Social Security Act 1991

a provision of this Act refers to a determination made, approval given or other act done by the Secretary; and

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;

Under subsection 23(1), Secretary generally means the Secretary of the Department. Applying section 19A of the Acts Interpretation Act 1901 (which deals with references in provisions of Acts to the Department), the Secretary referred to in many provisions of this Act or the Administration Act will be the Employment Secretary.

In this Act, unless the contrary intention appears:

a person who was a veteran for the purposes of any provisions of the Veterans’ Entitlements Act; or

a person who was a member of the forces for the purposes of Part IV of that Act; or

a person who was a member of a peacekeeping force for the purposes of Part IV of that Act; or

a person who was a member within the meaning of the Military Rehabilitation and Compensation Act for the purposes of that Act;

a person who was a veteran for the purposes of any provisions of the Veterans’ Entitlements Act; or

a person who was a member of the Forces for the purposes of Part IV of that Act; or

a person who was a member of a Peacekeeping Force for the purposes of Part IV of that Act; or

a person who was a member within the meaning of the Military Rehabilitation and Compensation Act for the purposes of that Act;

Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

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

both of the following conditions are met:

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;

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

all of the following conditions are met:

the person has a relationship with another person, whether of the same sex or a different sex (other person);

the person is not legally married to the other person;

the relationship between the person and the other person is, in the Secretary’s opinion (formed as mentioned in subsection (3)), a de facto relationship (subject to subsection (2A));

both the person and the other person are over the age of consent applicable in the State or Territory in which they live;

the person and the other person are not within a prohibited relationship.

The Secretary may form the opinion mentioned in subparagraph (2)(b)(iii) (de facto relationship) only if, as part of forming that opinion (and having regard to all the circumstances of the relationship as mentioned in subsection (3)), the Secretary is satisfied that the person and the other person are not living separately and apart on a permanent or indefinite basis.

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:

the financial aspects of the relationship, including:

any joint ownership of real estate or other major assets and any joint liabilities; and

any significant pooling of financial resources especially in relation to major financial commitments; and

any legal obligations owed by one person in respect of the other person; and

the basis of any sharing of day‑to‑day household expenses;

the nature of the household, including:

any joint responsibility for providing care or support of children; and

the living arrangements of the people; and

the basis on which responsibility for housework is distributed;

the social aspects of the relationship, including:

whether the people hold themselves out as married to, or in a de facto relationship with, each other; and

the assessment of friends and regular associates of the people about the nature of their relationship; and

the basis on which the people make plans for, or engage in, joint social activities;

any sexual relationship between the people;

the nature of the people’s commitment to each other, including:

the length of the relationship; and

the nature of any companionship and emotional support that the people provide to each other; and

whether the people consider that the relationship is likely to continue indefinitely; and

whether the people see their relationship as a marriage‑like relationship or a de facto relationship.

A person is not a member of a couple if a determination under section 24 is in force in relation to the person.

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.

A person who:

has claimed youth allowance and is not independent within the meaning of Part 3.5; or

is receiving a youth allowance and is not independent within the meaning of Part 3.5; or

is a member of a couple of which a person referred to in paragraph (b) is the other member;

the provisions of this Act referred to in the table at the end of this subsection; and

any provision of this Act that applies for the purposes of a provision mentioned in paragraph (d); and

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.

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).

Where 2 people are members of a couple, they are members of an illness separated couple if:

they are unable to live together in their home as a result of the illness or infirmity of either or both of them; and

because of that inability to live together, their living expenses are, or are likely to be, greater than they would otherwise be; and

that inability is likely to continue indefinitely.

Where 2 people are members of a couple, they are members of a respite care couple if:

one of the members of the couple has entered approved respite care; and

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.

For the purpose of this Act, a person is in approved respite care on a particular day if the person accesses short‑term funded aged care services (within the meaning of the Aged Care Act 2024) through the service group residential care (within the meaning of that Act) on that day.

Two people are members of a temporarily separated couple if they:

are members of a couple for the purposes of this Act; and

are living separately and apart from each other but not on a permanent or indefinite basis; and

are neither an illness separated nor a respite care couple.

For member of a couple see subsection 4(2) and section 24.

For the purposes of this Act:

a person is partnered if the person is a member of a couple; and

a person is partnered (partner getting neither pension nor benefit) if the person is a member of a couple and the person’s partner:

is not receiving a social security pension; and

is not receiving a social security benefit; and

is not receiving a service pension, income support supplement or a veteran payment; and

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:

a social security pension; or

a social security benefit; or

a service pension, income support supplement or a veteran payment; and

a person is partnered (partner getting pension) if the person is a member of a couple and the person’s partner is receiving:

a social security pension; or

a service pension, income support supplement or a veteran payment; and

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

a person is partnered (partner in gaol) if the person is a member of a couple and the person’s partner is:

in gaol; or

undergoing psychiatric confinement because the partner has been charged with committing an offence.

For social security pension see subsection 23(1).

For in gaol see subsection 23(5).

For psychiatric confinement see subsections 23(8) and (9).

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

an ancestor or a descendant of the partner; or

a brother, sister, half‑brother or half‑sister of the partner.

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.

In this Act, unless the contrary intention appears:

(except in Part 2.11, section 592L, subsection 1067A(10L) and the Youth Allowance Rate Calculator in section 1067G):

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

in relation to an adopted child—an adoptive parent of the child; or

in Part 2.11, section 592L, subsection 1067A(10L) and the Youth Allowance Rate Calculator in section 1067G, in relation to a person (relevant person):

a natural parent, adoptive parent or relationship parent of the relevant person with whom the relevant person normally lives; or

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

any other person (other than the relevant person’s partner) on whom the relevant person is wholly or substantially dependent; or

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.

the ABSTUDY Scheme; or

a Student Financial Supplement Scheme; or

the Veterans’ Children Education Scheme; or

the scheme to provide education and training under section 258 of the Military Rehabilitation and Compensation Act; or

the Post‑Graduate Awards Scheme.

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)).

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

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

A person is a student child at a particular time if:

at the time, the person:

has reached 16, but is under 22, years of age; and

is receiving full‑time education at a school, college or university; and

the person’s income in the financial year in which that time occurs will not be more than $6,403.

A person is a young person at a particular time if at that time the person:

is under 16 years of age; or

is a student child.

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:

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

the young person:

is not a dependent child of someone else under paragraph (a) or (aa); and

is wholly or substantially in the adult’s care.

For paragraph (a), see also subsection (16).

A young person who has not turned 16 cannot be a dependent child if:

the young person is not in full‑time education; and

the young person is in receipt of income; and

the rate of that income exceeds $107.70 per week.

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

Subject to subsections (5) to (8), a young person is a dependent child of another person at a particular time if:

at that time, the young person:

has reached 16, but is under 22, years of age; and

is wholly or substantially dependent on the other person; and

the young person’s income in the financial year in which that time occurs will not be more than $6,403.

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.

A young person cannot be a dependent child for the purposes of this Act if:

the young person is receiving a social security pension; or

the young person is receiving a social security benefit; or

the young person is receiving payments under a program included in the programs known as Labour Market Programs.

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:

if the adult is an Australian resident:

the young person is an Australian resident; or

the young person is living with the adult; or

if the adult is not an Australian resident:

the young person is an Australian resident; or

the young person has been an Australian resident and is living with the adult outside Australia; or

the young person had been living with the adult in Australia and is living with the adult outside Australia.

For Australian resident see subsection 7(2).

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:

if the adult is an Australian resident:

the young person is an Australian resident or a resident of Australia; or

the young person is living with the adult; or

if the adult is not an Australian resident—the young person is an Australian resident or a resident of Australia.

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.

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.

A person is a prescribed student child if:

the person is a young person who has reached 16, but is under 22, years of age; and

the young person is qualified to receive payments under a prescribed educational scheme.

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:

the young person is receiving a payment under a prescribed educational scheme; or

someone else is receiving, in respect of the young person, a payment under a prescribed educational scheme; or

the Secretary has not formed the opinion that:

the young person will not, or would not if an application were duly made, receive a payment under a prescribed educational scheme; and

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.

For the purposes of subsection (11), a young person is not qualified to receive a payment under a prescribed educational scheme if:

the young person is not receiving a payment under a prescribed educational scheme; and

no other person is receiving, in respect of the young person, a payment under a prescribed educational scheme; and

the Secretary is satisfied that the educational scheme rate would be less than the social security rate.

For the purposes of subsection (13):

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

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.

A person is the principal carer of a child if:

the child is a dependent child of the person; and

the child has not turned 16.

The definition of dependent child in subsection (2) requires:

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

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.

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:

the person is the step‑parent of the child; and

the person is living with the child and a parent of the child; and

the person and the parent are members of the same couple.

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:

at the start of a period not exceeding 8 weeks, the child leaves the person’s care; and

throughout the period, the child is the dependent child of another person; and

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.

Only one person at a time can be the principal carer of a particular child.

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:

make a written determination specifying one of the adults as the principal carer of the child; and

give a copy of the determination to each adult.

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.

Subject to subsection (20B), a person is not the principal carer of any child if:

the person is a member of a couple; and

the other member of the couple is, or apart from this subsection would be, the principal carer of one or more children; and

the other member of the couple is receiving parenting payment, youth allowance, jobseeker payment or special benefit; and

the payment, allowance or benefit is based on or affected by the other member of the couple being the principal carer of a child.

If:

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

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

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 determination has effect accordingly, despite subsection (20A).

The Secretary must give a copy of the determination to each member of the couple.

If a child:

leaves Australia temporarily; and

continues to be absent from Australia for more than 6 weeks;

the child is in the company of a person to whom Division 2 of Part 4.2 applies; and

but for this subsection, the person would be the principal carer of the child; and

the person’s portability period (within the meaning of that Division) for a social security payment:

that the person was receiving immediately before the person’s absence from Australia; or

the person’s claim for which was granted during the absence;

For the purposes of subsection (21), in determining if an absence is temporary, regard must be had to the following factors:

the purpose of the absence;

the intended duration of the absence;

the frequency of such absences.

If a child:

is born outside Australia; and

continues to be absent from Australia for a period of more than 6 weeks immediately following the child’s birth;

the child is in the company of a person to whom Division 2 of Part 4.2 applies; and

but for this subsection, the person would be the principal carer of the child; and

the person’s portability period (within the meaning of that Division) for a social security payment:

that the person was receiving immediately before the person’s absence from Australia; or

the person’s claim for which was granted during the absence;

If:

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

the child comes to Australia; and

the child leaves Australia less than 6 weeks later;

If:

someone is a child of a person because of:

the definition of child in subsection (1); or

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

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

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

For the purposes of this Act, a person is to be treated as a single person sharing accommodation if the person:

is not a member of a couple; and

has no dependent children; and

has, in common with one or more other people, the right to use at least one major area of accommodation.

A person is not to be treated as a single person sharing accommodation if the person:

pays, or is liable to pay, amounts for the person’s board and lodging; or

is residing in exempt accommodation (see subsections (5A), (5B) and (5C)); or

is the recipient of a disability support pension or a carer pension; or

is residing in a nursing home.

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.

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.

If:

a person lives alone in a caravan or mobile home, or on board a vessel; or

a person shares accommodation in a caravan, mobile home or vessel solely with one or more recipient children of the person;

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.

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:

the premises are known as a boarding house, guest house, hostel, hotel, private hotel, rooming house, lodging house or similar premises;

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;

staff are retained by the proprietor or manager of the premises to work in the premises on a daily or other frequent regular basis;

the residents lack control over the day‑to‑day management of the premises;

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);

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;

the accommodation is not private residential accommodation, having regard to:

the number and nature of bedrooms in the premises; or

the number of people who are not related to one another living at the premises; or

the number and nature of bathrooms in the premises;

the person’s accommodation has not been offered to the person on a leasehold basis;

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;

the person’s accommodation is available on a daily or other short‑term basis.

Each of the characteristics set out in subsection (5B) points towards the accommodation in question being exempt accommodation.

In this section:

a bathroom;

a kitchen;

a bedroom.

a social security payment;

a payment under the ABSTUDY Schooling scheme or the ABSTUDY Tertiary scheme;

a service pension;

a veteran payment;

a youth training allowance.

A person is a registered and active foster carer if the Secretary is satisfied that:

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

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.

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.

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

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

the person is suitably involved in providing and supervising that education.