Social Security (Exempt Lump Sum - Pastoral Care and Assistance Scheme) Determination 2017

Direct parties named in the instrument are threefold: recipients of the specified payments, the institutional payers named in the definition, and the Department of Social Services as the issuer of the determination.

Recipients. The instrument applies to “persons who were victims of child abuse or sexual misconduct by a church worker in the context of, or related to, their church role” who receive one-off payments under the named scheme (s5). The instrument does not create the payment or the victim-finding mechanism; it operates only to classify payments that already exist or are made under the scheme. Therefore, people who receive a qualifying Pastoral Care and Assistance Scheme Payment will have the amount treated, for the purposes of paragraph 8(11)(d) of the Act, as an exempt lump sum (s6). That has direct bearing on how their social security means and assets are to be assessed, because the exemption classification changes treatment under the referenced provision of the Act.

Payers. The entities who make the payments are explicitly named: the Anglican Church Diocese of Sydney and the Sydney Anglican Home Mission Society Council (s5). The definition of “Pastoral Care and Assistance Scheme Payment” specifies payments made by “the Anglican Church, Diocese of Sydney or the Sydney Anglican Home Mission Society Council” under the scheme (s5). Payments by other dioceses or organisations are not captured by this instrument. Therefore payers outside the named entities cannot rely on this instrument to ensure exempt treatment for their payments; those payments fall outside the declared class.

The Department of Social Services and its delegate. The instrument is made by a delegate of the Secretary of the Department of Social Services and records the delegate’s name and position (preamble; s1). The Department will be the administrative actor who applies the exemption structure when determining eligibility, means testing and similar processes under the Social Security Act. The instrument’s commencement mechanics (s2) and its revocation of prior determinations (s4) indicate an administrative consolidation under the Department’s auspices.

Indirectly affected parties. Social security recipients with other forms of lump-sum compensation or redress payments may be interested in the instrument’s scope because it creates a narrow category of exempt lump sums. However the instrument itself does not address other compensatory schemes or payments from other religious bodies, government schemes, insurers, or third parties; it is confined to the named scheme and payers (s5; s6).

Geographic and institutional narrowness. Only the named Sydney Anglican bodies are in scope. The instrument therefore affects a narrowly defined cohort of recipients and the named institutions, and it signals to the Department that payments within that cohort are to be treated as exempt lump sums under the referenced paragraph of the Act.

The instrument operates primarily by conferring a classification rather than by imposing new duties or creating new payment entitlements. The key legal effects are rights of classification for recipients and definitional obligations on the instrument’s scope.

Rights of classification for recipients. Section 6 provides the substantive right created by the instrument: the amount of a Pastoral Care and Assistance Scheme Payment is an exempt lump sum for the purposes of paragraph 8(11)(d) of the Social Security Act 1991. That gives recipients of qualifying payments a legal basis to have such payments treated as exempt under the Act’s relevant provision. The instrument does not itself set out procedures for asserting that right; it simply declares the classification.

Lack of payment-creation duty. The instrument does not require the Anglican Church Diocese of Sydney or the Sydney Anglican Home Mission Society Council to make payments. The instrument defines the scheme and the payment, but it does not create an obligation on those bodies to operate the scheme, to make payments to particular individuals, or to determine eligibility for payments (s5; s6). Any administrative or moral obligations of the payers to provide redress are outside the text of this determination.

Administrative duties implicit but not specified. The instrument does not state any specific administrative duties on the Department of Social Services, the delegate, the payers or the recipients concerning proof, record-keeping, notification or timing. The Department will be the agency that applies the exemption in social security assessments, but the instrument supplies no procedural steps for how that application is to be evidenced or contested. Those processes, if any, will arise under the Social Security Act itself or administrative practice, not under this instrument.

Scope obligations. Because the instrument defines the Pastoral Care and Assistance Scheme and the payer entities, the practical legal duty for a claimant or payer who wishes to ensure a payment is treated as exempt is to show that the payment is in the defined class: one-off, paid under the named scheme by the named payers to a person meeting the victim description (s5; s6). The instrument does not elaborate what documentation or thresholds meet that requirement. The instrument also revokes three earlier instruments (s4); administrative duties relating to continuity or transitional arrangements are not specified.

No criminal or civil penalty regime within instrument. The instrument does not impose fines, criminal liability or administrative penalties for non-compliance with the determination itself. Any sanctioning or dispute-resolution process would derive from the Social Security Act or other law, not from this determination.

The text of the determination contains no express penalty, offence, or formal enforcement mechanism. It is a classificatory determination under a statutory head of power and does not itself create criminal or civil sanctions. The instrument’s functions, as recorded in the text, are limited to defining terms, stating commencement, revoking prior instruments and declaring that certain payments are exempt lump sums for the purposes of paragraph 8(11)(d) of the Social Security Act 1991 (s1; s2; s4; s5; s6).

Administrative enforcement. Because the instrument changes how amounts are to be treated under the Social Security Act by declaring them an exempt class, the Department of Social Services, and any decision-maker exercising powers under the Social Security Act, will be the practical enforcers of the instrument’s effect when assessing social security entitlements. The instrument itself does not set out administrative enforcement steps: for example it does not prescribe documentary proof requirements, audit processes, repayment obligations where an incorrectly classified payment was relied on, or review and appeal mechanisms. Any enforcement of incorrect claims, or administrative corrections, will depend on provisions and processes in the Social Security Act and associated administrative practice, which are not reproduced in this instrument.

No internal compliance or monitoring regime. The determination does not create an internal monitoring regime for the named payers or require them to notify the Department when payments are made. It also does not require recipients to take any particular steps to claim the exempt status. The absence of those procedural provisions means that enforcement of the classification will occur through the Social Security Act’s existing assessment, review, and compliance mechanisms rather than through new mechanisms created by this instrument.

Revocation and continuity. The instrument revokes three prior determinations (s4). The text does not specify transitional enforcement rules linked to that revocation. Any enforcement questions concerning past or transitional payments would need to be resolved against the Social Security Act and administrative practice, because the instrument contains no specific retrospective or transitional enforcement clauses.

The instrument situates itself explicitly within the Social Security Act 1991 framework and modifies how a defined class of payments is to be treated under that Act. The interaction is therefore primarily classificatory: it tells the Social Security Act machinery to treat certain payments as exempt lump sums for the purposes of paragraph 8(11)(d) of the Act (s3; s6).

Dependence on the Social Security Act. The instrument is made under paragraph 8(11)(d) of the Social Security Act 1991 (s3). It does not reproduce or alter the text of that paragraph. The legal effect of the instrument depends on the operation of paragraph 8(11)(d) within the Act. The determination only declares that the amount of a Pastoral Care and Assistance Scheme Payment falls within the exempt-lump-sum category contemplated by that paragraph. Any detailed legal consequences about how the exemption modifies means tests, waiting periods, or other facets of social security law arise from the Social Security Act’s substantive provisions, which are not set out in this instrument.

Interaction with prior determinations. The instrument revokes three earlier determinations with similar subject-matter designations from 2007 (s4). Those prior determinations had departmental labels FaCSIA, DEWR, and DEST. Revocation indicates the instrument is intended to replace earlier classificatory instruments; however, the instrument contains no transitional clauses beyond the general commencement provision (s2). Therefore the practical legal interaction with earlier determinations is one of replacement, but the instrument does not specify how previously classified payments are to be treated beyond the general commencement and revocation.

No interaction with other compensation or redress laws in the instrument. The text does not reference, purport to modify, or purport to be limited by other statutes governing compensation, tort law, criminal compensation, victims-of-crime schemes, insurance law, or ecclesiastical law. The scope is strictly to declare that payments of the defined class are exempt lump sums under the Social Security Act’s specified paragraph. Payments made under other schemes, or by other religious entities or public bodies, are outside this instrument’s declared effect (s5; s6).

Administrative practice interface. Because the instrument provides a narrow definitional classification, its practical impact depends on how the Department and decision-makers applying the Social Security Act interpret and administratively document payments. The instrument does not prescribe procedures for cross-checking with the payers, for verifying the pastoral nature of the payment, or for resolving disputes between a payer and the Department about the nature of a payment. Those procedural interfaces will be determined by the Social Security Act’s mechanisms and by the Department’s operational policies, not by this instrument.

This instrument was made on 18 January 2017 by a delegate of the Secretary of the Department of Social Services and is titled the Social Security (Exempt Lump Sum - Pastoral Care and Assistance Scheme) Determination 2017 (preamble; s1). Section 2 contains a commencement table that records the instrument’s commencement rule: the whole of the instrument commences the day after the instrument is registered. The instrument notes that the commencement table in the text relates only to the provisions “as originally made” and will not be amended to deal with later amendments of this instrument (s2 table explanatory note).

Section 4 records the revocation of three earlier instruments titled:

• Social Security Exempt Lump Sum (Pastoral Care and Assistance Scheme Payment) (FaCSIA) Determination 2007
• Social Security Exempt Lump Sum (Pastoral Care and Assistance Scheme Payment) (DEWR) Determination 2007
• Social Security Exempt Lump Sum (Pastoral Care and Assistance Scheme Payment) (DEST) Determination 2007

That revocation indicates an administrative consolidation or reissue under the Department of Social Services (s4). The instrument does not provide dates for registration or publication beyond the made date, other than the commencement mechanics in s2, nor does it include subsequent amendments or a history of later revisions within its text. The instrument’s own commencement table contains a note explicitly stating that the table relates only to the instrument “as originally made” and will not be amended to reflect later changes, which is a standard drafting form and indicates that amendment records would be maintained in consolidated published versions rather than in the instrument’s printed table (s2).

No further amendments are recorded in the text provided. The instrument therefore, as produced, shows a single-making event in January 2017, immediate commencement as specified, and clearance of prior determinations dating from 2007. The instrument does not record any later amendment dates, repeal, or modification beyond the revocation of those 2007 instruments.

The instrument itself contains no references to litigation, judicial decisions, or tribunal determinations. It does not cite any case law or list any legal proceedings. The text is a short delegated legislative instrument that records a declaratory classification; it does not summarise, attach or reference litigation concerning the Pastoral Care and Assistance Scheme or the payments it defines.

Because the instrument is limited to the definition and classification of a narrow class of payments and revocation of prior instruments, the instrument’s text does not provide a record of disputes, appeals, or litigation outcomes. Any judicial or administrative review arising from contested treatment of a Pastoral Care and Assistance Scheme Payment under the Social Security Act 1991 would be handled under the dispute-resolution, merits review or judicial review provisions of that Act and other relevant procedures, none of which are reproduced in this determination.

The absence of litigation history in the instrument should not be read as an absence of disputes in practice; it only indicates that the instrument does not itself catalogue or report litigation. Users seeking litigation outcomes or interpretative guidance about how the exemption operates empirically will need to consult decision records, tribunal determinations or court judgments under the Social Security Act and administrative law, which are outside the text of this instrument.

Narrow scope by payer and geography. The instrument’s definition confines the exempt class to payments made by the Anglican Church Diocese of Sydney and the Sydney Anglican Home Mission Society Council (s5). Payments made by other dioceses, other church bodies, insurers, state victims-of-crime schemes, court-ordered compensation, or private settlements do not fall within the defined class. Practitioners should not assume that similar payments by other institutions are automatically exempt under this instrument; the text limits exempt status to payments by the named payers.

One-off payments only. The definition specifies “one off payments” (s5). The instrument does not address recurring payments, structured settlements, or staged compensation. If a payment is periodic, or part of a series of payments, there is a risk it will fall outside the definition and consequently outside the exemption. The instrument does not elaborate what constitutes a “one off” payment in borderline cases.

Terminology is undeveloped. The instrument uses phrases such as “victims of child abuse or sexual misconduct,” “church worker,” and “in the context of, or related to, their church role” (s5). Those terms are not defined further within the instrument. The ambiguity leaves open questions about scope: for example, whether conduct that occurred outside of church premises but is connected to church activities qualifies, or whether certain categories of church-affiliated persons fit within “church worker.” The instrument does not provide interpretive guidance or a decision rule for borderline factual situations.

No procedural or evidentiary rules. The instrument does not specify what evidence a recipient must provide to the Department to establish that a payment is a Pastoral Care and Assistance Scheme Payment, or what documentary form the paying body should use to label or record the payment. The absence of procedural detail means practical disputes about proof, timing, or reliance are resolved by reference to the Social Security Act’s procedures and administrative practice, not by the instrument itself.

Effect limited to classification, not entitlement. The instrument does not create any right to receive a payment. It only classifies amounts that are already paid, or paid in future, provided they meet the definition (s6). If a paying body declines to make a payment or contracts out liability, this instrument does not obligate it to pay.

Revocation without transitional detail. The instrument revokes three earlier determinations (s4), but contains no transitional or savings clauses about payments made under those revoked instruments prior to this instrument’s commencement. That may create administrative questions about continuity of treatment for payments made before or around the date of revocation and reissue.

Commencement technicality. The instrument’s commencement is the day after registration (s2). Parties and advisers should confirm the registration date when determining whether a particular payment falls before or after commencement.

No enforcement or penalty provisions. The instrument does not create compliance obligations on the named payers, nor does it prescribe penalties for incorrect characterisation. Any enforcement action would derive from the Social Security Act or other legal mechanisms, not from this instrument.

The instrument imposes no procedural duties but stakeholders who wish to rely on its classification should take practical steps that align with the instrument’s narrow textual requirements.

For recipients wishing to rely on the exemption. A person who receives a payment and wants it treated as an exempt lump sum under paragraph 8(11)(d) of the Social Security Act should ensure that the payment falls within the instrument’s definition: it must be a “Pastoral Care and Assistance Scheme Payment” made by the Anglican Church Diocese of Sydney or the Sydney Anglican Home Mission Society Council under the named scheme to a person described as a victim of child abuse or sexual misconduct by a church worker in the context of, or related to, their church role (s5; s6). Because the instrument supplies no evidentiary rules, recipients should retain documentation showing:

• the identity of the payer (clearly showing the payment was made by the named entities),
• that the payment was made under a scheme branded or described as the Pastoral Care and Assistance Scheme, and
• that the payment was a one-off payment and was made in respect of abuse or misconduct meeting the scheme’s stated subject matter.

Those documents will assist the Department or decision-makers under the Social Security Act to establish that the payment falls squarely within the defined class. The instrument itself does not require particular paperwork, but establishing provenance will be the practical means to rely on the exemption.

For the named payers. The Anglican Church Diocese of Sydney and the Sydney Anglican Home Mission Society Council should be aware that payments they make under the defined scheme will be treated as exempt lump sums for social security purposes (s6). To reduce administrative friction, payers may wish to:

• label payments and correspondence in a way that identifies them as “Pastoral Care and Assistance Scheme Payments”,
• provide recipients with written confirmation of the payment’s purpose and one-off status,
• keep records linking each payment to the scheme and to the factual basis for payment (for example, the basis on which a person was treated as a victim under the scheme).

Those steps are not mandated by the instrument but are practicable measures to ensure recipients can establish that their payments meet the instrument’s definition.

For Departmental decision-makers. The Department of Social Services should apply the exemption in social security assessments by identifying whether an amount presented by an applicant matches the instrument’s definition (s5; s6). Because the instrument does not prescribe verification mechanisms, the Department will need to rely on the Social Security Act’s existing assessment and compliance powers to confirm that a payment qualifies.

Practical checklist. A minimal compliance checklist, consistent with the instrument’s text, would include: confirm payer identity (must be one of the named entities), confirm payment type (one-off), confirm payment label or scheme association (Pastoral Care and Assistance Scheme), and confirm the factual reason for payment (victim of child abuse or sexual misconduct by a church worker in the stated context). Keep original documents and contemporaneous records around the payment.

Confirm timing and registration. Parties should note the instrument commences the day after registration (s2). To determine whether a payment falls under this instrument as opposed to a revoked 2007 determination, confirm the payment date against the instrument’s registration and commencement dates and be aware that the instrument revokes the three earlier instruments (s4).

Seek administrative guidance where necessary. Because the instrument provides no procedural rules, parties facing contested classification should seek administrative guidance from the Department or consider merits review avenues available under the Social Security Act, as the instrument itself does not establish internal review mechanisms. The instrument is a narrow, declaratory instrument; compliance in practice therefore depends on matching the payment to its textual definition and retaining evidence that the match exists.