Social Security (Exempt Lump Sum - Compensation Payments in respect of certain War related Internments) Determination 2017

This instrument, the Social Security (Exempt Lump Sum - Compensation Payments in respect of certain War related Internments) Determination 2017, declares specific compensation payments to be "exempt lump sums" for the purposes of paragraph 8(11)(d) of the Social Security Act 1991 (the Act). The operative provision is section 6: "For the purposes of paragraph 8(11)(d) of the Act, the amount of a compensation payment is an exempt lump sum." Section 5 supplies the operative definition of "compensation payment" by reference to three discrete categories: (a) payments to World War Two Japanese Internees under the Compensation (Japanese Internment) Act 2001; (b) payments for North Korean Internees under Part 2 of the Veterans’ Entitlement (Clarke Review) Act 2004; and (c) payments for World War Two European Internees under Schedule 5 of the Social Security and Veterans’ Affairs Legislation Amendment (One-off Payments and Other 2007 Budget Measures) Act (see s 5).

The instrument is made by a delegate of the Secretary of the Department of Social Services, Anita Davis, under paragraph 8(11)(d) of the Act (see s 3 and the signature block). It revokes five earlier determinations that covered similar subject matter (listed in s 4). Commencement is governed by the table in section 2: the instrument as a whole commenced "the day after this instrument is registered," recorded as 21 January 2017 (see s 2 and the commencement table). The table also contains a note that "Any information in column 3 of the table is not part of this instrument" and that the table relates only to the instrument "as originally made" (s 2(2) and the table notes).

Mechanically, the instrument does a single legal act: it classifies the defined compensation payments as exempt lump sums for the statutory purpose identified. The determination does not itself create the underlying compensation entitlements, specify administrative procedures for claiming the exemption, set time limits, prescribe documentary requirements, or attach penalty provisions. Those matters remain for the Social Security Act 1991, the statutes that provide the compensation payments, and administrative practice.

The instrument therefore changes how the amounts defined in s 5 are to be treated under paragraph 8(11)(d) of the Act by excluding them from the category of lump sums that would otherwise be counted under the Act’s means or assets testing regime. The source of those payments is external statutes; this determination only treats their amounts as exempt for the stated paragraph of the Act (s 6). The revocation clause (s 4) removes several earlier determinations that had previously performed a similar task.

The instrument rests on a small number of legal and administrative concepts, each established in the instrument text.

• Exempt lump sum. The core concept is that certain amounts are to be treated as "exempt lump sums" for the specific statutory reference in paragraph 8(11)(d) of the Social Security Act 1991. Section 6 provides the legal determination that the amount of a defined "compensation payment" is an exempt lump sum "for the purposes of paragraph 8(11)(d) of the Act." The instrument does not define "exempt lump sum" itself; it operates by reference to the existing meaning in the Act.

• Compensation payment (defined). Section 5 defines the phrase "compensation payment" exclusively by reference to three sources. Each subparagraph identifies an originating statute or legislative instrument under which a payment is made: (a) the Compensation (Japanese Internment) Act 2001 for World War Two Japanese Internees; (b) Part 2 of the Veterans’ Entitlement (Clarke Review) Act 2004 for North Korean Internees; and (c) Schedule 5 of the Social Security and Veterans’ Affairs Legislation Amendment (One-off Payments and Other 2007 Budget Measures) Act for World War Two European Internees. The instrument therefore ties the meaning of "compensation payment" to payments authorised by those named Acts rather than to a broader factual description.

• Delegated decision-making. Section 3 records the statutory basis for the instrument: it is made under paragraph 8(11)(d) of the Social Security Act 1991. The signature block shows the instrument was made by a delegate of the Secretary in the Department of Social Services. The instrument, therefore, is an exercise of delegated administrative power under the Act.

• Revocation and substitution. Section 4 expressly revokes a set of predecessor determinations (identified by instrument title and year). Those revoked instruments previously addressed the same subject matter and are replaced by this determination.

• Commencement mechanics and published-table caveat. Section 2 contains the formal commencement table and an express caveat that the table’s Column 3 content is not part of the instrument (s 2(2)), and that the table relates only to the instrument as originally made. The table entry records that the entire instrument commenced the day after registration, logged as 21 January 2017.

These concepts combine to produce a narrow legal effect: the Department of Social Services, via delegated authority, declares that amounts paid under specified statutes to identified internment cohorts should be treated as exempt lump sums for the cited paragraph of the Social Security Act 1991. The instrument does not amend the underlying payment schemes, nor does it add procedural requirements; rather it stipulates a classification for the Act's purposes.

The instrument affects three groups directly and several others indirectly, as established in the text.

• Recipients of the defined compensation payments. The immediate class of people directly affected are those who receive payments that fall within the definition in s 5. That definition identifies three discrete cohorts by reference to the statutory source of their payment: World War Two Japanese Internees receiving payments under the Compensation (Japanese Internment) Act 2001; North Korean Internees receiving payments under Part 2 of the Veterans’ Entitlement (Clarke Review) Act 2004; and World War Two European Internees receiving payments under Schedule 5 of the Social Security and Veterans’ Affairs Legislation Amendment (One-off Payments and Other 2007 Budget Measures) Act (s 5(a)-(c)). The instrument does not extend beyond those statutory categories.

• Applicants and recipients under the Social Security Act 1991. Persons who are current or prospective recipients of Social Security Act entitlements whose means or assets assessments would otherwise have taken a lump sum into account under paragraph 8(11)(d) are affected in so far as a defined compensation payment they receive is classified as exempt. The instrument’s operative declaration in s 6 changes the treatment of qualifying payments "for the purposes of paragraph 8(11)(d) of the Act," thereby altering how such payments are treated in the social security assessment process governed by that paragraph.

• The Department of Social Services and its delegates. The Department, and officials administering claims under the Social Security Act 1991, are affected because the department must implement this classification in assessment, record-keeping and decision-making. The instrument was made by a delegate of the Secretary (s 3 and signature block), and its language imposes an administrative rule that will be applied by the Department in processing cases that invoke paragraph 8(11)(d).

• Entities that administer or pay the compensation. Although the instrument does not alter the legal entitlement to the compensation payments themselves (those are created by the named Acts), payers and administrators of the underlying compensation should be aware that the amounts they disburse will, by this determination, be treated as exempt lump sums for the purposes of the Social Security Act. The instrument identifies the statutory source of each payment category (s 5), so administrators of those schemes will need to be conscious of the classification when advising or certifying payments.

This instrument primarily confers a rights-like classification and does not create new duties or criminal sanctions within its text. The key legal effects that amount to duties or rights, as drawn from the instrument, are as follows:

• Right: classification as an exempt lump sum. Section 6 confers the right, for the purposes of paragraph 8(11)(d) of the Social Security Act 1991, that "the amount of a compensation payment is an exempt lump sum." That is a legal status that operates in the social security assessment framework. The right is conditional on the payment being a "compensation payment" as defined in s 5. The instrument thus secures a benefit in legal classification for persons who receive payments under the listed Acts.

• Administrative duty: to apply the classification in assessments. While the instrument does not explicitly state duties, it necessarily imposes an administrative duty on the Department of Social Services and its decision-makers to treat qualifying compensation payments as exempt when administering paragraph 8(11)(d) of the Act. That duty follows from the instrument’s declaratory effect in s 6 and from the instrument being made under the Act (s 3). The instrument itself does not lay out implementation procedures, obliges particular certification or record-keeping steps, or specify appeal routes; those operational duties are contingent on the Act and departmental practice.

• Duty to comply with definitions. For the exemption to apply, the amount must be a "compensation payment" as defined in s 5. The instrument therefore requires a factual and legal determination: decision-makers must verify that a payment is made under one of the three listed statutory provisions. This creates an implicit duty to identify the statutory source of a payment in administrative files when applying the exemption.

• No new obligations on recipients in the instrument text. The instrument does not impose express obligations on recipients, such as notification or application requirements to obtain the exemption. It also does not set out procedural avenues for recipients to assert the exemption or to appeal a decision denying it; those procedural rights and obligations will be governed by the Act and ordinary administrative law and departmental processes.

• No penalties imposed here. The instrument contains no penalty, civil sanction, or criminal provision. Any enforcement or sanction for false statements or misuse of payments will arise, if at all, under the Social Security Act 1991 or the legislation creating the compensation payments, not in this instrument.

The instrument contains no express penalty, enforcement mechanism, or compliance sanction. It is a determinative provision that classifies certain amounts as exempt lump sums; it does not create criminal offences, civil penalties, or specific administrative enforcement tools.

Relevant observations from the text:

• Absence of sanctions in the instrument. Sections 1-6, including the operative s 6, are declaratory and administrative in nature. There are no clauses in this instrument imposing fines, authorising garnishment, prescribing investigative powers, or specifying corrective procedures in the event of non-compliance or misstatement.

• Enforcement will occur through the Act and administrative practice. Because the instrument operates "for the purposes of paragraph 8(11)(d) of the Act" (s 6), any enforcement, recovery, overpayment adjustment, or sanction that arises from misidentification of exempt lump sums must be pursued under the Social Security Act 1991 and the Department’s normal administrative mechanisms. The instrument itself does not modify or prescribe those enforcement powers. Practitioners must therefore look to the Act and departmental policy for enforcement mechanisms.

• Verification burden and administrative remedies are silent. The instrument establishes what is to be treated as exempt, but it does not specify verification standards, documentary requirements, time limits for notification, or the evidentiary standard decision-makers must apply to determine whether a payment is a qualifying "compensation payment." Those procedural enforcement and verification details will be handled under the Act and departmental procedures and are not addressed in this instrument.

• Revocation of predecessor instruments. Section 4 revokes prior determinations that may have included procedural or transitional wording. The revocation removes those instruments from the regulatory space and leaves the current determination as the operative treatment. If enforcement or administrative practices were specified in the revoked instruments, such provisions are no longer in force; however, this instrument does not record any transitional enforcement provisions or savings for past actions.

Practically, this means that compliance and enforcement dimensions relevant to recipients and administrators (for example, consequences of misreporting, mechanisms for recovery of overpaid social security benefits, appeals against departmental classification decisions) must be sought in the Social Security Act 1991 and in departmental policy and practice, not in this determination. The instrument changes classification; it does not supply the enforcement architecture.

The instrument deliberately operates by cross-reference to other statutes and to the Social Security Act 1991. The interaction occurs in several clear modes as set out in the instrument.

• Made under paragraph 8(11)(d) of the Social Security Act 1991 (s 3). This is the primary direct legal interaction. The instrument alters the application of that paragraph by declaring certain payments to be exempt lump sums "for the purposes of paragraph 8(11)(d) of the Act" (s 6). The precise legal effect in day-to-day assessments will therefore depend on the text and operation of paragraph 8(11)(d) in the Act, which is the statutory provision the instrument invokes. The instrument does not itself restate the content of paragraph 8(11)(d), but it modifies its operation by classification.

• Dependence on other statutes for the definition of compensation payments (s 5). The instrument does not create the compensation payments; it references three separate Acts that do: the Compensation (Japanese Internment) Act 2001; the Veterans’ Entitlement (Clarke Review) Act 2004 (Part 2); and Schedule 5 of the Social Security and Veterans’ Affairs Legislation Amendment (One-off Payments and Other 2007 Budget Measures) Act. The instrument thus interacts with those source statutes by relying on them to identify the payments whose amounts are to be treated as exempt lump sums under the Social Security Act. Any changes to those source statutes could alter the population of payments covered by this determination without any change to this instrument, depending on the nature of the amendment to the source statutes.

• Revocation of prior determinations (s 4). The instrument expressly revokes five predecessor determinations, all of which had titles indicating they dealt with exempt lump sums and compensation payments in respect of World War Two internments. Those prior instruments are removed from the regulatory field and replaced by this determination. The revocation clause therefore interacts with the statutory history of administrative instruments in the social security regulatory framework. It does not, however, set out transitional arrangements or savings, so any interplay between past decisions made under the revoked instruments and present practice must be managed under the Act or by departmental policy.

• Commencement note and published-table caveat (s 2). Section 2 contains the commencement table and an express statement that "Any information in column 3 of the table is not part of this instrument" and that the table is limited to the instrument "as originally made." This note interacts with the law of statutory instruments and publication; it warns users not to treat informational content in certain table columns as having legal force. It also fixes the instrument’s operative date as recorded.

The instrument itself contains limited amendment-history material but does provide a clear record of its immediate provenance and predecessors.

• Date of making and commencement. The instrument is dated and signed by Anita Davis, Acting Branch Manager, International and Means Test Policy Branch, Department of Social Services, dated 18 January 2017 (signature block). Section 2 provides the commencement table and records that "The whole of this instrument" commences "the day after this instrument is registered," with that day recorded as 21 January 2017 in the table. Section 2(2) adds the caveat that information in Column 3 of the table is not part of the instrument.

• Revocation of five earlier instruments (s 4). The instrument expressly revokes the following prior instruments:

  • Social Security Exempt Lump Sum Determination No.2 of 2001 (FACS)
  • Social Security Exempt Lump Sum Determination No.3 of 2004 (FACS)
  • Social Security Exempt Lump Sum (Compensation payments in respect of certain World War 2 internments) (FaCSIA) Determination 2007
  • Social Security Exempt Lump Sum (Compensation payments in respect of certain World War 2 internments) (DEST) Determination 2007
  • Social Security Exempt Lump Sum (Compensation payments in respect of certain World War 2 internments) (DEWR) Determination 2007

  Those revocations indicate that this determination replaces and consolidates earlier administrative instruments that previously governed the exemption treatment for similar compensation payments.

• No further amendments recorded in the text. The instrument does not contain any clauses that purport to amend its own provisions over time, nor does it include transitional provisions or savings clauses for actions taken under the revoked instruments. The instrument’s text, as provided, represents the original instrument as made on the dates recorded.

• Table note limiting publishing edits (s 2(2)). Section 2(2) explicitly permits editorial changes to Column 3 information in published versions without affecting the instrument itself. That provision may matter for researchers comparing published copies of the instrument against other database entries, because Column 3 content is expressly non-operative.

• No recorded subsequent variations in this text. The supplied instrument does not include a schedule of later amendments, and there is no indication in the instrument itself of later repeals, substitutions, or corrections. Where a practitioner needs to establish whether the instrument has been subsequently amended or repealed after the date recorded here, they must consult up-to-date legislative instruments registers or the Commonwealth Gazette; that step is outside the instrument’s text.

The instrument contains no litigation history and names no cases. There are no provisions in the text referring to court or tribunal judgments, no recorded appeals, and no mention of judicial review proceedings. The instrument therefore does not supply any precedent or case law to interpret its application.

Practical consequences of that silence:

• No internal case law citations. Because the instrument cites no cases, practitioners must derive the instrument’s meaning from its text and from the relevant provisions of the Social Security Act 1991 and the statutes that create the compensation payments. Any contested interpretation , for example, disputes over whether a particular payment falls within the defined "compensation payment" categories , would rely on statutory interpretation principles and administrative law, not on guidance from this instrument.

• Disputes to be resolved under general administrative law and the Act. Where a recipient or the Department disagrees about whether an amount qualifies as an exempt lump sum under paragraph 8(11)(d) of the Act as declared by this instrument, available remedies and dispute routes will be provided by the Social Security Act 1991 and by the ordinary administrative law mechanisms (internal review, merits review, judicial review), none of which are specified or altered in this instrument.

• No reported cases in the instrument’s text. Because the instrument does not report or summarise litigation, parties wishing to see how courts or tribunals have treated similar classifications or exemptions must research outside the instrument. The instrument itself provides no litigation guideposts.

In sum, the instrument does not assert any litigation precedent and contains no litigation history. Any legal disputes about application will be resolved through the Social Security Act’s normal review channels and independent adjudication, but the instrument provides no case-based clarifications.

The instrument is concise but contains a number of practical caveats and potential pitfalls for users, administrators, advisers and recipients. These are drawn strictly from the instrument’s text and from what the instrument leaves unspecified.

• Narrow, text-bound definition of "compensation payment" (s 5). The exemption applies only to payments made under the three specified statutory sources. A payment that looks similar in character but is paid under a different statutory head or program will not fall within the definition and therefore will not be exempt under this instrument. Practitioners must verify the statutory basis of any payment before assuming it benefits from the exemption.

• The instrument does not set out administrative or evidentiary procedures. The instrument declares the exempt status (s 6) but is silent about how recipients are to demonstrate that a payment is a qualifying "compensation payment" or about what documentation the Department of Social Services will require for assessment. That silence creates an implementation task for the Department and a compliance task for recipients. Expect the Department to require documentary proof, but the instrument does not prescribe the form, timing, or standard of that proof.

• No transitional or savings provisions for prior payments. The instrument revokes earlier determinations (s 4) and commences from a specified date (s 2). It does not, however, state whether payments made before commencement are to be treated under prior determinations or under this instrument. If a recipient received a payment prior to 21 January 2017 and has ongoing social security assessments, the instrument provides no internal guidance on the retrospective application of the exemption. Practitioners should therefore check departmental practice or seek confirmation from the Department as to how payments made before commencement are to be treated.

• Column 3 of the commencement table is not part of the instrument (s 2(2)). Published versions of the instrument may include explanatory or administrative information in Column 3 of the table that is not legally operative. Readers must not rely on Column 3 wording as carrying legal effect.

• Revocation can change nuance from predecessor instruments. The instrument revokes five predecessor determinations (s 4). If a practitioner relies on wording or transitional detail that existed in an earlier instrument, that detail may no longer be operative. The instrument does not reproduce any previous qualifying language or transitional arrangements; check the current instrument’s text rather than assuming prior wording still applies.

The instrument is short and functionally simple: it requires administrative application by the Department and reliance by recipients and advisers. Compliance means different things for different actors; the following steps are grounded in the instrument’s text and its silences.

For recipients (or their advisers):

• Confirm the statutory basis of the payment. Before asserting the exemption, obtain documentation that the payment was made under one of the statutes identified in s 5: (a) the Compensation (Japanese Internment) Act 2001; (b) Part 2 of the Veterans’ Entitlement (Clarke Review) Act 2004; or (c) Schedule 5 of the Social Security and Veterans’ Affairs Legislation Amendment (One-off Payments and Other 2007 Budget Measures) Act. The instrument defines "compensation payment" exclusively by those references.

• Retain documentary proof. Keep the statutory instrument or payment notice, the payment advice, and any departmental letters that identify the payment’s statutory source. The determination is silent on documentary standards; in practice, decision-makers will expect proof linking the payment to the identified statute.

• Provide information to social security assessors promptly. If you receive a qualifying compensation payment and are claiming social security entitlements, inform the Department and submit the supporting documentation. The instrument does not create a separate application process; the exemption operates "for the purposes of paragraph 8(11)(d) of the Act" (s 6) and must therefore be asserted in the usual administrative forum.

For the Department of Social Services and decision-makers:

• Apply the classification at assessment. When a lump sum question arises under paragraph 8(11)(d) of the Act, identify whether the amount is a "compensation payment" as defined in s 5. If it is, treat the amount as an exempt lump sum in accordance with s 6. Ensure caseworkers are informed that this determination is the operative instrument replacing the revoked instruments listed in s 4.

• Establish and publish verification procedures. Because the instrument does not prescribe documentary or process requirements, the Department should set and publish internal guidance on the proof required to show that a payment is within s 5(a)-(c). That guidance should harmonise with the Department’s normal evidence requirements for social security assessments.

• Update administrative systems and files. Remove reliance on the revoked determinations and ensure that case-management systems reflect the current instrument and the narrow definition in s 5. Where files contain payments made before commencement, determine an approach (consistent with the Act) for handling those cases and document it.