm—has the meaning given by subsections (7), (8), (10) and (11); or

                     (b)  in relation to a qualifying interest in a relevant farm asset—has the meaning given by subsections (9) and (11).

             (2)  A person is an eligible former partner of a qualifying farmer if:

                     (a)  the person was, but no longer is (whether because of death or any other reason), the partner of another person; and

                     (b)  on the day on which the person ceased to be the partner of the other person, the other person was a qualifying farmer; and

                     (c)  after ceasing to be the partner of the other person, the person has not again become a member of a couple; and

                     (d)  the person has a qualifying interest in a farm or farms in which the other person had a qualifying interest.

Note:          For qualifying interest see subsection (5).

             (3)  A person is a qualifying farmer if:

                     (a)  the person has, has not ceased to have, and has continuously had for a period of at least 15 years, a qualifying interest in a farm; and

                     (b)  during a period of 15 years, the person or the person’s partner:

                              (i)  has contributed a significant part of his or her labour and capital to the development of a farm or farms; and

                             (ii)  has derived a significant part of his or her income from that farm or those farms.

Note:          For qualifying interest see subsection (5).

             (4)  A person is also a qualifying farmer if:

                     (a)  the person has a qualifying interest in one or more than one farm; and

                     (b)  the qualifying interest in the farm, or each of the farms, was acquired by the person before 15 September 1997; and

                     (c)  the person or the person’s partner or former partner has been involved in farming in Australia for a continuous period of 20 years, or for periods that together add up to 20 years, by:

                              (i)  contributing a significant part of his or her labour to farm enterprises; and

                             (ii)  deriving a significant part of his or her income from farm enterprises.

Note:          For qualifying interest see subsection (5).

             (5)  A person has a qualifying interest in a farm if:

                     (a)  the person has a legal estate or interest in the farm; or

                     (b)  the person has a transferable legal right or a transferable licence to occupy the farm for a particular purpose of the farm enterprise; or

                     (c)  as the mortgagor of a legal estate or interest in the farm (being an estate or interest that is not registered under a relevant State land law), the person has an equitable estate or interest in the farm; or

                     (d)  the person is a shareholder in a proprietary company that has a legal estate or interest in the farm.

             (6)  A person has a qualifying interest in a relevant farm asset if the person:

                     (a)  has a legal interest in the farm asset; or

                     (b)  is a shareholder in a proprietary company that has a legal estate or interest in the farm asset.

             (7)  Subject to subsections (8), (10) and (11), a qualifying interest that a person has in a farm is transferred to another person if, and only if, the qualifying interest:

                     (a)  ceases to be vested in the person; and

                     (b)  becomes vested in the other person.

             (8)  To avoid any doubt, it is stated that if a person who transfers a legal estate or interest in a farm to another person is, under a relevant State land law, registered as being the proprietor (whether that word or any other word is used) of that estate or interest, the legal estate or interest in the farm is taken not to have become vested in the other person unless and until the transfer is registered in accordance with that law.

Note:          For relevant State land law see subsection (1).

             (9)  Subject to subsection (11), a qualifying interest that a person has in a relevant farm asset is transferred to another person if, and only if, the qualifying interest:

                     (a)  ceases to be vested in the person; and

                     (b)  becomes vested in the other person.

           (10)  If, as the mortgagor of a legal estate or interest in a farm (see paragraph (5)(c)), a person has a qualifying interest in the farm, the person is taken to have transferred that qualifying interest in the farm to another person only if the person:

                     (a)  has, under a relevant State land law, become registered as the proprietor (whether that word or any other word is used) of the legal estate or interest in the farm; and

                     (b)  has then transferred that legal estate or interest to the other person.

           (11)  If a person has a qualifying interest in a farm or a relevant farm asset because (see paragraphs (5)(d) and (6)(b)) the person is a shareholder in a proprietary company that has a legal estate or interest in the farm, or a legal interest in the relevant farm asset (as the case may be), the person is taken to have transferred to another person his or her qualifying interest in the farm or relevant farm asset only if the person:

                     (a)  has acquired the company’s legal estate or interest in the farm or the company’s legal interest in the relevant farm asset; and

                     (b)  has then transferred it to the other person.

17B  Retirement assistance for sugarcane farmers definitions

             (1)  In this Act, unless the contrary intention appears:

eligible former partner of a qualifying sugarcane farmer has the meaning given by subsection (2).

eligible interest has the meaning given by subsections (5) and (6).

qualifying sugarcane farmer has the meaning given by subsections (3) and (4).

RASF closing day has the meaning given by section 1185N.

RASF commencement day has the meaning given by section 1185N.

relevant sugarcane farm asset means any relevant farm asset that is a produce of, or is used for the purposes of, a sugarcane farm enterprise.

Note:          For relevant farm asset see subsection 17A(1).

sugarcane farm means a farm that is used predominantly for the purposes of a sugarcane farm enterprise.

Note:          For farm see subsection 17A(1).

sugarcane farm enterprise means a farm enterprise where:

                     (a)  a majority of the enterprise is undertaken for the purposes of growing commercial quantities of sugar cane; or

                     (b)  if paragraph (a) does not apply—a significant proportion of the enterprise is undertaken for the purposes of growing commercial quantities of sugar cane and the Secretary has determined, in accordance with any guidelines made by the Secretary for the purposes of this paragraph, that there are special circumstances that mean that the farm enterprise should be treated as an enterprise to which paragraph (a) applies.

Note:          For farm enterprise see subsection 17A(1).

total net value has the meaning given by section 1185S.

transfer:

                     (a)  in relation to an eligible interest in a sugarcane farm—has the meaning given by subsections (7), (8), (10), (11) and (12); or

                     (b)  in relation to an eligible interest in a relevant sugarcane farm asset—has the meaning given by subsections (9), (11) and (12).

Note:          Subsection 17A(1) also contains other definitions relevant to the operation of Part 3.14B.

             (2)  A person is an eligible former partner of a qualifying sugarcane farmer if:

                     (a)  the person was, but no longer is (whether because of death or any other reason), the partner of another person; and

                     (b)  on the day on which the person ceased to be the partner of the other person, the other person was a qualifying sugarcane farmer; and

                     (c)  after ceasing to be the partner of the other person, the person has not again become a member of a couple; and

                     (d)  the person has an eligible interest in a sugarcane farm or sugarcane farms in which the other person had an eligible interest.

Note:          For eligible interest see subsection (5).

             (3)  A person is a qualifying sugarcane farmer if:

                     (a)  the person has, has not ceased to have, and has continuously had for a period of at least 15 years, an eligible interest in a farm; and

                     (b)  the farm is a sugarcane farm and has been a sugarcane farm:

                              (i)  for at least the last 2 years; and

                             (ii)  at all times since 29 April 2004; and

                     (c)  during a period of 15 years, the person or the person’s partner:

                              (i)  has contributed a significant part of his or her labour and capital to the development of a farm or farms; and

                             (ii)  has derived a significant part of his or her income from that farm or those farms; and

                     (d)  during at least the last 2 years:

                              (i)  that contribution of labour and capital has been to the development of a sugarcane farm or sugarcane farms; and

                             (ii)  that derivation of income has been from that sugarcane farm or those sugarcane farms.

Note:          For eligible interest see subsection (5).

             (4)  A person is also a qualifying sugarcane farmer if:

                     (a)  the person has an eligible interest in one or more than one sugarcane farm; and

                     (b)  the eligible interest in the farm, or each of the farms, was acquired by the person before 29 April 2004; and

                     (c)  the person or the person’s partner or former partner has been involved in farming in Australia for a continuous period of 20 years, or for periods that together add up to 20 years, by:

                              (i)  contributing a significant part of his or her labour to farm enterprises; and

                             (ii)  deriving a significant part of his or her income from farm enterprises; and

                     (d)  during at least the last 2 years:

                              (i)  that contribution of labour has been to sugarcane farm enterprises; and

                             (ii)  that derivation of income has been from sugarcane farm enterprises.

Note:          For eligible interest see subsection (5).

             (5)  A person has an eligible interest in a sugarcane farm if:

                     (a)  the person has a legal estate or interest in the farm; or

                     (b)  the person has a transferable legal right or a transferable licence to occupy the farm for a particular purpose of the farm enterprise; or

                     (c)  as the mortgagor of a legal estate or interest in the farm (being an estate or interest that is not registered under a relevant State land law), the person has an equitable estate or interest in the farm; or

                     (d)  the person is a shareholder in a proprietary company that has a legal estate or interest in the farm; or

                     (e)  the value of the person’s assets includes an amount calculated (in accordance with section 1208E) by reference to the value of the farm.

Note:          The eligible interest in a sugarcane farm that is relevant for the operation of Part 3.14B is the interest held by a person immediately before that interest is transferred to an eligible descendant. So, for example, to find out whether an interest is covered by paragraph (e), the provisions of Part 3.18 must be applied in relation to the person’s circumstances as they were immediately before the transfer.

             (6)  A person has an eligible interest in a relevant sugarcane farm asset if:

                     (a)  the person has a legal interest in the relevant farm asset; or

                     (b)  the person is a shareholder in a proprietary company that has a legal estate or interest in the relevant farm asset; or

                     (c)  the value of the person’s assets includes an amount calculated (in accordance with section 1208E) by reference to the value of the relevant farm asset.

Note:          The eligible interest in a relevant sugarcane farm asset that is relevant for the operation of Part 3.14B is the interest held by a person immediately before that interest is transferred to an eligible descendant. So, for example, to find out whether an interest is covered by paragraph (c), the provisions of Part 3.18 must be applied in relation to the person’s circumstances as they were immediately before the transfer.

             (7)  Subject to subsections (8), (10), (11) and (12), an eligible interest that a person has in a sugarcane farm is transferred to another person if, and only if, the eligible interest:

                     (a)  ceases to be vested in the person; and

                     (b)  becomes vested in the other person.

             (8)  To avoid any doubt, it is stated that if a person who transfers a legal estate or interest in a sugarcane farm to another person is, under a relevant State land law, registered as being the proprietor (whether that word or any other word is used) of that estate or interest, the legal estate or interest in the farm is taken not to have become vested in the other person unless and until the transfer is registered in accordance with that law.

Note:          For relevant State land law see subsection 17A(1).

             (9)  Subject to subsections (11) and (12), an eligible interest that a person has in a relevant sugarcane farm asset is transferred to another person if, and only if, the eligible interest:

                     (a)  ceases to be vested in the person; and

                     (b)  becomes vested in the other person.

           (10)  If, as the mortgagor of a legal estate or interest in a sugarcane farm (see paragraph (5)(c)), a person has an eligible interest in the farm, the person is taken to have transferred that eligible interest in the farm to another person only if the person:

                     (a)  has, under a relevant State land law, become registered as the proprietor (whether that word or any other word is used) of the legal estate or interest in the farm; and

                     (b)  has then transferred that legal estate or interest to the other person.

           (11)  If a person has an eligible interest in a sugarcane farm or a relevant sugarcane farm asset because (see paragraphs (5)(d) and (6)(b)) the person is a shareholder in a proprietary company that has a legal estate or interest in the farm, or a legal interest in the relevant farm asset (as the case may be), the person is taken to have transferred to another person his or her eligible interest in the farm or relevant farm asset only if the person:

                     (a)  has acquired the company’s legal estate or interest in the farm or the company’s legal interest in the relevant farm asset; and

                     (b)  has then transferred it to the other person.

           (12)  An eligible interest that a person (the first person) has in a sugarcane farm or a relevant sugarcane farm asset because (see paragraphs (5)(e) and (6)(c)) the value of the first person’s assets includes an amount calculated (in accordance with section 1208E) by reference to the value of the farm or relevant farm asset is transferred to another person if:

                     (a)  the first person is divested of that eligible interest; and

                     (b)  as a result, the other person gains an eligible interest in the farm or relevant farm asset of a value that is referrable to the full value of the eligible interest divested.

           (13)  To avoid doubt, if:

                     (a)  a person is able to transfer an eligible interest under either subsection (11) or (12); and

                     (b)  the person transfers that interest under subsection (12);

the person is not required to meet the requirements of subsection (11) in relation to the transfer.

18  Parenting payment definitions

                   In this Act, unless the contrary intention appears:

benefit PP (partnered) means parenting payment whose rate is worked out under the Benefit PP (Partnered) Rate Calculator in section 1068B.

non‑benefit PP (partnered) means non‑benefit PP (partnered) under this Act as in force immediately before the commencement of the A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 1) 1999.

parenting payment means:

                     (a)  pension PP (single); or

                     (b)  benefit PP (partnered).

pension PP (single) means parenting payment whose rate is worked out under the Pension PP (Single) Rate Calculator in section 1068A.

19  Mobility allowance definitions

                   In this Act, unless the contrary intention appears:

gainful employment means:

                     (a)  paid employment (including sheltered employment); and

                     (b)  self‑employment that is intended to result in financial gain.

handicapped person means a person who:

                     (a)  has a physical or mental disability; and

                     (b)  has turned 16.

sheltered employment means paid employment in respect of which a direction under section 32 or 33 is in force.

vocational training includes training for a profession or occupation and, where used in Part 2.21 (Mobility allowance), also includes training known as independent living skills or life skills training.

19A  Fares allowance definitions

             (1)  This section has effect for the purposes of Part 2.26.

             (2)  Unless the contrary intention appears:

activity test means the test set out in section 541.

approved course has the meaning given by subsection 1061ZAAA(1).

approved tertiary course means a course of education or study that is determined, under section 5D of the Student Assistance Act 1973, to be a tertiary course for the purposes of that Act.

external student, in relation to an approved course at a relevant educational institution, means a student enrolled for the course who is subject to a requirement, being a requirement that is a compulsory component of the course, to attend the institution for a period of time.

independent has the same meaning as in Parts 2.11 and 3.5 (see section 1067A).

permanent home has the meaning given by subsections (3) to (6).

public transport does not include a taxi.

relevant educational institution has the meaning given by subsection 1061ZAAA(1).

required to live away from his or her permanent home has the meaning given by subsection (7).

study year means the period in which one complete year of an approved tertiary course (as defined by this subsection) starts and finishes.

             (3)  Subject to subsection (5), if a person is receiving youth allowance and is not independent, the person’s permanent home is the home of the parent whose income components are assessed under Submodule 4 of Module F of the Youth Allowance Rate Calculator in section 1067G.

             (4)  Subject to subsection (5), if subsection 1061ZAAA(5) applies to a person, the person’s permanent home is the home of the parent whose income components were assessed, immediately before the person became independent, under Submodule 4 of Module F of the Youth Allowance Rate Calculator in section 1067G.

             (5)  If the parent uses more than one home, the person’s permanent home is:

                     (a)  the home that the parent uses most frequently; or

                     (b)  if the parent uses more than one home for equal periods, the home that the person nominates.

             (6)  The permanent home of a person to whom none of the preceding subsections applies is the person’s usual place of residence.

             (7)  A person is taken to be required to live away from his or her permanent home in order to undertake an approved tertiary course of education or study if:

                     (a)  the person is not independent; and

                     (b)  the person does not live at the person’s permanent home; and

                     (c)  the Secretary determines that the person needs to live away from the person’s permanent home in order to undertake the course.

19AA  Fares allowance definitions

             (1)  This section has effect for the purposes of Part 2.26.

             (2)  Unless the contrary intention appears:

activity test means the test set out in section 541.

approved course has the meaning given by subsection 1061ZAAA(1).

approved tertiary course means a course of education or study that is determined, under section 5D of the Student Assistance Act 1973, to be a tertiary course for the purposes of that Act.

external student, in relation to an approved course at a relevant educational institution, means a student enrolled for the course who is subject to a requirement, being a requirement that is a compulsory component of the course, to attend the institution for a period of time.

independent has the same meaning as in Parts 2.11 and 3.5 (see section 1067A).

permanent home has the meaning given by subsections (3) to (6).

public transport does not include a taxi.

relevant educational institution has the meaning given by subsection 1061ZAAA(1).

required to live away from his or her permanent home has the meaning given by subsection (7).

study year means the period in which one complete year of an approved tertiary course (as defined by this subsection) starts and finishes.

             (3)  Subject to subsection (5), if a person is receiving youth allowance, and is not independent, the person’s permanent home is the home of the parent whose income components are assessed under Submodule 4 of Module F of the Youth Allowance Rate Calculator in section 1067G.

             (4)  Subject to subsection (5), if subsection 1061ZAAA(5) applies to a person, the person’s permanent home is the home of the parent whose income components were assessed, immediately before the person became independent, under Submodule 4 of Module F of the Youth Allowance Rate Calculator in section 1067G.

             (5)  If the parent uses more than one home, the person’s permanent home is:

                     (a)  the home that the parent uses most frequently; or

                     (b)  if the parent uses more than one home for equal periods, the home that the person nominates.

             (6)  The permanent home of a person to whom none of the preceding subsections apply is the person’s usual place of residence.

             (7)  A person is taken to be required to live away from his or her permanent home in order to undertake an approved tertiary course of education or study if:

                     (a)  the person is not independent; and

                     (b)  the person does not live at the person’s permanent home; and

                     (c)  the Secretary determines that the person needs to live away from the person’s permanent home in order to undertake the course.

19AB  Student Financial Supplement Scheme definitions

             (1)  This section has effect for the purposes of Chapter 2B.

             (2)  Unless the contrary intention appears:

accumulated FS debt has the meaning given by section 1061ZZEQ.

adjusted accumulated FS debt has the meaning given by section 1061ZZES.

amount notionally repaid has the meaning given by subsection 1061ZZCN(5) or (7), as applicable.

amount outstanding has the meaning given by section 1061ZZCG or 1061ZZCH, as applicable.

amount repaid has the meaning given by subsection 1061ZZCJ(3), as affected by section 1061ZZCL.

approved course of education or study has the same meaning as in subsection 541B(5).

Note:          This expression is used, with the same meaning, in sections 569B and 1061PC.

austudy payment general rate has the meaning given by subsection (3).

AWE has the meaning given by section 1061ZZFF.

category 1 student has the meaning given by section 1061ZZ.

category 2 student has the meaning given by section 1061ZZA.

Commissioner means Commissioner of Taxation.

Commissioner of Taxation includes a Second Commissioner of Taxation and a Deputy Commissioner of Taxation.

compulsory repayment amount means an amount that:

                     (a)  is required to be paid in respect of an accumulated FS debt under section 1061ZZEZ; and

                     (b)  is included in a notice of an assessment made under section 1061ZZFH.

contract period of a financial supplement contract has the meaning given by subsection 1061ZZAX(7) or 1061ZZAY(3).

cooling off period means a period referred to in section 1061ZZBD.

discount has the meaning given by section 1061ZZCM.

earlier date has the meaning given by paragraph 1061ZZEQ(2)(b).

eligibility period for a person means an eligibility period under section 1061ZY and includes an eligibility period for the purposes of the Social Security Student Financial Supplement Scheme 1998.

exempt foreign income has the meaning given by subsection 1061ZZFA(4).

financial corporation means:

                     (a)  a foreign corporation within the meaning of paragraph 51(xx) of the Constitution whose sole or principal business activities in Australia are the borrowing of money and the provision of finance; or

                     (b)  a financial corporation within the meaning of that paragraph;

and includes a bank.

financial supplement contract means a contract referred to in subsection 1061ZZAX(2) or 1061ZZAY(1).

FS assessment debt means an amount that is required to be paid in respect of an accumulated FS debt under section 1061ZZEZ and is included in an assessment made under Division 7 of Part 2B.3 or under the corresponding provision of the Social Security Student Financial Supplement Scheme 1998 or of the Student Assistance Act 1973 as in force at a time before 1 July 1998.

FS debt has the meaning given by section 1061ZZEO.

income tax has the meaning given by subsection 995‑1(1) of the Income Tax Assessment Act 1997.

income tax law has the meaning given by section 14ZAAA of the Taxation Administration Act 1953.

income year has the meaning given by subsection 995‑1(1) of the Income Tax Assessment Act 1997.

index number for a quarter means the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician for the quarter.

intending to undertake a course: see subsection (5).

interest subsidy, in relation to financial supplement paid to a person by a participating corporation under a financial supplement contract, means the part of any subsidy paid by the Commonwealth to the corporation, without cost to the person, in respect of the supplement under the agreement entered into with the corporation under section 1061ZZAG, that is in lieu of interest.

later date has the meaning given by paragraph 1061ZZEQ(1)(a) or (2)(a), as the case requires.

maximum amount of financial supplement has the meaning given by section 1061ZZAK or 1061ZZAO, as the case requires, as affected by section 1061ZZAQ.

Medicare levy means the Medicare levy imposed by the Medicare Levy Act 1986.

minimum amount of financial supplement has the meaning given by section 1061ZZAP.

minimum repayment income has the meaning given by section 1061ZZFB.

office means a branch office but does not include an agency or administrative office.

original amount has the meaning given by subsection 1061ZZCW(1).

overpayment, for a person in relation to an eligibility period, means either of the following:

                     (a)  a debt or overpayment that is to be recovered under Chapter 5 from the person during the eligibility period;

                     (b)  an amount the person is liable to pay to the Commonwealth under section 1061ZZDE, 1061ZZDL, 1061ZZDV or 1061ZZEE that the Secretary has decided is to be recovered during the eligibility period.

participating corporation has the meaning given by subsection 1061ZZAG(3).

principal sum, at a time during the contract period of a financial supplement contract, means the total of the amounts of financial supplement paid under the contract before that time by the participating corporation to the other party to the contract.

repayable debt, for an income year, has the meaning given by section 1061ZZFC.

repayment income has the meaning given by section 1061ZZFA.

revised amount has the meaning given by subsection 1061ZZCW(1).

saved amount means an amount referred to in subsection 1061ZZBO(3).

short course means a tertiary course that is designed to be completed in, at most, 30 weeks (including vacations).

Social Security Student Financial Supplement Scheme 1998 means the scheme of that name established by the Minister under Chapter 2B of this Act as in force before the commencement of this section.

supplement entitlement notice given to a person means a notice given to the person under subsection 1061ZZAC(3) or 1061ZZAD(4), or a notice referred to in subsection 1061ZZAE(3).

taxable income has the meaning given by section 4‑15 of the Income Tax Assessment Act 1997.

termination date of a financial supplement contract means the date set out in the contract under subsection 1061ZZAX(6) or as mentioned in subsection 1061ZZAY(2).

termination notice means a notice given under section 1061ZZCQ or under the corresponding provision of the Social Security Student Financial Supplement Scheme 1998 or of the Student Assistance Act 1973 as in force at a time before 1 July 1998.

tertiary course means a tertiary course that is an approved course of education or study.

trade back has the meaning given by section 1061ZZAT.

trade in has the meaning given by section 1061ZZAR.

undertaking a course: see subsection (5).

wrongly paid supplement has the meaning given by subsections 1061ZZDB(4), 1061ZZDI(4), 1061ZZDS(4) and 1061ZZEC(4).

year means a calendar year.

year of income has the same meaning as in the Income Tax Assessment Act 1936.

youth allowance general rate has the meaning given by subsection (4).

             (3)  A person’s austudy payment general rate is the rate of austudy payment that would be payable to the person if the rate were worked out:

                     (a)  using the Austudy Payment Rate Calculator; and

                     (b)  not including any amount as pharmaceutical allowance or remote area allowance.

             (4)  A person’s youth allowance general rate is the rate of youth allowance that would be payable to the person if the rate were worked out:

                     (a)  using the Youth Allowance Rate Calculator; and

                     (b)  not including any amount as pharmaceutical allowance, rent assistance or remote area allowance.

             (5)  The question whether a person is intending to undertake a course or is undertaking a course is to be determined, so far as practicable and with any necessary changes, in the same way as the question whether a person is intending to undertake study or is undertaking study, as the case may be, is determined under section 541B.

19B  Financial hardship (Carer payment) liquid assets test definition

                   In section 198N (exemption from care receiver assets test):

liquid assets, in relation to a person, means:

                     (a)  the person’s cash; and

                     (b)  the person’s shares and debentures in a public company within the meaning of the Corporations Act 2001; and

                     (c)  any amount deposited with, or lent to, a bank or other financial institution by the person (whether or not the amount can be withdrawn or repaid immediately); and

                     (d)  any amount due, and able to be paid, to the person by, or on behalf of, a former employer of the person; and

                     (e)  any other readily realisable assets of the person;

but does not include:

                      (f)  a roll‑over superannuation benefit (within the meaning of the Income Tax Assessment Act 1997); or

                    (fa)  a superannuation lump sum (within the meaning of that Act) that is a contributions‑splitting superannuation benefit (within the meaning of that Act); or

                    (fb)  a directed termination payment (within the meaning of section 82‑10F of the Income Tax (Transitional Provisions) Act 1997); or

                    (fc)  the surrender value of a life policy (within the meaning of the Life Insurance Act 1995); or

                     (g)  an amount of an AGDRP that the person received, if the Secretary is satisfied that the length of time since receiving the payment is still reasonable in the circumstances.

19C  Severe financial hardship definitions

Application of definitions in this section

             (1)  The definitions in this section relate to:

                     (a)  ordinary waiting periods; and

                     (b)  liquid assets test waiting periods; and

                     (c)  seasonal work preclusion periods; and

                     (d)  income maintenance periods.

Meaning of in severe financial hardship: person who is not a member of a couple

             (2)  A person who is not a member of a couple and who makes a claim for parenting payment, austudy payment, special benefit, disability support pension, carer payment or one of the following allowances:

                     (a)  newstart allowance;

                     (b)  widow allowance;

                     (c)  mature age allowance;

                     (d)  sickness allowance;

                     (e)  youth allowance;

is in severe financial hardship if the value of the person’s liquid assets (within the meaning of subsection 14A(1)) is less than the fortnightly amount at the maximum payment rate of the payment, benefit, pension or allowance that would be payable to the person:

                      (f)  if the person’s claim were granted; and

                     (g)  in the case of a person to whom an income maintenance period applies, if that period did not apply.

Note:          For maximum payment rate see subsection (8).

Meaning of in severe financial hardship: person who is a member of a couple

             (3)  A member of a couple who makes a claim for parenting payment, austudy payment, special benefit, disability support pension, carer payment or one of the following allowances:

                     (a)  newstart allowance;

                     (b)  partner allowance;

                     (c)  mature age allowance;

                     (d)  sickness allowance;

                     (e)  youth allowance;

is in severe financial hardship if the value of the couple’s liquid assets (within the meaning of subsections 14A(1) and (2)) is less than twice the fortnightly amount at the maximum payment rate of the payment, benefit, pension or allowance that would be payable to the person:

                      (f)  if the person’s claim were granted; and

                     (g)  in the case of a person to whom an income maintenance period applies, if that period did not apply.

Note:          For maximum payment rate see subsection (8).

Meaning of unavoidable or reasonable expenditure

             (4)  Unavoidable or reasonable expenditure, in relation to a person who is serving a liquid assets test waiting period or is subject to a seasonal work preclusion period, or a person to whom an income maintenance period applies, includes, but is not limited to, the following expenditure:

                     (a)  the reasonable costs of living that the person is taken, under subsection (6) or (7), to have incurred in respect of:

                              (i)  if the person is serving a liquid assets test waiting period—that part of the period that the person has served; or

                             (ii)  if the person is subject to a seasonal work preclusion period—that part of the period that has expired; or

                            (iii)  if an income maintenance period applies to the person—that part of the period that has already applied to the person;

                     (b)  the costs of repairs to, or replacement of, essential whitegoods situated in the person’s home;

                     (c)  school expenses;

                     (d)  funeral expenses;

                     (e)  essential expenses arising on the birth of the person’s child or the adoption of a child by the person;

                      (f)  expenditure to buy replacement essential household goods because of loss of those goods through theft or natural disaster when the cost of replacement is not the subject of an insurance policy;

                     (g)  the costs of essential repairs to the person’s car or home;

                     (h)  premiums in respect of vehicle or home insurance;

                      (i)  expenses in respect of vehicle registration;

                      (j)  essential medical expenses;

                     (k)  any other costs that the Secretary determines are unavoidable or reasonable expenditure in the circumstances in relation to a person.

However, unavoidable or reasonable expenditure does not include any reasonable costs of living other than those referred to in paragraph (a).

Meaning of reasonable costs of living

             (5)  The reasonable costs of living of a person include, but are not limited to, the following costs:

                     (a)  food costs;

                     (b)  rent or mortgage payments;

                     (c)  regular medical expenses;

                     (d)  rates, water and sewerage payments;

                     (e)  gas, electricity and telephone bills;

                      (f)  costs of petrol for the person’s vehicle;

                     (g)  public transport costs;

                     (h)  any other cost that the Secretary determines is a reasonable cost of living in relation to a person.

             (6)  For the purposes of paragraph (4)(a), the amount of reasonable costs of living that a person who is not a member of a couple is taken to have incurred, may not exceed:

                     (a)  in the case of a person who is serving a liquid assets test waiting period—the amount of allowance that would have been payable to the person during that part of the waiting period that the person has already served, if the person were not subject to the period; or

                     (b)  in the case of a person who is subject to a seasonal work preclusion period—the amount of allowance that would have been payable to the person during that part of the person’s preclusion period that has already expired, if the person were not subject to the period; or

                     (c)  in the case of a person to whom an income maintenance period applies—the amount of allowance or parenting payment (as the case may be) that would have been payable to the person during that part of the income maintenance period that has already applied to the person, if the period did not apply to the person.

             (7)  For the purposes of paragraph (4)(a), the amount of reasonable costs of living that a person who is a member of a couple is taken to have incurred, may not exceed:

                     (a)  in the case of a person who is serving a liquid assets test waiting period—twice the amount of allowance that would have been payable to the person during that part of the waiting period that the person has already served, if the person were not subject to the period; or

                     (b)  in the case of a person who is subject to a seasonal work preclusion period—twice the amount of allowance or parenting payment (as the case may be) that would have been payable to the person during that part of the person’s preclusion period that has already expired, if the person were not subject to the period; or

                     (c)  in the case of a person to whom an income maintenance period applies—twice the amount of allowance or parenting payment (as the case may be) that would have been payable to the person during that part of the income maintenance period that has already applied to the person, if the period did not apply to the person.

Meaning of maximum payment rate

             (8)  For the purposes of subsections (2) and (3), maximum payment rate:

                    (aa)  in relation to disability support pension—means the rate worked out at:

                              (i)  Step 4 of the Method statement in Module A of Pension Rate Calculator A; or

                             (ii)  Step 5 of the Method statement in Module A of Pension Rate Calculator D; or

                   (ab)  in relation to carer payment—means the rate worked out at Step 4 of the Method statement in Module A of Pension Rate Calculator A; or

                     (a)  in relation to sickness allowance—means the rate worked out at Step 4 of the Method statement in Module A of the applicable rate calculator; or

                     (b)  in relation to newstart allowance and, if the person has turned 21, in relation to special benefit—means the rate worked out at Step 4 of the Method statement in Module A of the applicable rate calculator; or

                     (c)  in relation to youth allowance and, if the person has not turned 21, in relation to special benefit—means the maximum payment rate worked out at Step 4 of the Method statement in Module A of the Youth Allowance Rate Calculator in section 1067G; or

                    (ca)  in relation to austudy payment—means the maximum payment rate worked out at Step 3 of the Method statement in Module A of the Austudy Payment Rate Calculator in section 1067L; or

                     (d)  in relation to widow allowance, partner allowance and mature age allowance under Part 2.12B—means the rate worked out at Step 4 of the method statement in Module A of Benefit Rate Calculator B; or

                   (da)  in relation to pension PP (single)—means the rate worked out at Step 4 of the method statement in point 1068A‑A1 in Module A of the Pension PP Rate Calculator; or

                     (e)  in relation to benefit PP (partnered)—means the rate worked out at step 4 of whichever of the method statements in points 1068B‑A2 and 1068B‑A3 in Module A of the Benefit PP (Partnered) Rate Calculator is applicable to the person.

Note 1:       The Sickness Benefit Rate Calculator, Benefit Rate Calculator A and Benefit Rate Calculator B apply to the calculation of sickness allowance depending on the circumstances of the person claiming the allowance.

Note 2:       Benefit Rate Calculator A (under 18) and Benefit Rate Calculator B (over 18) apply to the calculation of newstart allowance.

Secretary to give notice of determination

           (10)  If the Secretary makes a determination in relation to a person under paragraph (4)(k) or paragraph (5)(h), the Secretary must give written notice of the determination to the person.

19D  Severe financial hardship—crisis payment definition

             (1)  The definition in this section relates to one of the qualifications for crisis payment (see sections 1061JG, 1061JH, 1061JHA and 1061JI).

             (2)  A person who is not a member of a couple is in severe financial hardship for the purposes of qualifying for a crisis payment if the value of the person’s liquid assets (within the meaning of subsection 14A(1)) is less than the fortnightly amount at the maximum payment rate of the social security pension or the social security benefit that is payable to the person.

             (3)  A person who is a member of a couple is in severe financial hardship for the purposes of qualifying for a crisis payment if the value of the person’s liquid assets (within the meaning of subsections 14A(1) and (2)) is less than twice the fortnightly amount at the maximum payment rate of the social security pension or the social security benefit that is payable to the person.

             (4)  For the purposes of working out whether a CDEP Scheme participant is in severe financial hardship as defined in this section, the maximum payment rate of social security pension or social security benefit that would have been payable to the participant if he or she had not been a CDEP Scheme participant is taken to be payable to the participant.

Note:          For CDEP Scheme Participant see section 1188B.

             (5)  In this section:

maximum payment rate, in relation to each of the following social security payments, means (unless otherwise stated below) the rate worked out at Step 4 of the Method statement in Module A of the relevant Rate Calculator:

                     (a)  for the following pensions if the recipient is not blind:

                              (i)  age pension;

                             (ii)  disability support pension (recipient has turned 21, or is under 21 and has one or more dependent children);

                            (iii)  carer pension;

                            (iv)  wife pension;

                            the Rate Calculator at the end of section 1064; or

                     (b)  for age pension and disability support pension (recipient has turned 21, or is under 21 and has one or more dependent children) if the recipient is blind—the Rate Calculator at the end of section 1065; or

                     (c)  for widow B pension—the Rate Calculator at the end of section 1066; or

                     (d)  for disability support pension if the recipient is under 21, is not blind and does not have any dependent children—Step 5 of the Method statement in Module A of the Rate Calculator at the end of section 1066A; or

                     (e)  for disability support pension if the recipient is under 21, is blind and does not have any dependent children—Step 5 of the Method statement in Module A of the Rate Calculator at the end of section 1066B; or

                      (f)  for the following allowances:

                              (i)  newstart allowance;

                             (ii)  widow allowance;

                            (iii)  sickness allowance;

                            (iv)  partner allowance;

                             (v)  mature age allowance granted under Part 2.12B;

                            the Rate Calculator at the end of section 1068; or

                     (g)  for mature age allowance granted under Part 2.12A—the Rate Calculator at the end of section 1064; or

                     (h)  for a pension PP (single)—the Rate Calculator at the end of section 1068A; or

                      (i)  for benefit PP (partnered)—point 1068B‑A4; or

                      (j)  for mature age partner allowance—the Rate Calculator at the end of section 1064; or

                     (k)  for special benefit—section 746; or

                      (l)  for youth allowance—the Rate Calculator at the end of section 1067G; or

                    (m)  for austudy payment—Step 3 of the Method statement in Module A of the Rate Calculator at the end of section 1067L.

19E  Exempt funeral investments

             (1)  Work out whether a funeral investment that relates to a particular funeral is an exempt funeral investment by applying these rules:

                     (a)  the expenses for the funeral must not be prepaid; and

                     (b)  in relation to that funeral:

                              (i)  only one investment of not more than $10,000 can be an exempt funeral investment; or

                             (ii)  only two investments that combined are not more than $10,000 can be exempt funeral investments.

Note:          The amounts in paragraph (1)(b) are indexed each year on 1 July (see Division 2 of Part 3.16).

             (2)  Disregard any return on an investment in determining the amount of an investment for the purposes of this section.

             (3)  For the purposes of subsection (1), a funeral investment means an investment, being an investment that cannot be realised before maturity and the return on which is not payable before maturity, that:

                     (a)  matures on the death of whichever member of a couple dies first or dies last and is to be applied on maturity to the expenses of the funeral of that member of the couple; or

                     (b)  matures on the death of:

                              (i)  the investor; or

                             (ii)  if the investor is a member of a couple at the time the investment is made, the investor’s partner at that time;

                            and is to be applied on maturity to the expenses of the funeral of the person on whose death it matures.

20  Indexation and rate adjustment definitions

             (1)  In this Act, unless the contrary intention appears:

current figure, as at a particular time and in relation to an amount that is to be indexed or adjusted under Part 3.16, means:

                     (a)  if the amount has not yet been indexed or adjusted under Part 3.16 before that time—the amount; and

                     (b)  if the amount has been indexed or adjusted under Part 3.16 before that time—the amount most recently substituted for the amount under Part 3.16 before that time.

index number, in relation to a quarter, means the All Groups Consumer Price Index number that is the weighted average of the 8 capital cities and is published by the Australian Statistician in respect of that quarter.

November earnings average, in relation to a year, means the amount called the “All Employees—Average Weekly Total Earnings—Persons” published by the Australian Statistician in respect of a period ending on or before a particular day in November in that year but does not include a preliminary estimate of that amount.

Publication of substituted index numbers

             (4)  Subject to subsection (5), if at any time (whether before or after the commencement of this section), the Australian Statistician publishes an index number for a quarter in substitution for an index number previously published by the Australian Statistician for that quarter, the publication of the later index number is to be disregarded for the purposes of this section.

Change to CPI reference base

             (5)  If at any time (whether before or after the commencement of this section) the Australian Statistician changes the reference base for the Consumer Price Index, regard is to be had, for the purposes of applying this section after the change takes place, only to index numbers published in terms of the new reference base.

Publication of substituted AWE amount

             (6)  If at any time (whether before or after the commencement of this section) the Australian Statistician publishes an amount in substitution for a November earnings average previously published by the Australian Statistician, for that year, the publication of the later amount is to be disregarded for the purposes of this section.

20A  Pension supplement rate definitions

             (1)  The combined couple rate of pension supplement is the sum of the following:

                     (a)  4 times the annual rate of utilities allowance for a person who is a member of a couple (other than an illness separated couple, respite care couple or temporarily separated couple);

                     (b)  twice the annual rate of telephone allowance for a person:

                              (i)  to whom section 1061SB (increased rate for home internet) applies; and

                             (ii)  who is partnered (partner getting pension or benefit, and partner getting telephone allowance at the increased rate);

                     (c)  twice the annual rate of pharmaceutical allowance for a person who is partnered;

                     (d)  twice the pension supplement basic amount for a person who is partnered;

                     (e)  if $525.20 exceeds twice the annual rate of utilities allowance for a person who is a member of a couple (other than an illness separated couple, respite care couple or temporarily separated couple)—the amount of the excess;

rounded up to the nearest multiple of $5.20.

Note 1:       This rate is indexed 6 monthly in line with CPI increases (see sections 1191 to 1194).

Note 2:       This rate is an annual rate.

             (2)  The combined couple rate of minimum pension supplement is the sum of the following:

                     (a)  4 times the annual rate of utilities allowance for a person who is a member of a couple (other than an illness separated couple, respite care couple or temporarily separated couple);

                     (b)  twice the annual rate of telephone allowance for a person:

                              (i)  to whom section 1061SB (increased rate for home internet) applies; and

                             (ii)  who is partnered (partner getting pension or benefit, and partner getting telephone allowance at the increased rate);

rounded up to the nearest multiple of $5.20.

Note 1:       This rate is indexed 6 monthly in line with CPI increases (see sections 1191 to 1194).

Note 2:       This rate is an annual rate.

             (3)  For the purposes of subsection (1) or (2), a rate mentioned in a paragraph of that subsection is that rate as at 20 September 2009.

Note:          Those subsections adopt those rates as indexed on 20 September 2009.

             (4)  A person’s minimum pension supplement amount is the amount worked out by:

                     (a)  applying the applicable percentage in the following table to the combined couple rate of minimum pension supplement; and

                     (b)  if:

                              (i)  the person is not partnered; and

                             (ii)  the amount resulting from paragraph (a) is not a multiple of $2.60;

                            rounding the amount up or down to the nearest multiple of $2.60 (rounding up if the amount is not a multiple of $2.60 but is a multiple of $1.30).

 

Item

Person’s family situation

Use this %

1

Not member of couple

66.33%

2

Partnered

50%

3

Member of illness separated couple

66.33%

4

Member of respite care couple

66.33%

5

Partnered (partner in gaol)

66.33%

Note:          A person’s minimum pension supplement amount is an annual rate.

             (5)  A person’s pension supplement basic amount depends on which family situation in the following table applies to the person. The person’s pension supplement basic amount immediately before 20 September 2009 is the corresponding amount set out in the table.

 

Item

Person’s family situation

Amount as at 19 September 2009

1

Not member of couple

$507

2

Partnered

$423.80

3

Member of illness separated couple

$507

4

Member of respite care couple

$507

5

Partnered (partner in gaol)

$507

Note 1:       The amount in each item of the table will be indexed on 20 September 2009 in line with any increase in CPI (see subsection 1192(3C)).

Note 2:       For the purposes of provisions other than subsection (1), each of those indexed amounts will be further indexed 6 monthly in line with CPI increases (see sections 1191 to 1194).

Note 3:       A person’s pension supplement basic amount is an annual rate.

             (6)  The daily rate of tax‑exempt pension supplement, for a person who is receiving a social security payment calculated for that day using a pension supplement amount, is the amount worked out as follows:

                     (a)  subtract the person’s pension supplement basic amount from:

                              (i)  if the Rate Calculator produces an annual rate—the person’s pension supplement amount; or

                             (ii)  if the Rate Calculator produces a fortnightly rate—26 times the person’s pension supplement amount;

                     (b)  divide the result of paragraph (a) by 364.

Note:          The portion of the person’s social security payment equal to the tax‑exempt pension supplement is exempt from income tax (see sections 52‑10 and 52‑15 of the Income Tax Assessment Act 1997).

21  Bereavement definitions

             (1)  In this Act, unless the contrary intention appears:

partner bereavement payment means a payment under
section 83, 146G, 189, 238, 514B, 660YKD, 771NW or 823.

             (2)  For the purposes of this Act, if a person dies:

                     (a)  the bereavement period in relation to the person’s death is the period of 14 weeks that starts on the day on which the person dies; and

                     (b)  the bereavement notification day in relation to the person’s death is the day on which the Secretary becomes aware of the death; and

                     (c)  the first available bereavement adjustment payday in relation to the person’s death is the first payday of the person after the bereavement notification day for which it is practicable to terminate or adjust payments under this Act to take account of the person’s death; and

                     (d)  the bereavement rate continuation period in relation to the person’s death is the period:

                              (i)  that begins on the day on which the bereavement period begins; and

                             (ii)  that ends:

                                        (A)  if the first available bereavement adjustment payday is before the end of the bereavement period—on the day before the first available bereavement adjustment payday; or

                                        (B)  if the first available bereavement adjustment payday occurs on or after the day on which the bereavement period ends—the day on which the bereavement period ends; and

                     (e)  there is a bereavement lump sum period in relation to the person’s death if the first available bereavement adjustment payday occurs before the end of the bereavement period and the bereavement lump sum period is the period that begins on the first available bereavement adjustment payday and ends on the day on which the bereavement period ends.

22  Review of decisions definitions

                   In this Act, unless the contrary intention appears:

AAT means the Administrative Appeals Tribunal.

AAT Act means the Administrative Appeals Tribunal Act 1975.

review, in relation to Parts 2 and 3 of Schedule 3 to the Social Security (Administration) Act 1999, means a review:

                     (a)  by the SSAT under Division 3 of Part 4 of that Act; or

                     (b)  by the SSAT under Part 9 of the Student Assistance Act 1973.

SSAT means the Social Security Appeals Tribunal.

23  General definitions

             (1)  In this Act, unless the contrary intention appears:

1947 Act means the Social Security Act 1947.

Aboriginal or Torres Strait Islander child means a child who is a descendant of:

                     (a)  an Indigenous inhabitant of Australia; or

                     (b)  an Indigenous inhabitant of the Torres Strait Islands.

Aboriginal study assistance scheme means:

                     (a)  the ABSTUDY Scheme; or

                     (b)  the Aboriginal Overseas Study Assistance Scheme; or

                     (c)  a scheme prescribed for the purposes of this definition.

ABSTUDY means the ABSTUDY scheme to the extent that it provides means‑test allowances.

ABSTUDY Schooling scheme means the ABSTUDY Schooling part of the ABSTUDY scheme.

ABSTUDY Tertiary scheme means the ABSTUDY Tertiary part of the ABSTUDY scheme.

account, in relation to a financial institution, means an account maintained by a person with the institution to which is accredited money received on deposit by the institution from that person.

additional child amounts are the amounts set out in the table in point 1210‑A1A.

Administration Act means the Social Security (Administration) Act 1999.

advance payment qualifying amount, for a person, means:

                     (a)  if the person is receiving a social security pension worked out under Pension Rate Calculator A—the sum of the following amounts:

                              (i)  the person’s maximum basic rate;

                             (ii)  the amount (if any) by which the person’s pension supplement amount exceeds the person’s minimum pension supplement amount; or

                     (b)  otherwise—the result of paragraph (a) worked out as if the person were receiving a social security pension worked out under Pension Rate Calculator A.

adversely affected, in relation to a major disaster, has the meaning given by section 1061L.

AGDRP: see Australian Government Disaster Recovery Payment.

Agency means the Commonwealth Services Delivery Agency established by the Agency Act.

Agency Act means the Commonwealth Services Delivery Agency Act 1997.

applicable statutory conditions, in relation to particular work, means the minimum terms and conditions of employment (including wages) applicable under law in relation to that work.

approved friendly society means a society, person or body in relation to whom or in relation to which a determination under section 29 is in force.

approved program of work for income support payment means a program of work that is declared by the Employment Secretary, under section 28, to be an approved program of work for income support payment.

approved program of work supplement means:

                    (aa)  an amount under section 118 to a person receiving disability support pension; or

                     (a)  an amount payable under section 503A to a person receiving parenting payment; or

                     (b)  an amount payable under section 556A to a person receiving youth allowance; or

                     (c)  an amount payable under section 644AAA to a person receiving newstart allowance.

approved training course for training supplement, for a person, means a training course that is approved by the Secretary under section 28B for training supplement for the person.

assurance of support means an assurance of support within the meaning of:

                     (a)  the Migration (1989) Regulations; or

                     (b)  the Migration (1993) Regulations; or

                     (c)  Subdivision 2.7.1 or 2.7.2 of the Migration Regulations 1994 as in force on or after 1 September 1994; or

                     (d)  Chapter 2C.

assurance of support debt has the meaning given by subsection 1227(2).

Australia includes the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.

Note:          see also subsection 7(4), (6) and (7) for special residence rules for external Territories.

Australian Government Disaster Recovery Payment or AGDRP means a payment under Part 2.24.

AUSTUDY allowance means a benefit paid under the AUSTUDY scheme, being the scheme under Part 2 of the Student Assistance Act 1973 as previously in force.

austudy participation failure has the meaning given by section 576.

bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

benefit parenting allowance means benefit parenting allowance under this Act as previously in force.

carer supplement means carer supplement under Part 2.19B.

CDEPManager means the computer system known as CDEPManager.

CDEP Scheme means the scheme known as the Community Development Employment Projects Scheme.

CDEP Scheme participant has the meaning given by section 1188B.

CDEP Scheme payment means a payment (expressed as a fortnightly rate) made from the wages component grant under the CDEP Scheme.

CDEP Scheme provider means a person or organisation that is a party to a Programme Funding Agreement with the Commonwealth under which the person or organisation receives Commonwealth funding to deliver the CDEP Scheme.

CDEP Scheme quarter means:

                     (a)  such period (if any) as the Secretary determines in respect of the provision in which the expression occurs; or

                     (b)  in relation to a provision in respect of which there is no determination by the Secretary in force under paragraph (a)—a quarter within the meaning of the CDEP Scheme.

CEO means the Chief Executive Officer of the Agency.

child disability allowance means child disability allowance under Part 2.19 of this Act as in force at any time before 1 July 1999.

child disability assistance means child disability assistance under Part 2.19AA.

combined couple rate of minimum pension supplement has the meaning given by subsection 20A(2).

combined couple rate of pension supplement has the meaning given by subsection 20A(1).

Commonwealth Accommodation Scholarship means a scholarship of that name provided for under the Commonwealth Scholarships Guidelines made for the purposes of Part 2‑4 of the Higher Education Support Act 2003.

Commonwealth Education Costs Scholarship means a scholarship of that name provided for under the Commonwealth Scholarships Guidelines made for the purposes of Part 2‑4 of the Higher Education Support Act 2003.

comparable foreign payment means a payment‑type that is:

                     (a)  available from a foreign country; and

                     (b)  similar to a social security pension.

compliance penalty period, in relation to a person, means:

                     (a)  a period during which a participation payment (within the meaning of the Administration Act) is not payable because of subsection 42P(1) (serious failures) or 42S(1) (unemployment non‑payment periods) of that Act; or

                     (b)  a period during which youth allowance is not payable to the person because of section 550B or 551 of this Act; or

                     (c)  a period during which austudy payment is not payable to the person because of section 576A or 577 of this Act.

computer means a device that is used by the Department for storing or processing information.

current period as an Australian resident, of a person in relation to parenting payment, youth allowance or newstart allowance, is a period that satisfies both the following conditions:

                     (a)  the person has been an Australian resident for the entire period;

                     (b)  the person lodged the claim for the payment or allowance during the period.

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

Note:          subsection 3(3) of the Administrative Appeals Tribunal Act 1975 defines decision as including:

·         making, suspending, revoking or refusing to make an order or determination;

·         giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

·         issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

·         imposing a condition or restriction;

·         making a declaration, demand or requirement;

·         retaining, or refusing to deliver up, an article;

·         doing or refusing to do any other act or thing.

Defence Force Income Support Allowance or DFISA means Defence Force Income Support Allowance under Part VIIAB of the Veterans’ Entitlements Act.

distance educator has the meaning given by section 5D.

early school leaver means a person who:

                     (a)  is less than 21 years old; and

                     (b)  has not completed the final year of secondary school, or an equivalent level of education; and

                     (c)  is not undertaking full‑time study.

educational institution means an education institution within the meaning of subsection 3(1) of the Student Assistance Act 1973.

employee, in relation to the Agency, has the same meaning as in the Agency Act.

Employment Department means the Department of Employment, Education and Training.

employment pathway plan means:

                     (a)  a Parenting Payment Employment Pathway Plan; or

                     (b)  a Youth Allowance Employment Pathway Plan; or

                     (c)  a Newstart Employment Pathway Plan; or

                     (d)  a Special Benefit Employment Pathway Plan.

Employment Secretary means the Secretary to the Employment Department.

exempt funeral investment has the meaning given by section 19E.

external Territory does not include the Territory of Cocos (Keeling) Islands or the Territory of Christmas Island.

Family Assistance Act means the A New Tax System (Family Assistance) Act 1999.

Family Assistance Administration Act means the A New Tax System (Family Assistance) (Administration) Act 1999.

family assistance law means any one or more of the following:

                     (a)  the Family Assistance Act;

                     (b)  the Family Assistance Administration Act;

                     (c)  regulations under the Family Assistance Administration Act;

                     (d)  Schedules 5 and 6 to the A New Tax System (Family Assistance and Related Measures) Act 2000.

family law order means:

                     (a)  a parenting order; or

                     (b)  a family violence order within the meaning of section 4 of that Act; or

                     (c)  a State child order registered under Subdivision B of Division 13 of Part VII of that Act; or

                     (d)  an overseas child order registered under Subdivision C of Division 13 of Part VII of that Act.

family member has the meaning given by subsections (14) and (15).

family tax benefit has the meaning given by the Family Assistance Act.

fares allowance means fares allowance under Part 2.26 or under the Social Security (Fares Allowance) Rules 1998, as the case may be.

Farm Household Support Act 1992 includes the farm help re‑establishment grant scheme and the farm help advice and training scheme under that Act.

financial institution means a corporation that is an ADI for the purposes of the Banking Act 1959.

financial supplement means a loan that has been or may be made under a financial supplement contract as defined by section 19AB.

FTB child has the meaning given by section 3 of the Family Assistance Act.

full year course has the meaning given by subsection (10C).

Health Department means the Department dealing with matters relating to health and aged care.

Health Secretary means the Secretary to the Health Department.

higher education institution means an institution that is a higher education institution for the purposes of the Student Assistance Act 1973.

home educator has the meaning given by section 5C.

immediate family member, of a person, means an individual:

                     (a)  who is a parent or step‑parent of the person; or

                     (b)  who is, or was when the person was under 18 years of age, a legal guardian of the person; or

                     (c)  who is a grandparent of the person; or

                     (d)  who is a sibling of the person.

Impairment Tables means the Tables in Schedule 1B.

income maintenance period has the meaning given in points 1064‑F4 and 1064‑F5, 1066A‑G4 and 1066A‑G5, 1067G‑H11 and 1067G‑H12, 1067L‑D5 and 1067L‑D6, 1068‑G7AG and 1068‑G7AH, 1068A‑E3 and 1068A‑E4 and 1068B‑D9 and 1068B‑D10.

income support payment means a payment of:

                     (a)  a social security benefit; or

                    (aa)  a job search allowance; or

                     (b)  a social security pension; or

                     (c)  a youth training allowance; or

                     (d)  a service pension; or

                     (e)  income support supplement.

income support supplement means income support supplement under Part IIIA of the Veterans’ Entitlements Act.

Income Tax Assessment Act means the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997.

instalment period, in relation to a person, means a period that is determined by the Secretary under section 43 of the Social Security (Administration) Act 1999 to be an instalment period of the person.

job search allowance means job search allowance under this Act as previously in force.

joint ownership includes ownership as joint tenants or as tenants in common.

late starting course has the meaning given by subsection (10D).

lone parent: a person is a lone parent on a particular day if, on that day:

                     (a)  the person is not a member of a couple; and

                     (b)  the person has a dependent child.

long‑term social security recipient, as at a particular time, means:

                     (a)  a person who, at that time, has had social security recipient status continuously for the previous 52 weeks; or

                     (b)  a person:

                              (i)  who has not, at that time, had social security recipient status continuously for the previous 52 weeks; and

                             (ii)  who had social security recipient status at the beginning of the previous 52 weeks; and

                            (iii)  who did not lose social security recipient status for more than 6 weeks of the previous 52 weeks.

Note:          for social security recipient status see subsection 23(1).

major disaster means a disaster in respect of which a declaration is in force under section 36.

matched savings scheme (income management) payment means a matched savings scheme (income management) payment under Part 2.25E.

mature age allowance means:

                     (a)  in Part 2.12A—mature age allowance under that Part; or

                     (b)  in Part 2.12B—mature age allowance under that Part; or

                     (c)  otherwise—mature age allowance under either of those Parts.

maximum Part A rate of family tax benefit is the maximum rate worked out in step 1 of the method statement in clause 3 or 28A of Schedule 1 to the Family Assistance Act.

medical practitioner means a person registered and licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners.

mental hospital means premises in relation to which a declaration by the Secretary under section 30 is in force.

mental hospital patient means:

                     (a)  a person who:

                              (i)  has been admitted to a mental hospital as a patient of the hospital; and

                             (ii)  is shown on the records of the hospital as a patient (other than an outpatient) of the hospital; or

                     (b)  a person who:

                              (i)  is being transferred to a mental hospital; and

                             (ii)  will become a mental hospital patient within the meaning of paragraph (a) at that hospital; and

                            (iii)  immediately before being transferred, was a mental hospital patient within the meaning of paragraph (a) at another mental hospital.

Military Rehabilitation and Compensation Act Education and Training Scheme has the meaning given by the Family Assistance Act.

Military Rehabilitation and Compensation Act or MRCA means the Military Rehabilitation and Compensation Act 2004.

minimum pension supplement amount has the meaning given by subsection 20A(4).

National Green Jobs Corps program means the program administered by the Commonwealth known as the National Green Jobs Corps Program.

National Green Jobs Corps supplement means:

                     (a)  an amount payable under subsection 503C(2) to a person receiving a parenting payment; or

                     (b)  an amount payable under subsection 556B(2) to a person receiving youth allowance; or

                     (c)  an amount payable under subsection 645(2) to a person receiving newstart allowance.

NEIS payment means a payment under the scheme known as the New Enterprise Incentive Scheme.

new apprentice means a person who has a current Commonwealth registration number in relation to a full‑time apprenticeship, traineeship or trainee apprenticeship under the scheme known as New Apprenticeships, but does not include a person whose registration number is suspended.

newly arrived resident’s waiting period means:

                     (a)  a carer payment newly arrived resident’s waiting period under sections 201AA and 201AB; or

                     (b)  a widow allowance newly arrived resident’s waiting period under section 408BA; or

                     (c)  a youth allowance newly arrived resident’s waiting period under section 549D; or

                    (ca)  an austudy payment newly arrived resident’s waiting period under section 575D; or

                   (cb)  a pensioner education supplement newly arrived resident’s waiting period under section 1061PU; or

                     (d)  a mature age allowance newly arrived resident’s waiting period under sections 660YCFA and 660YCFB; or

                     (e)  a newstart allowance newly arrived resident’s waiting period under sections 623A and 623B; or

                      (f)  a sickness allowance newly arrived resident’s waiting period under sections 696B and 696C; or

                     (g)  a special benefit newly arrived resident’s waiting period under sections 732 and 739A; or

                     (h)  a partner allowance newly arrived resident’s waiting period under sections 771HC and 771HNA; or

                      (j)  a mobility allowance newly arrived resident’s waiting period under sections 1039AA and 1039AB; or

                     (k)  a seniors health card newly arrived resident’s waiting period under section 1061ZH; or

                   (ka)  a health care card newly arrived resident’s waiting period under section 1061ZQ.

nominated visa holder means a person to whom, in accordance with section 731, Subdivision AA of Division 1 of Part 2.15 applies.

non‑benefit parenting allowance means non‑benefit parenting allowance under this Act as previously in force.

Northern Territory CDEP transition payment means a Northern Territory CDEP transition payment under Part 2.27.

officer means a person performing duties, or exercising powers or functions, under or in relation to the social security law or the Farm Household Support Act 1992.

ordinary waiting period means:

                     (a)  a newstart allowance ordinary waiting period under sections 620 and 621; or

                     (c)  a sickness allowance ordinary waiting period under sections 693 and 694.

parenting allowance means parenting allowance under this Act as previously in force.

parenting order has the meaning given by section 64B of the Family Law Act 1975.

parenting plan has the meaning given by the Family Law Act 1975.

Part A rate of family tax benefit is the Part A rate of family tax benefit worked out under Part 2 or 3 of Schedule 1 to the Family Assistance Act.

partial capacity to work has the meaning given by section 16B.

participation failure instalment period:

                     (a)  in relation to the payability of youth allowance—has the meaning given by subsection 550B(3); and

                     (b)  in relation to the payability of austudy payment—has the meaning given by subsection 576A(3).

partner of a non‑independent YA recipient means a person who is a member of a couple the other member of which is receiving a youth allowance and is not independent within the meaning of Part 3.5.

payday, in relation to a person, means:

                     (a)  if the person is receiving a social security pension, a social security benefit, a carer allowance, a double orphan pension or a pensioner education supplement—a day on which an instalment of the pension, benefit, supplement or allowance is, or would normally be, paid to the person; or

                     (b)  if the person is receiving a service pension or income support supplement—a day on which an instalment of the service pension or income support supplement is, or would normally be, paid to the person under the Veterans’ Entitlements Act.

Note:          Subsection 43(3E) of the Administration Act affects when an instalment is, or would normally be, paid to a person if the Secretary has determined under subsection 43(3A) of that Act that the person is to be paid the total amount of a social security periodic payment relating to an instalment period in 2 payments.

PBBP employment income (short for pension bonus bereavement payment employment income) has the meaning given by section 93WC.

pension age:

                     (a)  when used in Part 3.14A or 3.14B in relation to a person who is a veteran (within the meaning of the Veterans’ Entitlements Act)—has the meaning that it has in section 5QA of that Act; or

                     (b)  otherwise—has the meaning given by subsections (5A), (5B), (5C) or (5D).

pension bonus means pension bonus under Part 2.2A (and does not include a pension bonus bereavement payment under Division 12 of that Part).

pension bonus bereavement payment means a pension bonus bereavement payment under Division 12 of Part 2.2A.

pension payday means:

                     (a)  the Thursday that falls on 4 July 1991; and

                     (b)  each succeeding alternate Thursday up to, and including, Thursday 24 June 1999.

pension period means the instalment period of an instalment of a social security pension.

pension supplement amount, for a person, means the amount added under the pension supplement Module (if any) of the Rate Calculator when working out the rate of the person’s social security payment.

pension supplement basic amount has the meaning given by subsection 20A(5).

physical impairment includes sensory impairment.

principal beneficiary, of a special disability trust, has the meaning given by subsection 1209M(1).

program of assistance means:

                     (a)  a program approved under section 28A; or

                     (b)  a program offered as part of the competitive employment training and placement services as defined by section 7 of the Disability Services Act 1986.

prohibited relationship has the meaning given by subsections 4(12) and (13).

protected information means:

                     (a)  information about a person that is or was held in the records of the Department or of the Agency; or

                     (b)  information about a person obtained by an officer under the family assistance law that is or was held in the records of the Australian Taxation Office or Medicare Australia; or

                   (ba)  information about a person obtained by an officer under the family assistance law that was held in the records of the Health Insurance Commission; or

                     (c)  information to the effect that there is no information about a person held in the records of one or more of the following:

                              (i)  the Department;

                             (ii)  the Agency;

                            (iii)  the Australian Taxation Office;

                            (iv)  Medicare Australia.

quarterly pension supplement means the separate social security payment described in subsection 1061VA(1).

RAS authority means an authority of a State or Territory that is responsible for the administration of the Rural Adjustment Scheme on behalf of the State or Territory.

receive has the meaning given by subsections (2), (4), (4A) and (4AA).

registered and active foster carer has the meaning given by section 5B.

registered parenting plan has the meaning given by the Family Law Act 1975.

regular care child has the meaning given by subsection 3(1) of the Family Assistance Act.

rehabilitation program means:

                     (a)  a rehabilitation program under Part III of the Disability Services Act 1986; or

                     (b)  a follow‑up program in relation to which a determination by the Secretary under section 31 is in force.

relationship child has the meaning given by subsection 5(25).

relationship parent has the meaning given by subsection 5(25).

relevant minimum wage, for an employee, means the minimum wage payable to the employee under law.

rent assistance child has the meaning given by subsection 3(1) of the Family Assistance Act.

Reserves means:

                     (a)  the Naval Reserve; or

                     (b)  the Army Reserve; or

                     (c)  the Air Force Reserve.

Rural Adjustment Scheme means the scheme of assistance established and operated by a State or Territory in accordance with clause 9 of the agreement set out in the Schedule to the States and Northern Territory Grants (Rural Adjustment) Act 1988.

Secretary means:

                     (a)  except in relation to Division 4 of Part 4 of the Administration Act—the Secretary to the Department; or

                     (b)  in relation to Division 4 of Part 4 of the Administration Act:

                              (i)  in the review of a decision made by the CEO or an employee of the Agency as a delegate of the Secretary to the Department or of the Secretary to the Employment Department—the CEO; or

                             (ii)  in the review of a decision under the Student Assistance Act 1973, other than a decision mentioned in subparagraph (i)—the Secretary to the Employment Department; or

                            (iii)  in the review of any other decision—the Secretary to the Department.

seniors supplement means seniors supplement under Part 2.25B.

service arrangements has the same meaning as in the Agency Act.

service payday means a pension payday within the meaning of the Veterans’ Entitlements Act.

service pension means:

                     (a)  an age service pension under Part III of the Veterans’ Entitlements Act; or

                     (b)  an invalidity service pension under Part III of the Veterans’ Entitlements Act; or

                     (c)  a partner service pension under Part III of the Veterans’ Entitlements Act; or

                     (d)  a carer service pension under Part III of the Veterans’ Entitlements Act.

short course means a course of education that lasts for 30 weeks or less including vacations.

sibling, of a person, includes a half‑brother, half‑sister, adoptive brother, adoptive sister, stepbrother or stepsister of the person, but does not include a foster‑brother or foster‑sister of the person.

social security benefit means:

                    (aa)  widow allowance; or

                  (aab)  youth allowance; or

                  (aac)  austudy payment; or

                     (a)  newstart allowance; or

                     (c)  sickness allowance; or

                     (d)  special benefit; or

                     (e)  partner allowance; or

                    (ea)  a mature age allowance under Part 2.12B; or

                      (f)  benefit PP (partnered); or

                     (g)  parenting allowance (other than non‑benefit allowance).

social security entitlement means:

                     (a)  an age pension; or

                     (b)  a disability support pension; or

                     (c)  a wife pension; or

                     (d)  a carer payment; or

                     (e)  a parenting payment; or

                      (f)  a widow B pension; or

                     (g)  a widow allowance; or

                   (ha)  a youth allowance; or

                   (hb)  an austudy payment; or

                      (i)  a job search allowance; or

                      (j)  a newstart allowance; or

                     (k)  a mature age allowance; or

                      (l)  a mature age partner allowance.

Social Security (Fares Allowance) Rules 1998, in relation to a time after the commencement of Schedule 1 to the Youth Allowance Consolidation Act 2000, means those Rules as they continue in force under clause 126 of Schedule 1A.

social security payment means:

                     (a)  a social security pension; or

                     (b)  a social security benefit; or

                     (c)  an allowance under this Act; or

                     (e)  any other kind of payment under Chapter 2 of this Act; or

                      (f)  a pension, benefit or allowance under the 1947 Act.

social security pension means:

                     (a)  an age pension; or

                     (b)  a disability support pension; or

                     (c)  a wife pension; or

                     (d)  a carer payment; or

                     (e)  a pension PP (single); or

                    (ea)  a sole parent pension; or

                      (f)  a bereavement allowance; or

                     (g)  a widow B pension; or

                      (i)  a mature age partner allowance; or

                     (k)  a special needs pension.

social security recipient status, for the purposes of the definition of long‑term social security recipient, means:

                     (a)  in the case of a person who is receiving a youth allowance, an austudy payment or newstart allowance—status as a recipient of a social security pension, a social security benefit, a youth training allowance, an ABSTUDY allowance, an AUSTUDY allowance, a service pension or income support supplement; or

                     (b)  in any other case—status as a recipient of a social security pension, a social security benefit, a youth training allowance, a service pension or income support supplement;

and includes status held on or after 20 March 2000 as a CDEP Scheme participant receiving the CDEP Scheme Participant Supplement.

sole parent pension means sole parent pension under this Act as previously in force.

special disability trust has the meaning given by section 1209L.

special employment advance qualifying entitlement means:

                     (a)  an austudy payment; or

                     (b)  a carer payment; or

                     (c)  a disability support pension; or

                     (d)  a mature age allowance; or

                     (e)  a mature age partner allowance; or

                      (f)  a newstart allowance; or

                     (g)  a pension PP (single); or

                     (h)  a widow B pension; or

                      (i)  a widow allowance; or

                      (j)  a wife pension; or

                     (k)  a youth allowance.

Student Financial Supplement Scheme means:

                     (a)  the scheme constituted by Part 4A of the Student Assistance Act 1973; or

                     (b)  the scheme established under Chapter 2B of this Act.

study includes vocational training.

subject to participation requirements: a person is subject to participation requirements if, because of paragraph 500(1)(c) or 500F(1)(f) or (2)(f), the person cannot be qualified for parenting payment unless the person meets any participation requirements that apply to the person under section 500A.

Note:          Subsection 500F(4) limits the circumstances in which paragraph 500F(1)(f) or (2)(f) applies.

subsection 11(14) asset means an asset that is unrealisable because of subsection 11(14).

TAFE institution means an institution that is a technical and further education institution for the purposes of the Student Assistance Act 1973.

taxable income has the same meaning as in the Income Tax Assessment Act.

tax‑exempt pension supplement has the meaning given by subsection 20A(6).

tax file number has the same meaning as in Part VA of the Income Tax Assessment Act.

tax year has the same meaning as year of income has in the Income Tax Assessment Act.

Note:          section 6 of the Income Tax Assessment Act defines year of income as the financial year (1 July to 30 June) or, if another accounting period has been adopted under section 18 of that Act instead of the financial year, that accounting period.

TFN declaration has the same meaning as in Part VA of the Income Tax Assessment Act 1936.

this Act means this Act as originally enacted or as amended and in force at any time.

training supplement means:

                     (a)  an amount payable under subsection 503B(2) to a person receiving a parenting payment; or

                     (b)  an amount payable under subsection 644AAC(2) to a person receiving newstart allowance.

transitional DSP applicant means a person:

                     (a)  who made a claim for a disability support pension on or after 11 May 2005 and before 1 July 2006; and

                     (b)  to whom, on or after 1 July 2006, a notice under subsection 63(2) or (4) of the Administration Act is given; and

                     (c)  who is required under the notice to undertake a specified activity for the purpose of reviewing his or her capacity to perform work.

transition day, for a person affected by Part 2.27 (Northern Territory CDEP transition payment), has the meaning given by section 1061ZAAM.

undertaking full‑time study has the meaning given in section 541B.

utilities allowance means utilities allowance under Part 2.25A.

Veterans’ Children Education Scheme has the meaning given by the Family Assistance Act.

Veterans’ Entitlements Act or VEA means the Veterans’ Entitlements Act 1986.

VET provider has the same meaning as in the Skilling Australia’s Workforce Act 2005.

voluntary income management agreement has the meaning given by Part 3B of the Administration Act.

voluntary income management incentive payment means a voluntary income management incentive payment under Part 2.25D.

waiting period means:

                    (aa)  a carer payment newly arrived resident’s waiting period under sections 201AA and 201AB; or

                   (ab)  a widow allowance newly arrived resident’s waiting period under section 408BA; or

                     (b)  newstart allowance ordinary waiting period under sections 620 and 621; or

                    (ca)  a newstart allowance newly arrived resident’s waiting period under sections 623A and 623B; or

                    (ff)  a mature age allowance newly arrived resident’s waiting period under sections 660YCFA and 660YCFB; or

                     (g)  a sickness allowance ordinary waiting period under sections 693 and 694; or

                     (k)  a sickness allowance newly arrived resident’s waiting period under sections 696B and 696C; or

                   (ka)  a special benefit newly arrived resident’s waiting period under sections 732 and 739A; or

                   (kb)  a partner allowance newly arrived resident’s waiting period under sections 771HC and 771HNA; or

                     (n)  a mobility allowance newly arrived resident’s waiting period under sections 1039AA and 1039AB; or

                     (o)  a seniors health card newly arrived resident’s waiting period under section 1061ZA.

youth allowance participation failure has the meaning given by section 550.

youth allowance payment period means a period under section 43 of the Administration Act for which youth allowance is or may be payable.

youth training allowance means a youth training allowance under Part 8 of the Student Assistance Act 1973 as previously in force.

          (1A)  Where:

                     (a)  a provision of this Act refers to:

                              (i)  the greater or greatest, or the higher or highest; or

                             (ii)  the lesser or least, or the lower or lowest;

                            of 2 or more amounts; and

                     (b)  the amounts are equal;

the provision is taken to refer to one only of the amounts.

          (1B)  Where:

                     (a)  a provision of this Act refers to the greatest or highest of 3 or more amounts; and

                     (b)  2 or more (but not all) of the amounts are equal and exceed the other amount or other amounts;

the provision is taken to refer to one only of those equal amounts.

          (1C)  Where:

                     (a)  a provision of this Act refers to the least or lowest of 3 or more amounts; and

                     (b)  2 or more (but not all) of the amounts are equal and are less than the other amount or other amounts;

the provision is taken to refer to one only of those equal amounts.

          (1D)  If, on a day that is on or after 20 September 2004:

                     (a)  adjusted disability pension (within the meaning of section 118NA of the Veterans’ Entitlements Act) is payable to a person or a person’s partner; and

                     (b)  apart from this subsection, a social security pension or social security benefit is not payable to the person, but only because the rate of the pension or benefit would be nil; and

                     (c)  the rate of the social security pension or social security benefit would not be nil if the 2 assumptions (that relate to the adjusted disability pension) referred to in step 2 of method statement 1 in subsection 118NC(1) of the Veterans’ Entitlements Act were made;

then, despite any other provision of this Act:

                     (e)  the social security pension or social security benefit is taken to be payable to the person on that day; and

                      (f)  the person is taken to be receiving the social security pension or social security benefit on that day.

Note:       This subsection overrides provisions of this Act (for example, sections 44 and 98) that provide that a social security pension or social security benefit is not payable where the rate of the pension or benefit would be nil, but only where the rate would not be nil if the 2 assumptions referred to in paragraph (c) were made.

             (2)  For the purposes of this Act (other than section 735), a person is taken to be receiving a payment under this Act from the earliest day on which the payment is payable to the person even if the first instalment of the payment is not paid until a later day.

             (4)  For the purposes of this Act, a person is taken to be receiving a social security payment until the latest day on which the payment is payable to the person even if the last instalment of the payment is not paid until a later day.

          (4A)  Despite subsection (4), if:

                     (a)  a person is receiving a social security pension or social security benefit; and

                     (b)  the person’s rate of payment of the pension or benefit is worked out with regard to the income test module of a rate calculator in Chapter 3; and

                     (c)  the person has not reached pension age; and

                     (d)  the person or the person’s partner earns, derives or receives, or is taken to earn, derive or receive, employment income; and

                     (e)  the person would, but for this subsection, cease to be receiving the pension or benefit on and from a day (the cessation day):

                              (i)  if paragraph (d) applies to the person—because of the employment income of the person (either alone or in combination with any other ordinary income earned, derived or received, or taken to have been earned, derived or received, by the person) (and after any working credit balance or student income bank balance of the person is reduced to nil); or

                             (ii)  if paragraph (d) applies to the partner—because of the employment income of the partner (either alone or in combination with any other ordinary income earned, derived or received, or taken to have been earned, derived or received, by the partner) (and after any working credit balance or student income bank balance of the partner is reduced to nil); and

                      (f)  but for the employment income, or the combined income, referred to in paragraph (e), the pension or benefit would continue to be payable to the person on and from the cessation day; and

                     (g)  the person:

                              (i)  in the case of a woman who would, but for this subsection, cease to be receiving wife pension because of the employment income, or the combined income, referred to in subparagraph (e)(ii)—continues, but for that employment income or combined income, to be qualified for wife pension on and from the cessation day; and

                             (ii)  in any other case—continues to be qualified for the pension or benefit on and from the cessation day;

then, for the purposes only of the provisions of this Act that are specified in subsection (4AA), the person is taken to be receiving the pension or benefit until:

                     (h)  12 weeks after the end of the instalment period in which the cessation day occurs; or

                      (i)  the day the person reaches pension age; or

                      (j)  the day the pension or benefit would cease to be payable to the person for a reason other than the employment income, or the combined income, referred to in paragraph (e); or

                     (k)  the day the person ceases to be qualified as mentioned in paragraph (g);

whichever happens first.

       (4AA)  For the purposes of subsection (4A), the following are the specified provisions of this Act:

                     (a)  provisions in Chapter 2 that provide for an increase in a person’s rate of payment by an amount to be known as the approved program of work supplement;

                    (aa)  provisions in Chapter 2 that provide for an increase in a person’s rate of payment by an amount to be known as the training supplement;

                   (ab)  provisions in Chapter 2 that provide for an increase in a person’s rate of payment by a National Green Jobs Corps supplement;

                     (b)  section 1048;

                     (c)  section 1061PJ;

                     (d)  section 1061Q;

                     (e)  point 1067G‑F3;

                      (f)  1070W;

                     (g)  1070X;

                     (h)  provisions within the income test module of a rate calculator in Chapter 3 prescribing the partner income free area or the partner income excess for a person.

          (4B)  For the purposes of this Act, a person is severely disabled if:

                     (a)  a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:

                              (i)  to work for at least the next 2 years; and

                             (ii)  unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

                     (b)  the person is permanently blind.

          (4C)  For the purposes of this Act, a person is in disability accommodation if:

                     (a)  the person:

                              (i)  is in accommodation for people with disabilities; or

                             (ii)  is:

                                        (A)  in accommodation that is not the principal home of the parents or a parent of the person; and

                                        (B)  receiving accommodation support services for people with disabilities; and

                     (b)  the accommodation, or services, for people with disabilities are funded wholly or partly by the Commonwealth, a State or a Territory.

       (4CA)  For the purposes of this Act, a person is in residential care if the person is being provided with residential care through an aged care service conducted by an approved provider.

        (4CB)  In subsection (4CA), the following terms have the same meanings as in the Aged Care Act 1997:

aged care service

approved provider

provide

residential care

          (4D)  For the purposes of this Act, a person is living away from the person’s parental home if the person is living away from:

                     (a)  where the person’s parents have the same principal home—that home; or

                     (b)  where the person has only one parent—the principal home of that parent; or

                     (c)  where the person’s parents have different principal homes—all of those homes.

             (5)  For the purposes of this Act, a person is in gaol if:

                     (a)  the person is being lawfully detained (in prison or elsewhere) while under sentence for conviction of an offence and not on release on parole or licence; or

                     (b)  the person is undergoing a period of custody pending trial or sentencing for an offence.

Pension age

          (5A)  A man born during the period specified in column 2 of an item in the following table reaches pension age when he turns the age specified in column 3 of that item.

 

Table—Pension age for men

Column 1

Item

Column 2

Period during which man was born

Column 3

Pension age

1

On or before 30 June 1952

65 years

2

1 July 1952 to 31 December 1953

65 years and 6 months

3

1 January 1954 to 30 June 1955

66 years

4

1 July 1955 to 31 December 1956

66 years and 6 months

5

On or after 1 January 1957

67 years

          (5B)  A woman born before 1 July 1935 reaches pension age when she turns 60.

          (5C)  A woman born within the period specified in column 2 of an item in the following Table reaches pension age when she turns the age specified in column 3 of that item.

 

Table—Pension age for women

Column 1

Item no.

Column 2

Period within which woman was born (both dates inclusive)

Column 3

Pension age

1.

From 1 July 1935 to 31 December 1936

60 years and 6 months

2.

From 1 January 1937 to 30 June 1938

61 years

3.

From 1 July 1938 to 31 December 1939

61 years and 6 months

4.

From 1 January 1940 to 30 June 1941

62 years

5.

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