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2022-2023-2024-2025
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SECURITY LEGISLATION AMENDMENT (TECHNICAL CHANGES) BILL
2025
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Social Services, the Hon Amanda Rishworth MP)
SOCIAL SECURITY LEGISLATION AMENDMENT (TECHNICAL CHANGES) BILL
2025
OUTLINE
The Social Security Legislation Amendment (Technical Changes) Bill 2025 (the Bill)
amends the Social Security Act 1991 to make provision for the payment of different
rates for disability support pension recipients aged under 21, depending on their
circumstances. This includes a lower single dependent living at home rate, and a
higher independent rate, consisting with longstanding policy and service delivery
arrangements.
The measures in the Bill make provision for appropriate rates to be available to
disability support pension recipients under 21 (also referred to as "youth" recipients)
based on their circumstances, including their family situation. For example, the
dependent rate may be paid to youth recipients who are undertaking study or training
while living at a home of their parent, and the independent rate may be paid to those
living independently or away from home.
The Bill provides that disability support pension rates for youth recipients are not
affected by whether they are undertaking full-time study or are a new apprentice.
This addresses the unintended impact on payment rates caused by the Employment
and Workplace Relations Legislation Amendment (Welfare to Work and Other
Measures) Act 2005.
The Bill also validates past rate decisions and other matters that were previously
based on the dependent rate, in relation to disability support pension youth
recipients, in line with the policy intent.
FINANCIAL IMPACT STATEMENT
Nil financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
SOCIAL SECURITY LEGISLATION AMENDMENT (TECHNICAL CHANGES) BILL
2025
NOTES ON CLAUSES
Explanation of the clauses
Part 1--Preliminary
Clause 1 - Short title
This clause sets out the short title of this Bill when it becomes law. It specifies that
the Act shall be known as the Social Security Legislation Amendment (Technical
Changes) Act 2025.
Clause 2 - Commencement
This clause provides a table setting out the commencement dates of the whole of the
new Act. The new Act is to commence on the day after the Act receives the Royal
Assent.
Clause 3 - Schedules
This clause provides that legislation that is specified in a Schedule to the new Act is
amended or repealed as set out in the applicable items in the Schedule concerned,
and any other item in a Schedule to the new Act has effect according to its terms.
Schedule 1 - Dependent youth rate for disability support pension
Summary
This Schedule amends the Social Security Act 1991 to confirm the long-standing
policy position to pay a range of rates for disability support pension recipients aged
under 21, including a dependent and independent rate, depending on the person's
circumstances.
Background
The Social Security Act 1991 contains a range of rates for disability support pension
recipients aged under 21 which are based on their circumstances. This includes a
single dependent, living at home rate (currently $410.30 per fortnight for recipients
under 18 years and $472.50 per fortnight for recipients aged 18 to 20) and an
independent rate (currently $663.30 per fortnight).
In 2024, a decision of the former Administrative Appeals Tribunal highlighted
unintended consequences arising from the Employment and Workplace Relations
Legislation Amendment (Welfare to Work and Other Measures) Act 2005 in relation
to the disability support pension rate payable to recipients under 21 in certain
circumstances.
To qualify for disability support pension under section 94 of the Social Security Act
1991, a person must satisfy the "continuing inability to work" test. This is based on a
person being unable to work for 15 hours per week. However, another term defined
in section 16B of the Social Security Act 1991, "partial capacity to work", is based on
a person being unable to work for 30 hours per week.
Pension rate calculator D in section 1066A in Part 3.4A of the Social Security Act
1991 applies to calculate the rate of disability support pension for recipients under 21
who are not permanently blind and do not have a dependent child. Pension rate
calculator E in section 1066B in Part 3.4B of the Social Security Act 1991 applies to
calculate the rate of disability support pension for recipients under 21 who are
permanently blind and do not have a dependent child.
These rate calculators rely on the definition of "independent" in subsection 5(1) of the
Social Security Act 1991, which in turn relies on the independent criteria in
section 1067A of that Act.
One of these independent criteria, in subsection 1067A(12), is based on a person
(who is not studying full-time or is a new apprentice) having a "partial capacity to
work". It follows that a disability support pension recipient may satisfy
subsection 1067A(12) and be eligible for the independent rate under the relevant
rate calculator, on the basis of having a partial capacity to work, provided they meet
all the criteria in this provision. This may be the case even where the recipient is
living at home and being supported by their parent or parents.
The explanatory memorandum to the Employment and Workplace Relations
Legislation Amendment (Welfare to Work and Other Measures) Act 2005 indicates
that subsection 1067A(12) was intended to ensure that young jobseekers with a
partial capacity to work and receiving youth allowance, were exempt from the
parental means test. This was intended to maintain consistency with the disability
support pension parental means test. It was not intended that the amendments
would affect disability support pension, nor change any payment rates. In particular,
there was no intention to introduce any distinction between disability support pension
rates for youth recipients based on whether they are undertaking full-time study or
are a new apprentice.
The amendments made by this Schedule are intended to give effect to the original
policy position, that is, that appropriate disability support pension rates are to be
available to recipients under age 21 based on their circumstances, including their
family situation. The policy objective reflects the long-standing principle in youth
payments that financial support for young people is a shared responsibility between
parents, the Government and young people. This is consistent with the policy
position that higher rates of payment should be targeted to those with greater need,
such as those living independently or away from home.
This Schedule also preserves the validity of all relevant historical rate and associated
decisions in line with the long-standing policy intent.
Explanation of the clauses
Part 1 - Amendments
Social Security Act 1991
Item 1 - Subsection 1067A(12)
Item 1 amends subsection 1067A(12) to ensure it only applies to determine whether
a person is "independent" for the purposes of Part 2.11 (youth allowance),
Part 2.11B (scholarship payments for students), Part 3.5 (youth allowance rate
calculator) and Part 3.7 (rent assistance), except for sections 1070F and 1070N.
Sections 1070F and 1070N are in Part 3.7 and relevantly relate to rent assistance in
respect of disability support pension youth recipients who have their rate calculated
in accordance with pension rate calculator D in section 1066A.
This amendment is intended to ensure that a person cannot satisfy the independent
criteria, for the purposes of Part 3.4A (pension rate calculator D) or Part 3.4B
(pension rate calculator E), or the rent assistance requirements in sections 1070F
and 1070N, based on subsection 1067A(12). However, disability support pension
recipients under 21 may be independent, for the purposes of those rate calculators
and rent assistance provisions, based on another relevant subsection in
section 1067A that applies to them.
Subsection 1067(12) otherwise continues to apply as before for other relevant
purposes. For example, youth allowance recipients who have a partial capacity to
work and otherwise meet the criteria specified in subsection 1067A(12), may be
independent under that provision for youth allowance purposes.
This amendment is intended to confirm the rates payable to disability support
pension recipients under 21, including payment of dependent and independent rates
in appropriate circumstances. This amendment ensures disability support pension
recipients under 21 continue receiving a level of income support that is consistent
with the long-standing intent of legislation and policy.
Part 2 - Validation and application provisions
Item 2 - Validation - disability support pension rate for people with partial
capacity to work
Item 2 is a validation provision that applies to things before commencement. This
provision is intended to preserve the validity of things done, or purportedly done,
before commencement in relation to a person's rate of disability support pension
based on them not being independent, when they were otherwise independent under
subsection 1067A(12) of the Social Security Act 1991.
Subitem 2(1) sets out the circumstances in which the validation provision applies.
This is where all four of the following requirements are satisfied:
(a) Firstly, a thing must have been done, or purportedly done, under a
Commonwealth law before item 2 commences. A "thing" includes a decision
made prior to commencement, such as a decision to pay a person at a
particular rate based on their circumstances.
(b) Secondly, the thing in paragraph (a) must have been done, or purportedly
done, on the basis that a person was not independent, for the purposes of
working out:
(i) the maximum basic rate of disability support pension that was or would
be payable to the person;
(ii) whether the person qualified for rent assistance because the person
complied with subsection 1070F(2) of the Social Security Act 1991. This
provides specific qualification requirements for certain disability support
pension youth recipients; or
(iii) the rate of rent assistance that was payable to the person under
section 1070N of the Social Security Act 1991. This provides rates of
rent assistance for certain disability support pension youth recipients
based on their circumstances.
(c) Thirdly, apart from item 2, the thing done, or purportedly done, must
otherwise be wholly or partly invalid or ineffective only because the person
was actually independent, for the purposes of working out the maximum
basic rate or rent assistance matter specified in subparagraph (b)(i), (ii) or
(iii) (as stated above).
(d) Fourthly, the person must have been independent only because of
subsection 1067A(12) of the Social Security Act 1991. This includes the
person having a "partial capacity to work". This term is defined in
section 16B of the Social Security Act 1991. That is, the person must not
have satisfied any of the other independent criteria in section 1067A, apart
from subsection 1067A(12), for the validation provision to apply.
Where the requirements in subitem 2(1) are met, subitem 2(2) contains the key
validation provision. Subitem 2(2) provides that the thing done, or purportedly done,
as provided in subitem 2(1), is taken to be valid and effective, and to have always
been valid and effective, for all purposes.
Subitems 2(3) and 2(4) are inserted for the avoidance of doubt.
Subitem 2(3) provides that if, apart from subitem 2(2), anything else done or
purportedly done before commencement would otherwise be wholly or partly invalid
or ineffective, then the thing is taken to be, and to have always been, valid and
effective for all purposes. This is intended to clarify that relevant secondary actions
relating to the thing in subitem 2(2) that happened before commencement are also
validated.
Subitem 2(4) provides that subitems 2(2) and 2(3) apply despite any effect they may
have on the accrued rights of any person. That is, it is intended that relevant things
covered by item 2 will be validated, even if the person may have otherwise had
accrued rights relating to that thing.
Item 2 preserves the validity of things done, or purportedly done, in relation to the
working out of relevant disability support pension maximum basic rate and
rent assistance matters specified in paragraph 2(1)(b), in respect of days prior to
commencement of the Bill. The validation provision is intended to confirm the
previous treatment of these things and ensure they are unchanged.
Item 2 deems the historical treatment of relevant matters to be valid and effective,
and to have always been valid and effective. This historical treatment reflects the
intended policy outcome and understanding of the law as it was intended to operate
and is consistent with dependent and independent rates payable to youth allowance
recipients.
This means that if, before commencement, a disability support pension recipient
under 21 received the dependent rate of payment, and the person did not otherwise
satisfy any of the independent criteria in section 1067A except for
subsection 1067A(12), those previous decisions are taken to have always been valid
and effective. This is also the case for any previous rent assistance decisions made
in respect of those disability support pension youth recipients under
subsection 1070F(2) or section 1070N of the Social Security Act 1991, on the same
basis.
Item 2 also has the effect of validating other things done, or purportedly done, before
commencement under the social security law, or another Commonwealth law, that
are based on a working out a person's maximum basic rate of disability support
pension. For example, under subsection 1061JU(1) of the Social Security Act 1991,
the amount of crisis payment payable to a person is half the fortnightly amount at the
maximum basic rate of the social security pension (including disability support
pension) or social security benefit that is payable to the person. Where a disability
support pension youth recipient was receiving the dependent rate at the maximum
basic rate payable to them and was paid an amount of crisis payment based on that
rate, prior to commencement of the Bill, that crisis payment decision is also validated
by item 2.
Another example is section 57G of the A New Tax System (Family Assistance) Act
1999, which applies for the purposes of determining a person's eligibility for single
income family supplement. Subparagraph 57G(3)(b)(i) provides that an individual
may be a "qualifying child" for the purposes of this supplement payment if they are
receiving disability support pension under Part 2.3 of the Social Security Act
1991 and their maximum basic rate is worked out under item 1 or 3 of Table B in
point 1066A-B1 or item 1 or 3 of Table B in point 1066B-B1 of that Act. These tables
are in the disability support pension youth rate calculators, and these table items
refer to the person not being independent. In this case the validation provision
ensures that past decisions to pay single income family supplement based on this
criteria, including the dependent rate being the relevant maximum basic rate
payable, are valid and effective and are undisturbed.
Item 2 is intended to have retrospective effect, however, it does not operate
retrospectively to change anything that occurred in the past, including previous
working out undertaken by Services Australia staff in respect of disability support
pension recipients under 21. The validation provision cannot result in any debts
arising for past periods.
The validation provision does not remove people's rights of review or appeal in
cases where decisions may have been invalid for other reasons.
Item 3 - Application of amendments
Item 3 is an application provision that is intended to clarify the operation of the
amendments to subsection 1067A(12) made by item 1.
Subitem 3(1) provides that the amendments in item 1 apply on and after
commencement to working out the rate of a person's disability support pension in
respect of days occurring before, on or after commencement.
This means that where decisions are made on or after commencement, which
involve working out a person's rate of disability support pension for days before, on
or after commencement, section 1067A as amended by item 1, will apply. This
includes working out undertaken on or after commencement which involves
determining whether the disability support pension recipient is qualified for
rent assistance, and the rate of rent assistance payable to them. This is because
these matters form part of working out a person's rate of disability support pension
under pension rate calculator D (step 4 of the method statement in point 1066A-A1
of the Social Security Act 1991).
Subitem 3(2) provides that where a person's rate of disability support pension was
worked out before commencement, and a determination was made before
commencement that the person was independent, and this is still in effect on
commencement, it is intended that section 1067A of the Social Security Act 1991, as
in force before commencement, will continue to apply for those days before
commencement. This is intended to ensure that disability support pension rate
decisions made before commencement, that were based on the independent rate,
are not affected after commencement by the amendments to section 1067A made by
item 1. It is not intended that any debts will arise in respect of these recipients.
Subitem 3(3) also clarifies that except to the extent provided by subitems 3(1) and
3(2), the amended section 1067A of the Social Security Act 1991 applies to doing a
thing under a Commonwealth law that requires working out the maximum basic rate
of disability support pension that is or would be payable to a person on or after
commencement, or that was or would have been payable to a person before that
commencement. This may include, for example, working out a person's maximum
basic rate of disability support pension for the purposes of determining an amount of
crisis payment under section 1061JU of the Social Security Act 1991, or determining
a person's eligibility for single income family supplement under section 57G of the
A New Tax System (Family Assistance) Act 1999.
Subitems 3(1) and 3(3) are intended to have retrospective effect, however, they do
not operate to create any different outcomes for disability support pension recipients
under 21 in the same circumstances where a relevant thing was done or purportedly
done before commencement and that has been validated by item 2. The application
provision cannot result in any debts arising for past periods.
Subitem 3(4) clarifies the operation of subitems 3(1) to 3(3) for the avoidance of
doubt.
Paragraph 3(4)(a) provides that subitems 3(1) to 3(3) have effect in relation to
disability support pension claims made or granted before, on or after
commencement.
Further, paragraph 3(4)(b) provides that subitems 3(1) to 3(3) have effect even if the
relevant working out of a person's rate of disability support pension, or their
maximum basic rate of disability support pension, is done in connection with the
review of a decision. This includes situations where the working out is done after the
Bill commences, but in relation to a time before commencement.
Paragraph 3(4)(b) includes, without limitation, situations where a review is
undertaken by Services Australia under section 129 of the Social Security
(Administration) Act 1999 following an affected person applying for review of a
decision, and where a Secretary-initiated review of a decision is undertaken in
accordance with section 126 of that Act. This also includes reviews of decisions by
the Administrative Review Tribunal (ART), as provided in Part 4A of the
Social Security (Administration) Act 1999. This ensures relevant working out in
relation to disability support pension youth recipients is consistent with other
recipients in the same circumstances where a relevant thing was done or purportedly
done before commencement and that has been validated by item 2.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
SOCIAL SECURITY LEGISLATION AMENDMENT (TECHNICAL CHANGES) BILL
2025
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instrument listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Social Security Legislation Amendment (Technical Changes) Bill 2025 (the Bill)
amends the Social Security Act 1991 to make provision for the payment of different
rates for disability support pension recipients aged under 21, depending on their
circumstances. This includes a lower single dependent living at home rate, and a
higher independent rate.
The measures in the Bill make provision for appropriate rates to be available to
disability support pension recipients under 21 (also referred to as "youth" recipients)
based on their circumstances, including their family situation. For example, the
dependent rate may be paid to youth recipients who are undertaking study or training
while living at a home of their parent, and the independent rate may be paid to those
living independently or away from home.
The Bill provides that disability support pension rates for youth recipients are not
affected by whether they are undertaking full-time study or are a new apprentice.
This addresses the unintended impact on payment rates caused by the Employment
and Workplace Relations Legislation Amendment (Welfare to Work and Other
Measures) Act 2005. The Bill also validates past rate decisions and other matters
that were previously based on the dependent rate, in relation to disability support
pension youth recipients, in line with the policy intent.
Human rights implications
This Bill engages the following human rights:
• the right to social security (International Covenant on Economic, Social and
Cultural Rights (ICESCR) Article 9; Convention on the Rights of Persons with
Disabilities (CRPD) Article 28(2)(b); Convention on the Rights of the Child
(CRC) Article 26; International Convention on the Elimination of All Forms of
Racial Discrimination (CERD) Article 5(e)(iv); and Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW)
Articles 11(1)(e) and 14(2)(c));
• the right to an adequate standard of living (ICESCR Article 11; and CRPD
Article 28(2)(a)); and
• the right to equality and non-discrimination in the exercise of these rights
(ICESCR Article 2(2); International Covenant on Civil and Political Rights
(ICCPR) Articles 2(1), 16 and 26; CRC Article 2; CERD Articles 2 and 5; and
CEDAW Articles 2, 3, 4 and 15).
The right to social security and right to an adequate standard of living
The Bill engages the right to social security under Article 9 of the ICESCR,
Article 28(2)(b) of the CRPD, Article 26 of the CRC, Article 5(e)(iv) of the CERD and
Articles 11(1)(e) and 14(2)(c) of the CEDAW. The right to social security requires
that a system be established under domestic law, and that public authorities must
take responsibility for the effective administration of the system. The social security
scheme must provide a minimum essential level of benefits to all individuals and
families that will enable them to acquire at least essential health care, basic shelter
and housing, water and sanitation, foodstuffs, and the most basic forms of education.
Article 28(2)(b) of the CRPD provides the recognition of the rights of persons with
disabilities to social protection and to the enjoyment of that right without
discrimination on the basis of disability, and the appropriate steps to safeguard and
promote the realisation of that right including access by persons with disabilities, in
particular women and girls with disabilities and older persons with disabilities, to
social protection programmes and poverty reduction programmes. Social security is
one example of a social protection programme.
Article 26(1) of the CRC recognises the right of every child to benefit from social
security. Article 26(2) provides that where appropriate, the benefits should take into
account the resources and circumstances of the child and persons having
responsibility for the maintenance of the child, and any other relevant considerations.
Article 11 of the ICESCR recognises the right of individuals and their families to an
adequate standard of living. Article 28(2)(a) of the CRPD recognises the right of
persons with disabilities to an adequate standard of living for themselves and
families. The right to an adequate standard of living recognises the right of everyone
to an adequate standard of living for all individuals and their families, including
adequate food, clothing and housing, and to the continuous improvement of living
conditions.
The Bill confirms the long-standing policy position that a range of rates for disability
support pension recipients aged under 21 are available under the Social Security Act
1991, depending on the person's circumstances, including their family situation. This
includes a single dependent, living at home rate and an independent rate. The
policy objective reflects the long-standing principle in youth payments that financial
support for young people is a shared responsibility between parents, the
Government and young people. This is consistent with the policy position that higher
rates of payment should be targeted to those with greater need, such as those living
independently or away from home.
A range of disability support pension youth rates achieves a legitimate objective, as
they balance a person's right to social security with the resources of the community.
Right to equality and non-discrimination in the exercise of these rights
The right to equality and non-discrimination is protected by Article 2(2) of the
ICESCR, Articles 2(1), 16 and 26 of the ICCPR, Article 2 of the CRC, Articles 2 and
5 of the CERD and Articles 2, 3, 4 and 15 of the CEDAW.
This is a fundamental human right that is essential to the protection and respect of all
human rights. It provides that every person is entitled to enjoy their rights without
discrimination of any kind on the basis of a number of prohibited grounds, and that
all people are equal before the law and entitled without discrimination to the equal
and non-discriminatory protection of the law.
The Bill promotes a person's rights of equality and non-discrimination, by ensuring
that rates of disability support pension for recipients under age 21 are appropriate
based on the person's circumstances, including their family situation. This is
consistent with the range of rates, including dependent and independent rates, that
are payable to youth allowance recipients. The Bill ensures there is no distinction
between the disability support pension rates for youth recipients based on whether
they are undertaking full-time study or are a new apprentice.
A range of disability support pension youth rates achieves a legitimate objective, as
they reasonably provide for relevant recipients in similar circumstances to be eligible
for a consistent rate of payment.
Conclusion
The Bill is compatible with human rights because it promotes the protection of the
rights of people with disability in Australia, does not limit or preclude people from
gaining or maintaining access to social security in Australia and ensures the
equitable treatment of people with disability based on their circumstances. To the
extent the Bill limits human rights, these limitations are reasonable, proportionate
and for a legitimate objective.
[Circulated by the authority of the Minister for Social Services,
the Hon Amanda Rishworth MP]