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Social Security Act 1991

Authoritative Version
  • - C2015C00330
  • In force - Superseded Version
  • View Series
Act No. 46 of 1991 as amended, taking into account amendments up to Business Services Wage Assessment Tool Payment Scheme (Consequential Amendments) Act 2015
An Act to provide for the payment of certain pensions, benefits and allowances, and for related purposes
Administered by: Attorney-General's; Social Services; Employment
Registered 14 Jul 2015
Start Date 01 Jul 2015
End Date 16 Sep 2015

Social Security Act 1991

No. 46, 1991

Compilation No. 140

Compilation date:                              1 July 2015

Includes amendments up to:            Act No. 112, 2015

Registered:                                         14 July 2015

This compilation is in 5 volumes

Volume 1:       sections 1–660M

Volume 2:       sections 660XAA–1067L

Volume 3:       sections 1068–1237AB

                        Schedule

Volume 4:       Endnotes 1–4

Volume 5:       Endnotes 5 and 6

Each volume has its own contents

 

About this compilation

This compilation

This is a compilation of the Social Security Act 1991 that shows the text of the law as amended and in force on 1 July 2015 (the compilation date).

This compilation was prepared on 7 July 2015.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Chapter 1—Introductory                                                                                      1

Part 1.1—Formal matters                                                                                                 1

1............................ Short title............................................................................ 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

3B.......................... Definitions—simplified outline........................................... 2

4............................ Family relationships definitions—couples......................... 2

5............................ Family relationships definitions—children....................... 11

5A......................... Single person sharing accommodation.............................. 21

5B.......................... Registered and active foster carers.................................... 24

5C.......................... Home educators................................................................ 25

5D......................... Distance educators............................................................ 25

5E.......................... Relatives (other than parents)............................................ 25

5F.......................... Secondary pupil child....................................................... 26

5G......................... Main supporter of secondary pupil child.......................... 27

6............................ Double orphan pension definitions.................................. 27

6A......................... Concession card definitions.............................................. 27

7............................ Australian residence definitions....................................... 29

8............................ Income test definitions...................................................... 37

9............................ Financial assets and income streams definitions............... 56

9A......................... Meaning of asset‑test exempt income stream—lifetime income streams  66

9B.......................... Meaning of asset‑test exempt income stream—life expectancy income streams      75

9BA....................... Meaning of asset‑test exempt income stream—market‑linked income streams        83

9C.......................... Family law affected income streams................................. 89

9D......................... Asset‑tested status of secondary FLA income streams..... 90

10.......................... Maintenance income definitions....................................... 90

10A....................... Definitions for Seniors Health Card provisions................ 91

10B........................ Family actual means test definitions................................ 103

11.......................... Assets test definitions...................................................... 108

11A....................... Principal home definition for the purpose of the assets test 114

12.......................... Retirement villages definitions........................................ 120

12A....................... Granny flat definitions.................................................... 122

12B........................ Sale leaseback definitions............................................... 123

12C........................ Special residence and residents definitions.................... 125

13.......................... Rent definitions............................................................... 126

14.......................... Remote area definitions.................................................. 132

14A....................... Social security benefit liquid assets test definitions......... 133

16.......................... Industrial action definitions............................................ 137

16A....................... Seasonal work definitions............................................... 138

16B........................ Partial capacity to work................................................... 149

17.......................... Compensation recovery definitions................................ 150

17A....................... Retirement assistance for farmers definitions.................. 158

17B........................ Retirement assistance for sugarcane farmers definitions. 162

18.......................... Parenting payment definitions......................................... 168

19.......................... Mobility allowance definitions........................................ 168

19A....................... Fares allowance definitions............................................. 169

19AB..................... Student Financial Supplement Scheme definitions.......... 171

19B........................ Financial hardship (Carer payment) liquid assets test definition               176

19C........................ Severe financial hardship definitions.............................. 177

19D....................... Severe financial hardship—crisis payment definition..... 183

19E........................ Exempt funeral investments............................................ 185

20.......................... Indexation and rate adjustment definitions..................... 185

20A....................... Pension supplement rate definitions................................ 187

21.......................... Bereavement definitions.................................................. 190

23.......................... Dictionary....................................................................... 191

Part 1.3—Determinations having interpretative effect                               242

24.......................... Person may be treated as not being a member of a couple (subsection 4(2))            242

24A....................... Approved scholarship..................................................... 243

25.......................... Refugee visas.................................................................. 243

26.......................... Impairment Tables and rules for applying them.............. 244

27.......................... Application of Impairment Tables................................... 244

28.......................... Approved programs of work for income support payment 246

28A....................... Approval of programs of assistance............................... 247

28B........................ Approved training courses for training supplement........ 247

29.......................... Approval of friendly societies......................................... 248

30.......................... Approval of mental hospitals.......................................... 249

31.......................... Approval of follow‑up rehabilitation programs.............. 249

32.......................... Approval of sheltered employment—non‑profit organisation  249

33.......................... Approval of sheltered employment—supported employment  250

35.......................... Approval of care organisation......................................... 250

35A....................... Personal Care Support.................................................... 251

35B........................ Declared overseas terrorist act........................................ 251

36.......................... Major disaster................................................................. 251

36A....................... Part 2.23B major disaster................................................ 252

37.......................... Dependent child—inmate of a mental hospital................ 253

38B........................ Notional continuous period of receipt of income support payments         253

38C........................ Adult Disability Assessment Tool.................................. 255

38E........................ Disability Care Load Assessment (Child) Determination 256

38F........................ Treating health professional............................................ 257

Part 1.3A—Green Army Programme                                                                   258

38G....................... Simplified outline of this Part......................................... 258

38H....................... Non‑payment of security benefit or social security pension if person receiving green army allowance   258

38J......................... Certain participants in Green Army Programme are not workers or employees under Commonwealth laws........................................................................................ 258

38K........................ Income test for person’s social security pension if green army allowance payable to person’s partner    259

Part 1.3B—Loss of social security payments and concessions for persons on security grounds               261

38L........................ Simplified outline of this Part......................................... 261

38M....................... Loss of social security payments and concessions for persons on security grounds                261

38N....................... Security notice from Attorney‑General........................... 262

38P........................ Notice from Foreign Affairs Minister............................. 263

38Q....................... Notice from Immigration Minister.................................. 263

38R........................ Copy of security notice to be given to Secretaries........... 264

38S........................ Period security notice is in force..................................... 264

38SA..................... Annual review of security notice.................................... 264

38T........................ Revoking a security notice.............................................. 264

38U....................... Notices may contain personal information...................... 265

38V....................... Decisions under Part not decisions of officers................ 265

38W....................... Notices not legislative instruments.................................. 265

Part 1.4—Miscellaneous                                                                                                 266

39.......................... Tables, calculators etc. form part of section.................... 266

Chapter 2—Pensions, benefits and allowances                           268

Part 2.2—Age pension                                                                                                     268

Division 1—Qualification for and payability of age pension               268

Subdivision A—Qualification                                                                             268

43.......................... Qualification for age pension.......................................... 268

Subdivision B—Payability                                                                                   269

44.......................... Age pension not payable if pension rate nil.................... 269

47.......................... Multiple entitlement exclusion........................................ 269

47A....................... Exclusion of certain participants in ABSTUDY Scheme 271

Division 4—Rate of age pension                                                                         273

55.......................... How to work out a person’s age pension rate................. 273

Division 9—Bereavement payments                                                                 274

Subdivision A—Death of partner                                                                       274

82.......................... Qualification for payments under this Subdivision......... 274

83.......................... Continued payment of deceased partner’s previous entitlement               276

84.......................... Lump sum payable in some circumstances..................... 276

85.......................... Adjustment of person’s age pension rate........................ 278

86.......................... Effect of death of person entitled to payments under this Subdivision     279

87.......................... Matters affecting payment of benefits under this Subdivision  280

Subdivision C—Death of recipient                                                                     281

91.......................... Death of recipient............................................................ 281

Part 2.2A—Pension bonus                                                                                            283

Division 1—Introduction                                                                                        283

92A....................... Simplified outline............................................................ 283

92B........................ Definitions...................................................................... 284

Division 2—Qualification for pension bonus                                                285

92C........................ Qualification for pension bonus...................................... 285

Division 3—Registration as a member of the pension bonus scheme 287

Subdivision A—Membership of the pension bonus scheme                         287

92D....................... Application for registration............................................. 287

92E........................ Form of application......................................................... 287

92F........................ Relevant information....................................................... 287

92G....................... Lodgment of application................................................. 288

92H....................... Timing of application and registration............................. 288

92J......................... Registration..................................................................... 289

92K........................ Duration of membership................................................. 290

92L........................ Cancellation of membership............................................ 290

92M....................... Application for registration is not to be treated as a claim 290

Subdivision B—Classification of membership of the pension bonus scheme  291

92N....................... Accruing membership..................................................... 291

92P........................ Non‑accruing membership—preclusion periods............. 291

92Q....................... Non‑accruing membership—Secretary’s discretion........ 292

92R........................ Continuity of accruing membership is not broken by a period of non‑accruing membership   292

92S........................ Post‑75 membership....................................................... 293

Division 4—Accrual of bonus periods                                                             294

92T........................ Accrual of bonus periods................................................ 294

Division 5—Passing the work test                                                                      296

Subdivision A—The work test                                                                             296

92U....................... Work test—full‑year period............................................ 296

92V....................... Work test—part‑year period........................................... 297

92W....................... Secretary’s discretion to treat gainful work outside Australia as gainful work in Australia     298

Subdivision B—Gainful work                                                                             299

92X....................... Gainful work—basic rule............................................... 299

92Y....................... Secretary’s discretion to treat activity as gainful work.... 299

92Z........................ Irregular, infrequent and minor absences from a workplace count as gainful work 299

93.......................... Management of family financial investments does not count as gainful work          300

93A....................... Domestic duties in relation to a person’s place of residence do not count as gainful work      301

93B........................ Evidentiary certificate...................................................... 302

Subdivision C—Record‑keeping requirements                                               304

93C........................ Record‑keeping requirements......................................... 304

Division 6—Amount of pension bonus                                                             307

93D....................... How to calculate the amount of pension bonus............... 307

93E........................ Qualifying bonus periods............................................... 307

93F........................ Overall qualifying period................................................ 308

93G....................... Pension multiple............................................................. 308

93H....................... Annual pension rate........................................................ 309

93J......................... Amount of pension bonus.............................................. 310

93K........................ Top up of pension bonus for increased rate of age pension 313

93L........................ Top up of pension bonus in specified circumstances...... 314

Division 11—Preclusion periods                                                                         315

93U....................... Disposal preclusion period—disposals before 1 July 2002 315

93UA.................... Disposal preclusion period—disposals on or after 1 July 2002               316

93V....................... Compensation preclusion period..................................... 316

93W....................... Carer preclusion period................................................... 316

Division 12—Pension bonus bereavement payment                                 318

93WA.................... Qualification for pension bonus bereavement payment... 318

93WB.................... Amount of pension bonus bereavement payment........... 318

93WC.................... Definition of PBBP employment income......................... 318

Part 2.2B—One‑off payments to the aged and older Australians        320

Division 1—One‑off payment to the aged                                                      320

93X....................... One‑off payment to the aged........................................... 320

Division 2—2006 one‑off payment to older Australians                        321

93Y....................... 2006 one‑off payment to older Australians..................... 321

93Z........................ Amount of the one‑off payment...................................... 322

Division 3—2007 one‑off payment to older Australians                        324

93ZA..................... 2007 one‑off payment to older Australians..................... 324

93ZB..................... Amount of the one‑off payment...................................... 325

Division 4—2008 one‑off payment to older Australians                        326

93ZC..................... 2008 one‑off payment to older Australians..................... 326

93ZD..................... Amount of the one‑off payment...................................... 327

Part 2.3—Disability support pension                                                                     328

Division 1—Qualification for and payability of disability support pension         328

Subdivision A—Qualification                                                                             328

94.......................... Qualification for disability support pension.................... 328

94A....................... Participation requirements............................................... 334

94B........................ Participation plans........................................................... 334

94C........................ Illness or accident........................................................... 335

94D....................... Pre‑natal and post‑natal relief.......................................... 336

94E........................ Supported employment................................................... 336

94F........................ Special circumstances..................................................... 336

95.......................... Qualification for disability support pension—permanent blindness         337

96.......................... Continuation of disability support pension..................... 338

Subdivision B—Payability                                                                                   338

98.......................... Disability support pension not payable if pension rate nil 338

103........................ Multiple entitlement exclusion........................................ 339

103A..................... Exclusion of certain participants in ABSTUDY Scheme 341

104........................ Seasonal workers—preclusion period............................ 342

Division 5—Rate of disability support pension                                           344

117........................ How to work out a person’s disability support pension rate 344

118........................ Approved program of work supplement......................... 344

119........................ Approved program of work supplement not payable in certain circumstances         344

120........................ Effect of participation in an approved program of work for income support payment             345

Division 10—Bereavement payments                                                              346

Subdivision A—Death of partner                                                                       346

146F...................... Qualification for payments under this Subdivision......... 346

146G..................... Continued payment of deceased partner’s previous entitlement               348

146H..................... Lump sum payable in some circumstances..................... 349

146J....................... Adjustment of person’s disability support pension rate.. 350

146K...................... Effect of death of person entitled to payments under this Subdivision     351

146L...................... Matters affecting payment of benefits under this Subdivision  352

Subdivision C—Death of recipient                                                                     353

146Q..................... Death of recipient............................................................ 353

Part 2.4—Wife pension                                                                                                   355

Division 1A—Time limit on grant of wife pension                                    355

146V..................... Wife pension not to be granted after 30 June 1995......... 355

Division 1—Qualification for and payability of wife pension             356

Subdivision A—Qualification                                                                             356

147........................ Qualification for wife pension........................................ 356

Subdivision B—Payability                                                                                   356

148........................ Wife pension not payable if pension rate nil................... 356

151........................ Multiple entitlement exclusion........................................ 356

151A..................... Exclusion of certain participants in ABSTUDY Scheme 358

Division 4—Rate of wife pension                                                                        360

159........................ How to work out the rate of wife pension...................... 360

Division 9—Bereavement payments                                                                 361

Subdivision A—Continuation of wife pension where partner dies            361

186........................ Continuation of wife pension for bereavement period.... 361

187........................ Continued wife pension rate........................................... 361

Subdivision B—Death of pensioner partner                                                    362

188........................ Qualification for payments under this Subdivision......... 362

189........................ Continued payment of partner’s pension or allowance... 362

190........................ Lump sum payable in some circumstances..................... 363

191........................ Effect of death of person entitled to payments under this Subdivision     364

192........................ Matters affecting payment of benefits under this Subdivision  366

Part 2.5—Carer payment                                                                                              368

Division 1A—Interpretation                                                                                 368

197........................ Definitions...................................................................... 368

Division 1—Qualification for and payability of carer payment        371

Subdivision A—Qualification                                                                             371

197A..................... Overview—circumstances in which person is qualified for carer payment              371

197B...................... Qualification—child with a severe disability or severe medical condition                371

197C...................... Qualification—2 or more children each with a disability or medical condition         373

197D..................... Qualification—disabled adult and one or more children each with a disability or medical condition        374

197E...................... Qualification—child who has a terminal condition......... 375

197F...................... Qualification—exchanged care of children..................... 377

197G..................... Qualification—short term or episodic care of children.... 379

197H..................... Qualification—extension of short term or episodic care. 380

197J....................... Qualification following qualification for short term or episodic care        382

197K...................... Remaining qualified for up to 3 months after child turns 16 384

198........................ Qualification—disabled adult or disabled adult and dependent child        384

198AAA............... Continuation of qualification when person receiving care admitted to institution     387

198AA.................. Qualification for carer payment—hospitalisation............ 388

198AB................... Care not required to be in private residence during portability period      390

198AC................... Effect of cessation of care etc. on carer payment............. 391

198A..................... Income test...................................................................... 395

198B...................... Taxable income............................................................... 395

198C...................... Appropriate tax year....................................................... 398

198D..................... Assets test....................................................................... 401

198E...................... Working out the value of assets...................................... 404

198F...................... Disposal of assets—care receiver assets test................... 404

198G..................... Amount of disposition—care receiver assets test............ 405

198H..................... Disposal of assets in pre‑pension years—individual higher ADAT score adults     406

198HA.................. Disposal of assets in pre‑pension years—profoundly disabled child or disabled children       407

198HB................... Disposal of assets in pre‑pension years—lower ADAT score adult and dependent child        408

198J....................... Disposal of assets before 1 July 2002—individual higher ADAT score adults       410

198JA.................... Disposal of assets before 1 July 2002—profoundly disabled children or disabled children    411

198JB.................... Disposal of assets before 1 July 2002—lower ADAT score adult and dependent child          412

198JC.................... Disposal of assets in income year—individual higher ADAT score adults              414

198JD.................... Disposal of assets in 5 year period—individual higher ADAT score adults            415

198JE.................... Disposal of assets in income year—sole care children.... 416

198JF.................... Disposal of assets in 5 year period—sole care child....... 417

198JG.................... Disposal of assets in income year—lower ADAT score adult and child or children                418

198JH.................... Disposal of assets in 5 year period—lower ADAT score adult and child or children              419

198K...................... Disposal of assets in pre‑pension years—members of couples including higher ADAT score adults     421

198L...................... Disposal of assets before 1 July 2002—members of couples including higher ADAT score adults       423

198LA................... Disposal of assets in income year—members of couples including higher ADAT score adults              425

198LB................... Disposal of assets in 5 year period—members of couples including higher ADAT score adults            427

198M..................... Certain dispositions to be disregarded for care receiver assets test           429

198MA.................. Other disposals to be disregarded for care receiver assets test 429

198N..................... Exemption from care receiver assets test......................... 430

198P...................... Date of effect of favourable decision under section 198N 437

198Q..................... Date of effect of adverse decision under section 198N... 439

Subdivision B—Payability                                                                                   440

199........................ Carer payment not payable if payment rate nil................ 440

201AA.................. Newly arrived resident’s waiting period......................... 440

201AB................... Duration of newly arrived resident’s waiting period....... 441

202........................ Multiple entitlement exclusion........................................ 441

202A..................... Exclusion of certain participants in ABSTUDY Scheme 443

203........................ Seasonal workers—preclusion period............................ 444

Division 4—Rate of carer payment                                                                  446

210........................ How to work out a person’s carer payment rate............. 446

Division 9—Bereavement payments                                                                 447

Subdivision A—Continuation of carer payment                                            447

235........................ Continuation of carer payment for bereavement period where person cared for dies               447

236........................ Continued carer payment rate.......................................... 448

236A..................... Lump sum payable in some circumstances..................... 448

236B...................... Subdivision not to apply in certain cases involving simultaneous death   449

Subdivision B—Death of partner                                                                       450

237........................ Qualification for payments under this Subdivision......... 450

238........................ Continued payment of deceased partner’s previous entitlement               452

239........................ Lump sum payable in some circumstances..................... 453

240........................ Adjustment of person’s carer payment rate..................... 455

241........................ Effect of death of person entitled to payments under this Subdivision     455

242........................ Benefits under this Subdivision...................................... 457

243........................ Subdivision not to apply in certain cases involving simultaneous death   458

Subdivision D—Death of recipient                                                                     459

246........................ Death of recipient............................................................ 459

Part 2.5A—One‑off payments to carers eligible for carer payment   460

Division 1—One‑off payment to carers eligible for carer payment 460

247........................ One‑off payment to carers (carer payment related)......... 460

248........................ What is the amount of the payment?............................... 460

Division 2—2005 one‑off payment to carers eligible for carer payment              461

249........................ 2005 one‑off payment to carers (carer payment related). 461

250........................ What is the amount of the payment?............................... 461

Division 3—2005 one‑off payment to carers eligible for carer service pension               462

251........................ 2005 one‑off payment to carers (carer service pension related)                462

252........................ What is the amount of the payment?............................... 462

Division 4—2006 one‑off payment to carers eligible for carer payment              463

253........................ 2006 one‑off payment to carers (carer payment related). 463

254........................ Amount of the one‑off payment...................................... 463

Division 5—2006 one‑off payment to carers eligible for wife pension 464

255........................ 2006 one‑off payment to carers (wife pension related)... 464

256........................ Amount of the one‑off payment...................................... 464

Division 6—2006 one‑off payment to carers eligible for partner service pension           465

257........................ 2006 one‑off payment to carers (partner service pension related)            465

258........................ Amount of the one‑off payment...................................... 465

Division 7—2006 one‑off payment to carers eligible for carer service pension               466

259........................ 2006 one‑off payment to carers (carer service pension related)                466

260........................ Amount of the one‑off payment...................................... 466

Division 8—2007 one‑off payment to carers eligible for carer payment              467

261........................ 2007 one‑off payment to carers (carer payment related). 467

262........................ Amount of the one‑off payment...................................... 467

Division 9—2007 one‑off payment to carers eligible for wife pension 468

263........................ 2007 one‑off payment to carers (wife pension related)... 468

264........................ Amount of the one‑off payment...................................... 468

Division 10—2007 one‑off payment to carers eligible for partner service pension        469

265........................ 2007 one‑off payment to carers (partner service pension related)            469

266........................ Amount of the one‑off payment...................................... 469

Division 11—2007 one‑off payment to carers eligible for carer service pension             470

267........................ 2007 one‑off payment to carers (carer service pension related)                470

268........................ Amount of the one‑off payment...................................... 470

Division 12—2008 one‑off payment to carers eligible for carer payment           471

269........................ 2008 one‑off payment to carers (carer payment related). 471

270........................ Amount of the one‑off payment...................................... 471

Division 13—2008 one‑off payment to carers eligible for wife pension                472

271........................ 2008 one‑off payment to carers (wife pension related)... 472

272........................ Amount of the one‑off payment...................................... 472

Division 14—2008 one‑off payment to carers eligible for partner service pension        473

273........................ 2008 one‑off payment to carers (partner service pension related)            473

274........................ Amount of the one‑off payment...................................... 473

Division 15—2008 one‑off payment to carers eligible for carer service pension             474

275........................ 2008 one‑off payment to carers (carer service pension related)                474

276........................ Amount of the one‑off payment...................................... 474

Part 2.7—Bereavement allowance                                                                           475

Division 1—Qualification for and payability of bereavement allowance             475

Subdivision A—Qualification                                                                             475

315........................ Qualification for bereavement allowance........................ 475

Subdivision B—Payability                                                                                   476

316........................ Bereavement allowance not payable if allowance rate nil 476

321........................ Multiple entitlement exclusion........................................ 476

321A..................... Exclusion of certain participants in ABSTUDY Scheme 477

Division 4—Rate of bereavement allowance                                               479

329........................ How to work out a person’s bereavement allowance rate 479

Division 9—Bereavement payments                                                                 480

Subdivision B—Death of recipient                                                                     480

359........................ Death of recipient............................................................ 480

Part 2.8—Widow B pension                                                                                        481

Division 1—Qualification for and payability of widow B pension    481

Subdivision A—Qualification                                                                             481

362A..................... Widow B pension not to be granted in certain cases....... 481

362........................ Qualification for widow B pension................................. 481

Subdivision B—Payability                                                                                   484

364........................ Widow B pension not payable if pension rate nil............ 484

368........................ Multiple entitlement exclusion........................................ 484

368A..................... Exclusion of certain participants in ABSTUDY Scheme 485

Division 4—Rate of widow B pension                                                              487

376........................ How to work out the rate of widow B pension............... 487

Division 9—Bereavement payments                                                                 488

Subdivision B—Death of recipient                                                                     488

407........................ Death of recipient............................................................ 488

Part 2.8A—Widow allowance                                                                                    489

Division 1—Time limit on grants of widow allowance                            489

408AA.................. Time limit on grants........................................................ 489

Division 2—Qualification for and payability of widow allowance   490

Subdivision A—Qualification                                                                             490

408BA................... Qualification for widow allowance................................. 490

408BB................... Assurance of support...................................................... 491

Subdivision B—Payability                                                                                   492

408CA................... Widow allowance not payable if allowance rate nil......... 492

408CE................... Assets test—allowance not payable if assets value limit exceeded           492

408CF................... Multiple entitlement exclusion........................................ 493

408CG................... Maximum basic rate and remote area allowance not payable to CDEP Scheme participant      494

408CH................... Seasonal workers............................................................ 495

Division 5—Rate of widow allowance                                                             496

408FA................... How to work out a woman’s widow allowance rate....... 496

408GI.................... CDEP Scheme participant may accumulate widow allowance 496

Part 2.10—Parenting payment                                                                                  497

Division 1—Qualification for and payability of parenting payment 497

Subdivision A—Qualification                                                                             497

500........................ Qualification for parenting payment................................ 497

500A..................... Participation requirements............................................... 498

500B...................... Qualification—assurance of support............................... 498

500C...................... Qualification affecting member of couple—unemployment due to industrial action 499

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

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

Subdivision B—General principles relating to payability                          501

500I....................... Parenting payment not payable if payment rate nil.......... 501

500J....................... Situations where payment not payable for failure to comply with certain requirements           501

500Q..................... Assets test—payment not payable if assets value limit exceeded             501

500S...................... Multiple entitlement exclusion........................................ 504

500V..................... Educational schemes exclusion—person member of a couple  505

500VA.................. Exclusion of certain participants in ABSTUDY Scheme 505

500W..................... Maximum basic rate and remote area allowance not payable to CDEP Scheme participant who is a member of a couple........................................................................... 506

500Z...................... Seasonal workers—preclusion period............................ 506

Division 2—Parenting Payment Employment Pathway Plans            508

501........................ Parenting Payment Employment Pathway Plans............. 508

501A..................... Parenting Payment Employment Pathway Plan—terms.. 508

501B...................... Parenting Payment Employment Pathway Plans—requirement to look for work of appropriate number of hours per week............................................................... 511

501C...................... Parenting Payment Employment Pathway Plans—people with partial capacity to work          511

501D..................... Parenting Payment Employment Pathway Plans—requirement to participate in an approved program of work........................................................................................ 512

501E...................... Parenting Payment Employment Pathway Plans—suspension of plans in cases of domestic violence etc......................................................................................... 514

Division 3—Additional participation requirements                                  515

502........................ Secretary may impose additional participation requirements 515

502A..................... People 55 and over who are engaged in work................ 518

502B...................... Persons engaged in suitable paid work for at least 30 hours per fortnight               519

Division 3A—Participation exemptions                                                          520

502C...................... Domestic violence etc..................................................... 520

502D..................... People with disabled children and other circumstances... 521

502E...................... Training camps............................................................... 524

502F...................... Special circumstances..................................................... 524

502G..................... Pre‑natal and post‑natal relief.......................................... 525

502H..................... Temporary incapacity...................................................... 525

502J....................... Time limit for temporary incapacity exemption—Secretary satisfied person can undertake activity         526

502K...................... Time limit for temporary incapacity exemption—end of person’s maximum exemption period               527

Division 4—Rate of parenting payment                                                         531

Subdivision A—Rate of parenting payment                                                    531

503........................ How to work out a person’s parenting payment rate...... 531

503A..................... Approved program of work supplement......................... 531

503AA.................. Approved program of work supplement not payable in certain circumstances         531

503B...................... Training supplement....................................................... 532

503C...................... National Green Jobs Corps supplement.......................... 532

Subdivision C—Accumulation of parenting payments by CDEP Scheme participants                533

504N..................... CDEP Scheme participant may accumulate parenting payment                533

Division 9—Bereavement payments                                                                 535

Subdivision A—Continuation of parenting payment after death of child 535

512........................ Death of PP child—continuation of qualification for 14 weeks               535

Subdivision B—Death of recipient                                                                     535

513........................ Death of recipient—recipient not member of a couple.... 535

513A..................... Death of recipient—recipient member of a couple.......... 536

Subdivision C—Death of partner                                                                       536

514........................ Surviving partner and deceased partner.......................... 536

514A..................... Qualification for payments under this Subdivision......... 537

514B...................... Continued payment of deceased partner’s previous entitlement               538

514C...................... Lump sum payable in some circumstances..................... 538

514D..................... Adjustment of person’s parenting payment rate.............. 540

514E...................... Effect of death of surviving partner................................ 540

514F...................... Matters affecting payments under this Subdivision........ 542

Subdivision D—Bereavement payment in respect of a person who was a CDEP Scheme participant     543

514FA................... Calculation of bereavement payment in respect of former CDEP Scheme participant              543

Part 2.11—Youth allowance                                                                                        545

Division 1—Qualification for youth allowance                                           545

Subdivision A—Basic qualifications                                                                 545

540........................ Qualification for youth allowance—general rule............. 545

540A..................... Qualification for youth allowance—claimants for disability support pension          546

540AA.................. Qualification for youth allowance—new apprentices...... 547

540AB................... Qualification for youth allowance—claimants with medical conditions affecting their capacity to work  547

540B...................... Qualification for youth allowance—transferee from social security pension            549

540C...................... Qualification for youth allowance may continue to end of payment period              550

Subdivision B—Activity test                                                                                550

541........................ Activity test..................................................................... 550

541A..................... Failure to satisfy the activity test..................................... 553

541B...................... Undertaking full‑time study............................................ 554

541D..................... Unsuitable paid work...................................................... 557

Subdivision C—Exemptions from the activity test                                        560

542........................ Situations in which a person is not required to satisfy the activity test     560

542A..................... Temporary incapacity exemption.................................... 561

542B...................... Failure to attend interview etc. may result in cessation of temporary incapacity exemption      563

542BA................... Time limit for temporary incapacity exemptions—capacity to undertake activity     564

542C...................... Time limit for temporary incapacity exemptions—maximum exemption period       564

542D..................... Pre‑natal and post‑natal exemptions................................ 568

542E...................... Remote area exemption................................................... 569

542F...................... Domestic violence or other special family circumstances exemption        570

542FA................... Disabled children or other family circumstances exemption 571

542FB................... New claimants exemption............................................... 575

542G..................... Training camp exemption................................................ 576

542H..................... Special circumstances exemption.................................... 576

Subdivision D—Youth allowance age                                                               577

543........................ Youth allowance age....................................................... 577

543A..................... Minimum age for youth allowance................................. 578

543B...................... Maximum age for youth allowance................................. 581

Subdivision E—Youth Allowance Employment Pathway Plans                582

544........................ Requirements relating to Youth Allowance Employment Pathway Plans                582

544A..................... Youth Allowance Employment Pathway Plans—requirement 583

544B...................... Youth Allowance Employment Pathway Plans—terms.. 585

544C...................... Youth Allowance Employment Pathway Plans—principal carers            588

544D..................... Youth Allowance Employment Pathway Plans—people with partial capacity to work            589

544DA.................. Youth Allowance Employment Pathway Plans—early school leavers     589

544E...................... Youth Allowance Employment Pathway Plans—suspension of plans for people with certain exemptions........................................................................................ 591

Subdivision G—Miscellaneous                                                                           591

546........................ Prospective determinations for some allowance recipients 591

Division 2—Situations in which youth allowance is not payable       593

Subdivision A—Situations in which allowance not payable (general)      593

547........................ Youth allowance not payable if allowance rate nil.......... 593

547AA.................. Youth allowance not payable if person fails to attend interview etc. in certain circumstances  593

547AB................... Situations where allowance not payable for failure to comply with certain requirements         595

Subdivision AB—Assets test                                                                                 595

547A..................... Allowance not payable if assets value limit exceeded..... 595

547B...................... Who is excluded from application of assets test?............ 595

547C...................... Assets value limit............................................................ 595

547D..................... Value of person’s assets to include value of assets of partner or family members in certain circumstances........................................................................................ 596

547E...................... Assets of trust in which person benefits......................... 597

547G..................... How business assets are treated...................................... 597

Subdivision C—Waiting periods                                                                        598

549........................ Waiting periods............................................................... 598

549A..................... Liquid assets test waiting period..................................... 598

549B...................... Start of liquid assets test waiting period.......................... 600

549C...................... Length of liquid assets test waiting period...................... 600

549D..................... Newly arrived resident’s waiting period......................... 601

549E...................... Length of newly arrived resident’s waiting period.......... 603

549F...................... Effect of being subject to 2 waiting periods.................... 603

Subdivision D—Situations where allowance not payable because of youth allowance participation failure         604

549G..................... Application of Subdivision............................................. 604

550........................ Youth allowance participation failures............................ 604

550B...................... Allowance not payable because of youth allowance participation failure 606

550C...................... When the period of non‑payment starts.......................... 607

550D..................... When the period of non‑payment ends........................... 607

Subdivision E—Situations where allowance not payable because of repeated failure 608

550E...................... Application of Subdivision............................................. 608

551........................ Allowance not payable because of repeated failure......... 608

551A..................... When the period of non‑payment starts.......................... 608

Subdivision F—Multiple entitlement exclusions                                            609

552........................ Multiple entitlement exclusions....................................... 609

552A..................... Person receiving payment under certain schemes........... 610

552B...................... Assurance of support...................................................... 611

552C...................... Maximum basic rate and remote area allowance not payable to CDEP Scheme participant      611

Subdivision G—Employment‑related exclusions                                           611

553........................ Employment‑related exclusions...................................... 611

553A..................... Unemployment due to industrial action........................... 612

553B...................... Move to area of lower employment prospects................ 613

553C...................... Seasonal workers............................................................ 615

Division 5—Rate of youth allowance                                                               617

556........................ How to work out a person’s youth allowance rate.......... 617

556A..................... Approved program of work supplement......................... 617

556B...................... National Green Jobs Corps supplement.......................... 617

559J....................... CDEP Scheme participant may accumulate youth allowance 618

Division 10—Bereavement payments                                                              619

Subdivision A—Bereavement payments on death of partner                     619

567........................ Qualification for payments under this Division.............. 619

567A..................... Continued payment of partner’s pension or benefit........ 620

567B...................... Lump sum payable in some circumstances..................... 621

567C...................... Adjustment of person’s youth allowance rate................. 622

567D..................... Effect of death of person entitled to payments under this Division          622

567E...................... Matters affecting payments under this Division.............. 624

567F...................... Calculation of bereavement payment in respect of former CDEP Scheme participant              625

Subdivision B—Continuation of youth allowance rate after death of child 625

567G..................... Death of child—continuation of youth allowance rate for 14 weeks        625

Part 2.11A—Austudy payment                                                                                 626

Division 1—Qualification for austudy payment                                         626

Subdivision A—Basic qualifications                                                                 626

568........................ Qualification for austudy payment—general rule............ 626

568AA.................. Qualification for austudy payment—new apprentices..... 626

568A..................... Qualification for austudy payment—transferee from social security pension           626

Subdivision B—Activity test                                                                                627

569........................ Activity test..................................................................... 627

569A..................... Undertaking qualifying study......................................... 627

569B...................... Approved course of education or study.......................... 628

569C...................... Full‑time students........................................................... 628

569D..................... Concessional study‑load students................................... 629

569E...................... Normal amount of full‑time study................................... 631

569F...................... First fortnight of classes................................................. 631

569G..................... Progress rules—secondary students............................... 632

569H..................... Progress rules—tertiary students.................................... 633

Subdivision C—Austudy age                                                                               639

570........................ Austudy age.................................................................... 639

Division 2—Situations in which austudy payment is not payable     641

Subdivision A—Situation in which austudy payment not payable (general) 641

572........................ Austudy payment not payable if payment rate nil........... 641

572A..................... Situations where austudy payment not payable for failure to comply with certain requirements              641

Subdivision B—Assets test                                                                                    641

573........................ Austudy payment not payable if assets value limit exceeded 641

573A..................... Who is excluded from application of assets test.............. 642

573B...................... Assets value limit............................................................ 643

573C...................... Value of person’s assets to include value of assets of partner  643

573D..................... Assets of trust in which person benefits......................... 644

Subdivision D—Waiting periods                                                                        644

575........................ Waiting periods............................................................... 644

575A..................... Liquid assets test waiting period..................................... 644

575B...................... Start of liquid assets test waiting period.......................... 646

575C...................... Length of liquid assets test waiting period...................... 646

575D..................... Newly arrived resident’s waiting period......................... 647

575E...................... Length of newly arrived resident’s waiting period.......... 648

575EA................... Seasonal workers—preclusion period............................ 649

575F...................... Effect of being subject to 2 waiting periods.................... 650

Subdivision E—Situations where austudy payment not payable because of austudy participation failure            650

576........................ Austudy participation failures......................................... 650

576A..................... Allowance not payable because of austudy participation failure               651

576B...................... When the period of non‑payment starts.......................... 653

576C...................... When the period of non‑payment ends........................... 653

Subdivision F—Situations where payment not payable because of repeated failure    654

577........................ Payment not payable because of repeated failure............ 654

577A..................... When the period of non‑payment starts.......................... 654

Subdivision G—Multiple entitlement exclusions                                            655

578........................ Multiple entitlement exclusions....................................... 655

578A..................... Person receiving payment under certain schemes........... 656

578B...................... Assurance of support...................................................... 657

Division 5—Rate of austudy payment                                                             658

581........................ How to work out a person’s austudy payment rate......... 658

Division 10—Bereavement payments on death of partner                   659

592........................ Qualification for payments under this Division.............. 659

592A..................... Continued payment of partner’s pension or benefit........ 660

592B...................... Lump sum payable in some circumstances..................... 661

592C...................... Adjustment of person’s austudy payment rate................ 662

592D..................... Effect of death of person entitled to payments under this Division          662

592E...................... Matters affecting payments under this Division.............. 664

Part 2.11B—Scholarship payments for students                                            666

Division 1—Student start‑up scholarship payment                                   666

592F...................... Qualification for student start‑up scholarship payment... 666

592G..................... Circumstances in which person is not qualified for student start‑up scholarship payment       667

592H..................... Amount of student start‑up scholarship payment............ 668

Division 2—Relocation scholarship payment                                              669

592J....................... Qualification for relocation scholarship payment............ 669

592K...................... Circumstances in which person is not qualified for relocation scholarship payment                670

592L...................... Amount of relocation scholarship payment..................... 672

Division 3—Approved scholarship course                                                    675

592M..................... Definition........................................................................ 675

592N..................... Approved scholarship course......................................... 675

Part 2.12—Newstart allowance                                                                                 676

Division 1—Qualification for and payability of newstart allowance 676

Subdivision A—Basic qualifications                                                                 676

593........................ Qualification for newstart allowance............................... 676

595........................ Persons may be treated as unemployed........................... 680

596........................ Unemployment due to industrial action........................... 681

596A..................... Assurance of support...................................................... 682

598........................ Liquid assets test waiting period..................................... 682

600........................ Prospective determinations for some allowance recipients 687

Subdivision B—Activity test                                                                                688

601........................ Activity test..................................................................... 688

602A..................... Relief from activity test—persons to whom subsection 614(6) applies    693

602B...................... Relief from activity test—domestic violence etc.............. 693

602C...................... Relief from activity test—people with disabled children and other circumstances    694

603........................ Relief from activity test—general.................................... 698

603A..................... Relief from activity test—special circumstances............. 699

603AAA............... Pre‑natal and post‑natal relief from activity test.............. 700

603AA.................. Relief from activity test—people 55 and over who are engaged in work 700

603AB................... Relief from activity test—certain principal carers and people with partial capacity to work     701

Subdivision BA—Exemption from activity test—people temporarily incapacitated for work 701

603BA................... Subdivision not to apply to a person with a pending claim for disability support pension       701

603B...................... Interpretation................................................................... 702

603C...................... Incapacitated person not required to satisfy activity test.. 702

603D..................... Time limit for exemption—Secretary satisfied person can undertake activity           703

603F...................... Time limit for exemption—end of person’s maximum exemption period                704

Subdivision C—Newstart Employment Pathway Plans                                707

605........................ Newstart Employment Pathway Plans—requirement..... 707

606........................ Newstart Employment Pathway Plans—terms............... 708

607........................ Newstart Employment Pathway Plans—principal carers 710

607A..................... Newstart Employment Pathway Plans—people with partial capacity to work         711

607B...................... Newstart Employment Pathway Plans—requirement to participate in an approved program of work     711

607C...................... Newstart Employment Pathway Plans—suspension of plans in cases of domestic violence etc.             712

Subdivision D—Situations where allowance not payable (general)          713

608........................ Newstart allowance not payable if allowance rate nil...... 713

611........................ Assets test—allowance not payable if assets value limit exceeded           713

612........................ Value of assets of members of couples........................... 715

613........................ Full‑time students........................................................... 715

614........................ Multiple entitlement exclusion........................................ 716

614A..................... Maximum basic rate and remote area allowance not payable to CDEP Scheme participant      718

615........................ Newstart allowance not payable if person fails to attend interview etc. in certain circumstances              719

Subdivision E—Situations where allowance not payable (waiting periods) 720

620........................ Ordinary waiting period.................................................. 720

621........................ Duration of ordinary waiting period............................... 721

623A..................... Newly arrived resident’s waiting period......................... 722

623B...................... Duration of newly arrived resident’s waiting period....... 724

Subdivision G—Situations where allowance not payable (administrative breaches)   725

631........................ Situations where allowance not payable for failure to comply with certain requirements         725

Subdivision GA—Activities that do not give rise to employment under certain industrial relations legislation   725

631C...................... Activities that do not give rise to employment under certain industrial relations legislation     725

Subdivision H—Other situations where allowance not payable                 726

633........................ Seasonal workers............................................................ 726

634........................ Move to area of lower employment prospects................ 727

Division 4—Rate of newstart allowance                                                        729

643........................ How to work out a person’s newstart allowance rate..... 729

644AAA............... Approved program of work supplement......................... 729

644AAB................ Approved program of work supplement not payable in certain circumstances         729

644AAC................ Training supplement....................................................... 729

645........................ National Green Jobs Corps supplement.......................... 730

653A..................... CDEP Scheme participant may accumulate newstart allowance               731

Division 9—Bereavement payments                                                                 732

Subdivision AA—Death of partner                                                                    732

660LA................... Qualification for payments under this Subdivision......... 732

660LB................... Continued payment of partner’s pension or benefit........ 733

660LC................... Lump sum payable in some circumstances..................... 733

660LD................... Adjustment of a person’s newstart allowance rate.......... 735

660LE.................... Effect of death of person entitled to payments under this Subdivision     735

660LF.................... Matters affecting payments under this Subdivision........ 737

660LG................... Calculation of bereavement payment in respect of former CDEP Scheme participant              738

Subdivision B—Continuation of newstart allowance rate after death of child              738

660M..................... Death of child—continuation of newstart allowance rate for 14 weeks    738


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

                   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.

3B  Definitions—simplified outline

Sections 4 to 23 contain definitions of terms that are used in the social security law.

Subsection 23(1) contains an entry for each expression that is defined for the purposes of this Act. That subsection is like a Dictionary.

The entry is either an actual definition of the expression or a signpost definition that identifies the provision that defines the expression.

Many other sections in this Part contain the actual definitions relating to a particular topic. For example, sections 4 and 5 contain family relationship definitions and section 8 contains income test definitions.

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 2E 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)  a respite supplement in respect of that day under the Subsidy Principles made for the purposes of subparagraph 44‑5(1)(a)(i) of the Aged Care Act 1997; or

                     (b)  a respite care supplement in respect of that day under section 44‑12 of the Aged Care (Transitional Provisions) 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

             (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 (8A).

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, section 592L and 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, section 592L and 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

                     (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.

Note:          For paragraph (ca), 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)).

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:

                     (a)  except in Part 2.20—has the meaning given by subsection (1B) of this section; and

                     (b)  in Part 2.20—means a person who is under 20 years of age.

          (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 6 weeks;

a person cannot be the principal carer of the child at any time after the 6 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 6 weeks immediately following the child’s birth;

a person cannot be the principal carer of the child at any time after the 6 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 6 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 6 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, 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 exchange trading system has the meaning given by subsection (10).

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.

dad and partner pay means dad and partner pay under the Paid Parental Leave Act 2010.

deposit money, in relation to a person, means the person’s money that is deposited in an account with a financial institution.

disposes of ordinary income has the meaning given by sections 1106 to 1111.

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).

exchange trading system has the meaning given by subsection (9).

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), Division 1B of Part 3.10 (income from financial assets (including income streams (short term) and certain income streams (long term)), Division 1C of Part 3.10 (income from income streams not covered by Division 1B of Part 3.10), 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 section 10.

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), Division 1B of Part 3.10 (income from financial assets (including income streams (short term) and certain income streams (long term)) and Division 1C of Part 3.10 (income from income streams not covered by Division 1B of Part 3.10).

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:

                              (i)  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; and

                             (ii)  if the person is engaged on a continuing basis in that employer/employee relationship—a leave payment to the person;

                            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)  if the person is not engaged on a continuing basis in that employer/employee relationship—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 subsection (1A), a leave payment:

                     (a)  includes a payment in respect of personal/carer’s 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;

                     (c)  the value of emergency relief or like assistance;

                     (d)  an instalment of parental leave pay;

                   (da)  dad and partner 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, single income family bonus, clean energy advance or ETR payment, 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;

                 (jaba)  a payment under the scheme determined under Part 2 of Schedule 1 to the Family Assistance and Other Legislation Amendment (Schoolkids Bonus Budget Measures) Act 2012;

                   (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;

                   (jag)  an NDIS amount;

                  (jah)  any return on a person’s NDIS amounts that the person earns, derives or receives;

                   (jai)  a payment of a bursary under the program established by the Commonwealth and known as the Young Carer Bursary Programme;

                    (ja)  disability expenses maintenance;

                    (jb)  a payment under the Business Services Wage Assessment Tool Payment Scheme Act 2015;

                     (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;

                   (vc)  a payment by the Thalidomide Australia Fixed Trust:

                              (i)  made to, or applied for the benefit of, a beneficiary of the Trust; or

                             (ii)  made to a person in respect of a beneficiary of the Trust;

                    (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

                     (viiaaa)  prisoner of war recognition supplement under Part VIB 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 the Veterans’ Entitlements Act; or

                         (viib)  energy supplement under Part VIIAD of that Act; or

                          (viii)  a bereavement payment under Part IIIB, 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;

                 (yha)  a clean energy payment under the Veterans’ Entitlements Act;

                 (yhb)  ETR 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;

                  (zab)  the value of a benefit obtained by using a card known as the Western Australian Country Age Pension Fuel Card;

                   (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;

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.

                (znaa)  while a person is liable to pay all or some of a daily accommodation payment or a daily accommodation contribution—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.

                 (znb)  a clean energy payment under the Military Rehabilitation and Compensation Act;

                   (zo)  a payment under section 47, 56, 81, 205, 214, 217, 226, 239 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‑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).

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

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).

designated NDIS amount means:

                     (a)  an NDIS amount that is deposited in an account with a financial institution; and

                     (b)  any return on the NDIS amount that a person earns, derives or receives.

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 (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); or

                      (i)  an asset‑tested income stream (long term) that is an account‑based pension within the meaning of the Superannuation Industry (Supervision) Regulations 1994; or

                      (j)  an asset‑tested income stream (long term) that is an annuity (within the meaning of the Superannuation Industry (Supervision) Act 1993) provided under a contract that meets the requirements determined in an instrument under subsection (1EA);

but does not include a designated NDIS amount.

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).

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.

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;

                     (e)  an investment in an approved deposit fund;

                      (f)  an investment in a deferred annuity;

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

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

Note 2:       For paragraph (e), see paragraph (1C)(b) for investments in approved deposit funds held before pension age is reached.

Note 3:       For paragraph (f), see paragraph (1C)(c) for deferred annuities held before pension age is reached.

Note 4:       For paragraph (g), 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;

                     (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).

          (1D)  To avoid doubt, none of the following is a financial investment for the purposes of this Act:

                     (a)  an accommodation bond;

                     (b)  an accommodation bond balance;

                     (c)  a refundable deposit;

                     (d)  a refundable deposit balance.

          (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).

        (1EA)  The Minister may, by legislative instrument, determine requirements for the purposes of paragraph (j) of the definition of financial investment 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.

           (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), (1C) and (1D), 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 the actuary is of the opinion that, for the financial year in which the certificate is given, 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.

Note:          For paragraph (b), financial year means a period of 12 months commencing on 1 July: see the Acts Interpretation Act 1901.

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.

Exception to paragraph (1)(b)

          (1C)  If, on 30 June in a financial year, an actuarial certificate referred to in paragraph (1)(b) is in force in relation to an income stream, then paragraph (1)(b) does not apply in relation to the next financial year (the later year) for the period:

                     (a)  beginning on 1 July of the later year; and

                     (b)  ending at the earlier of the following:

                              (i)  the start of the first day in the later year on which any actuarial certificate is given to the Secretary in relation to that income stream;

                             (ii)  the end of the period of 26 weeks beginning on 1 July of the later year.

One certificate a financial year

          (1D)  For the purposes of paragraph (1)(b), if an actuarial certificate is given to the Secretary in a financial year in relation to an income stream, then any actuarial certificate given to the Secretary later in that financial year in relation to that income stream has no effect.

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 Act 2001; 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; but does not include the sum of NDIS amounts paid to the person and any return on those amounts that the person earns, derives or receives, less the sum of amounts spent by the person in accordance with an NDIS plan under which the amounts were paid.

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 subsections (1C), (1D) and (1E), 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 the actuary is of the opinion that, for the financial year in which the certificate is given, 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.

Note:          For paragraph (b), financial year means a period of 12 months commencing on 1 July: see the Acts Interpretation Act 1901.

          (1B)  This subsection applies if the Secretary has made a determination under subsection (4) in respect of the income stream.

Exception to paragraph (1A)(b)

          (1C)  If, on 30 June in a financial year, an actuarial certificate referred to in paragraph (1A)(b) is in force in relation to an income stream, then paragraph (1A)(b) does not apply in relation to the next financial year (the later year) for the period:

                     (a)  beginning on 1 July of the later year; and

                     (b)  ending at the earlier of the following:

                              (i)  the start of the first day in the later year on which any actuarial certificate is given to the Secretary in relation to that income stream;

                             (ii)  the end of the period of 26 weeks beginning on 1 July of the later year.

Guidelines relating to actuarial certificates

          (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.

One certificate a financial year

          (1E)  For the purposes of paragraph (1A)(b), if an actuarial certificate is given to the Secretary in a financial year in relation to an income stream, then any actuarial certificate given to the Secretary later in that financial year in relation to that income stream has no effect.

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).

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

                     (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 trust that is a registered charity; 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 (Transitional Provisions) Act 1997.

daily accommodation contribution has the same meaning as in the Aged Care Act 1997.

daily accommodation payment 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 subsections (10) and (10AAA).

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).

refundable deposit has the same meaning as in the Aged Care Act 1997.

refundable deposit balance has the same meaning as in the Aged Care Act 1997.

unrealisable asset has the meaning given by subsections (12) and (13).

value of a charge or encumbrance on an asset has the meaning given by subsection (3).

value of a liability has the meaning given by subsection (3A).

value of a particular asset has the meaning given by subsection (2).

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.

       (3AA)  To avoid doubt, a refundable deposit balance in respect of a refundable deposit paid by a person is taken to be an asset of the person.

          (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 (Transitional Provisions) 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

                   (ba)  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 a daily accommodation payment or a daily accommodation contribution (or would be so 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), (b) or (ba), 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 not 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:

member of an ordinary couple with different principal homes has the meaning given by subsection (2).

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), (7) and (8).

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 this section.

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

                   (db)  an amount of an AVTOP 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

                   (dc)  the sum of NDIS amounts paid to the person and any return on those amounts that the person earns, derives or receives, less the sum of amounts spent by the person in accordance with an NDIS plan under which the amounts were paid; 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—$5,000; or

                     (b)  in any other case—$10,000.

             (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).

             (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:

                     (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.

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 a person’s 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:

energy supplement component means the energy supplement worked out under point 1064‑C3 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.

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 of the table in point 1064‑E4.

pension supplement component 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 determination 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.

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; or

                     (h)  an amount of an AVTOP 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

                      (i)  the sum of NDIS amounts paid to the person and any return on those amounts that the person earns, derives or receives, less the sum of amounts spent by the person in accordance with an NDIS plan under which the amounts were paid.

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 22, 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 22, 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).