Social Security (Reasonable Excuse – Student Payments) Determination 2019

The instrument introduces and operationalises a bounded catalogue of circumstances that must be considered as potential reasonable excuses in the context of student payment participation obligations. The core legal mechanics and concepts are:

• Scope of application: The Determination applies to “youth allowance participation failures or Austudy participation failures” in the context of subsections 550(2A), 550B(2A), 576(2A) and 576A(2A) of the Social Security Act 1991 (s 6(1); s 3). The text does not recite those Act subsections; it ties the Determination to them as the authorising statutory provisions (s 3).
• Mandatory matters to be taken into account: The Secretary “must take into account” the matters listed at s 6(2) when deciding whether a person has a reasonable excuse (s 6(1)). The matters are discrete and largely person-centred: housing, literacy and language skills (with an example), illness and health conditions including episodic illness, cognitive or neurological impairment, psychiatric or psychological impairment, drug or alcohol dependency, unforeseen family or caring responsibilities, exposure to criminal violence (including domestic violence and sexual assault), bereavement, relationship breakdown for members of a couple, jury service, recent imprisonment and release (with timing thresholds), refugee status, and community service order obligations exceeding 20 hours per week (s 6(2)(a)-(n)).
• Evidentiary significance threshold: Subsection 6(3) is a limiting principle. It instructs that the Secretary must not take a matter into account unless satisfied that it had “a significant effect on the person’s capacity to comply with the requirement, or the provision of the Act, to which the failure relates.” This introduces an evaluative step requiring the Secretary to form a positive satisfaction that causation or significant impact exists before counting the matter as an excuse.
• Concrete definition of housing deficiency: Subsection 6(4) expands on matter (a) by specifying what it means to not have access to safe, secure and adequate housing. That provision lists three categories of circumstances (health/safety damage, adverse effect on adequacy/safety/security/affordability, and absence of a right to remain or reasonable expectation to remain) and gives examples (s 6(4)(a)-(c)). The Determination thereby transforms an otherwise broad housing concept into a set of criteria the Secretary must consider.
• Repeal of prior instrument: Schedule 1 repeals the earlier 2009 Determination in full, so the 2019 Determination is the operative instrument for the matters it covers (Schedule 1).

Several subsidiary definitional items are present. Section 4 defines “Act” as the Social Security Act 1991, defines “community service order” to include orders issued by Commonwealth, State or Territory courts, and refers to the meaning of “refugee” in subsection 7(6B) of the Act. These link the Determination to other legal texts for full meaning.

The Determination is limited to the decision-making context identified. It does not itself establish what the outcome consequences are of being found to have a reasonable excuse, nor does it set procedural steps for how a person should submit evidence; those matters remain governed by the primary statute and administrative practice.

Primary affected persons

• Recipients (and alleged non-compliers) of youth allowance and Austudy payments who are accused of participation failures under the relevant provisions of the Social Security Act 1991: the Determination directly governs what the Secretary must take into account when deciding whether those persons had a reasonable excuse (s 6(1)-(2)). The instrument therefore affects students and other beneficiaries subject to participation requirements for those payments.
• People with circumstances listed in s 6(2): those experiencing insecure housing, low literacy or limited English, illness or episodic medical conditions, cognitive or neurological impairments, psychiatric/psychological conditions, drug or alcohol dependency, significant family or caring responsibilities, victims of criminal violence (including domestic violence and sexual assault), people affected by bereavement, people undergoing relationship breakdown, jury members, people recently imprisoned and released (within 28 days and where imprisonment exceeded 14 continuous days), refugees (per the Act), and persons subject to community service orders exceeding 20 hours per week. Each of these categories is singled out as a matter the Secretary must consider (s 6(2)(a)-(n)).
• Sponsors, advocates or representatives assisting claimants: organisations, legal representatives, social workers, or advocates who prepare material for submission to the Department will be obliged to present evidence addressing the categories in s 6(2) and the significance threshold in s 6(3).

Administrative actors and decision makers

• The Secretary of the Department of Social Services is given a mandatory evaluative task: to take the listed matters into account in reasonable-excuse decisions (s 6(1)). The instrument therefore directs departmental decision-making practice.
• Decision-making staff responsible for youth allowance and Austudy cases must assess whether listed matters apply and whether each had a significant effect on capacity to comply (s 6(3)), and must apply the housing criteria in s 6(4) where housing is raised.

Indirectly affected bodies and interfaces

• Courts and state/territory agencies issuing community service orders: the Determination treats community service orders issued by Commonwealth, State or Territory courts as potentially relevant (s 4; s 6(2)(n)). The instrument sets a threshold of more than 20 hours of community service per week for that matter to be taken into account.
• Prison and corrective services authorities, where imprisonment status or release dates are relevant to the temporal thresholds in s 6(2)(l). The instrument makes recent release (within 28 days) from imprisonment of more than 14 continuous days a matter to be considered (s 6(2)(l)(i)-(iii)).
• Refugee status is referenced but defined by the primary Act (s 4). Practitioners will need to cross-check the Act to determine who falls within that category.

Who does not get new rights or obligations from this Determination

• The Determination does not itself confer a new entitlement to payment, create criminal offences, or change the statutory sanctions regime in the Social Security Act 1991. It prescribes the factors the Secretary must use when exercising existing statutory discretions under the cited subsections (s 3; s 6(1)). Therefore, the population affected is principally those whose reasonable-excuse status must be adjudicated under those statutory provisions.

Temporal effects

• The Determination commences the day after registration (s 2(1)). The repeal of the earlier 2009 instrument is immediate on commencement per Schedule 1. Practitioners will need to note the commencement date for transition questions, as the instrument itself states the commencement table relates only to the provisions as originally made (s 2 note).

Duties imposed on the Secretary and decision-makers

• Mandatory consideration duty: The Secretary “must take into account” the specific matters listed at s 6(2) when deciding whether a person has a reasonable excuse for a youth allowance or Austudy participation failure (s 6(1)-(2)). That is a positive duty of consideration, not a permissive list. Decision-makers are required to address each potentially relevant listed matter.
• Causation/impact satisfaction constraint: The Secretary is duty-bound to avoid taking a matter into account unless satisfied it had a “significant effect” on the person’s capacity to comply with the requirement or provision to which the failure relates (s 6(3)). This places an evidentiary or evaluative duty on decision-makers to establish a causal link or significant effect before crediting the matter as a reasonable excuse.
• Housing-definition duty: Where housing is pleaded, the Secretary must apply the tests in s 6(4) to decide whether the person “did not have access to safe, secure and adequate housing,” the first listed matter at s 6(2)(a). The sub-paragraphs (a)-(c) in s 6(4) indicate concrete conditions the Secretary must consider regarding health damage, safety threats, lack of amenities/social support or a lack of right or reasonable expectation to remain in housing (s 6(4)(a)-(c)).

Rights or procedural expectations arising from the Determination

• No new statutory private right is created by the Determination itself. The instrument prescribes what the Secretary must consider when exercising statutory discretion under the Social Security Act 1991 (s 3; s 6(1)). The Determination is therefore an internal standing instrument that governs administrative decision-making.
• Implicit individual expectation of consideration: Because the Secretary is required to take the listed matters into account, persons raising those matters have a procedural right to expect that the Secretary will consider them. The instrument makes it mandatory for the decision-maker to examine such matters, subject to the significant-effect constraint in s 6(3).
• Practical evidentiary duty on applicants: The significant-effect constraint in s 6(3) implies that the Secretary will need to be satisfied that a listed matter significantly affected capacity to comply. Practitioners should therefore treat the Determination as imposing on applicants a de facto duty to supply sufficient evidence to enable the Secretary to form that satisfaction. The instrument itself does not specify forms of evidence or procedural steps; it mechanises the areas of fact to be assessed (s 6(2)-(4)).

Limits and procedural gaps

• The instrument does not set standards for how the Secretary should record or explain which matters were taken into account and why. It mandates consideration but does not specify decision-recording formats or timelines.
• The Determination does not itself alter penalties, sanctions or review mechanisms. Those remain governed by the underlying Social Security Act 1991 and existing administrative law frameworks. The Secretary’s duty to take the matters into account will operate within the procedures and remedies that apply to decisions made under the cited Act subsections (s 3; s 6(1)).

Specific duties flagged by particular matters

• For imprisonment, the Secretary must consider imprisonment and release only where the prisoner was imprisoned for more than 14 continuous days and released not more than 28 days before the failure (s 6(2)(l)(i)-(iii)).
• For community service orders, the Secretary must take into account the obligation only where the order requires the person to perform more than 20 hours of community service for each week the order has effect (s 6(2)(n) and s 4 definition of “community service order”).
• For literacy and language, the Determination provides an example demonstrating that inability to comprehend a requirement or instruction because of literacy/language skill levels must be taken into account (s 6(2)(b) and accompanying Example).

What the Determination itself says about penalties and enforcement

• The Determination does not create new penalties or enforcement powers. It is framed as a determinant of matters that the Secretary must account for when deciding whether a person has a reasonable excuse for participation failures under specified subsections of the Social Security Act 1991 (s 3; s 6(1)). There is no clause in the Determination that prescribes fines, suspensions, or criminal penalties, nor does it amend the enforcement provisions of the primary Act.

Who enforces compliance with the Determination

• Enforcement of the Determination’s operative effect is administrative: the Secretary and departmental decision-makers must apply the listed matters when deciding reasonable-excuse questions arising under ss 550(2A), 550B(2A), 576(2A) and 576A(2A) of the Act (s 3; s 6(1)). The Secretary’s decisions implementing the Act will be the vehicle by which the Determination’s content influences sanctions and payment outcomes established in the Act.

Practical enforcement implications

• The Secretary’s obligation to take the matters into account imposes an internal compliance requirement on the Department. That will translate into case-level inquiry and documentation. Decision-making staff must investigate whether any of the listed matters apply to the individual and whether each had a significant effect in the sense required by s 6(3). The Determination therefore affects departmental practices concerning evidence collection, assessment and decision-recording.
• Because the Determination narrows what may be taken into account by imposing the “significant effect” satisfaction requirement (s 6(3)), enforcement in the sense of limiting permissible excuses is tightened: matters pleaded by a recipient will be relevant only if the Secretary is satisfied of significant effect. That introduces an enforcement-like filter on the range of excuses that can succeed.

Interplay with sanctions under the Act

• The Determination does not alter the content of sanctions or remedial responses available under the Social Security Act 1991. Any penalty, suspension or recovery mechanism that follows a finding of no reasonable excuse will continue to derive from the Act. The Determination’s role is to influence whether the Secretary will find a reasonable excuse exists, which is a precondition to whether the Act’s sanctions apply. The Determination thus indirectly affects enforcement outcomes under the Act by shaping the Secretary’s fact-finding and evaluative process (s 3; s 6(1)).

Evidence and proof burden implications for enforcement

• Subsection 6(3) implicitly imports a threshold of proof or satisfaction. For the Secretary to take a matter into account as an excuse, the Secretary must be satisfied the matter had a significant effect on capacity to comply (s 6(3)). Practically, that will mean claimants or their representatives must supply sufficient supporting material for the Secretary to form that satisfaction. The Determination does not specify evidence types or standards beyond the “satisfied” wording, so decision-makers retain evaluative discretion on what suffices to meet s 6(3).

No criminal or civil enforcement by this Determination

• The Determination contains no civil or criminal enforcement provisions and does not create directly enforceable private rights. Its enforceability is through compliance by the Secretary with the statutory directive to take the matters into account when making reasonable-excuse determinations under the cited Act provisions (s 6(1)).

Statutory foundation and linkage to the Social Security Act 1991

• The Determination is made under the authority of subsections 550(2A), 550B(2A), 576(2A) and 576A(2A) of the Social Security Act 1991 (s 3). It must therefore be read and applied in the context of those Act provisions. The Determination does not alter the wording of the Act; rather, it provides rules about what the Secretary must consider when applying the Act’s reasonable-excuse provisions (s 6(1)). Practitioners must therefore cross-reference the Act for the substantive legal consequences of a finding for or against reasonable excuse.

Interaction with definitional law in the Act

• The Determination refers to the meaning of “refugee” as given in subsection 7(6B) of the Act (s 4). That means the Determination imports the statutory definition from the Act for the proper identification of persons who are refugees for the purposes of s 6(2)(m). For legal analysis involving refugee status, the Act’s definitional provisions must be consulted.

Interfaces with criminal law and corrective services

• The Determination explicitly references imprisonment and release as a matter to be taken into account, with explicit temporal and duration thresholds (s 6(2)(l)(i)-(iii)). That creates an interaction with criminal justice and corrective services records when assessing reasonable excuse. The Secretary will need to take into account criminal justice events recorded under state, territory or Commonwealth law to apply s 6(2)(l).

Interaction with community service orders and orders issued by courts

• “Community service order” is defined in s 4 to include community service orders issued by Commonwealth, State or Territory courts. The Determination therefore interacts with judicial sentencing orders. The Secretary must take a community service order into account only where it requires the person to perform more than 20 hours of community service per week (s 6(2)(n)); that numerical threshold means judicial orders imposing heavy weekly obligations will be relevant for reasonable-excuse assessment.

Administrative law and review (context only)

• The Determination is an internal administrative instrument governing decision-making. It does not itself set out rights to merits review, judicial review or appeal. Those procedural and remedial mechanisms exist outside the Determination and under the broader statutory and administrative law framework. The Determination’s content will be relevant evidence and argument in any review of a Secretary’s decision made under the cited Act subsections because it defines what the Secretary must consider (s 6(1)-(3)).

No cross-override of Act provisions

• The Determination does not purport to override, amend or displace the Social Security Act 1991. It operates under the Act’s authority and within the scope of the specific subsections cited (s 3). Practitioners should treat the Determination as subordinate instrument guidance that modifies administrative practice without changing substantive statutory rights or obligations.

Repeal and replacement of prior instrument

• Schedule 1 expressly repeals the earlier Social Security (Reasonable Excuse,Participation Payment Obligations) (DEEWR) Determination 2009 (No. 1) in full. Where matters of law or practice turn on the content of the 2009 Determination, the 2019 Determination now applies for the contexts identified at s 3 and s 6(1).

Making and commencement

• The Determination bears the maker’s signature (Kathryn Campbell) and is dated 17 September 2019 (front matter). It commences, as indicated in s 2(1), the day after the instrument is registered. The s 2 note clarifies that the commencement table relates only to provisions as originally made; the table will not be amended to reflect later amendments of the instrument.

Authority for amendment

• The Determination is made under subsections 550(2A), 550B(2A), 576(2A) and 576A(2A) of the Social Security Act 1991 (s 3). Those are the enabling provisions that allow the Secretary to make determinations of this kind. Any amendment to the Determination in future would likewise rely on the enabling powers in the primary Act.

Replaces earlier instrument

• Schedule 1 repeals the whole of the Social Security (Reasonable Excuse,Participation Payment Obligations) (DEEWR) Determination 2009 (No. 1). The 2019 instrument therefore supersedes the 2009 instrument in the contexts covered by s 3 and s 6(1). The Schedule states simply: “Repeal the instrument” (Schedule 1).

No subsequent amendments recorded in the instrument text

• The text provided contains no amendment schedule, amending instrument references, or history of subsequent changes. The only historical action recorded in the instrument is the repeal of the 2009 Determination and the making date. There is no internal record here of later amendments to the 2019 Determination.

Administrative notes about the commencement table

• Section 2(2) says any information in column 3 of the commencement table is not part of the instrument and may be edited in any published version. That is an administrative drafting note about publication practice rather than a substantive amendment mechanism (s 2(2)).

Practical implication for practitioners

• Because Schedule 1 effects a full repeal of the 2009 Determination, practitioners should not assume the 2009 text governs decisions taken after the 2019 Determination’s commencement. For historical decisions made prior to commencement, the 2009 Determination may still be relevant, but the 2019 Determination is the operative instrument from its commencement date forward (s 2(1); Schedule 1).

No litigation recorded in this instrument

• The Determination itself contains no record of case law, judicial decisions, or litigation history. It names no cases and lists no judicial or tribunal determinations. The text is a standalone administrative instrument that prescribes matters to be taken into account by the Secretary (full text).

Implication for legal research

• There is nothing in this Determination that directly cites or summarises litigation about reasonable excuse, youth allowance or Austudy participation failures. To locate litigation or judicial treatment of the matters listed in s 6(2), practitioners must search judicial and tribunal databases and review decisions arising from the application of the Social Security Act 1991. The Determination will be evidence of the Secretary’s policy at the time it was in force; it may be raised in litigation or administrative review as the governing administrative policy the Secretary was required to follow.

What to expect in adjudicative contexts

• In legal or administrative review of decisions made under the cited Act subsections, tribunals and courts will expect decision-makers to have addressed the matters the Determination makes mandatory. Because the Determination requires the Secretary to take the list of matters into account (s 6(1)) and to refrain from considering matters unless satisfied of significant effect (s 6(3)), a failure to apply the Determination in the decision-making process could be the subject of review or judicial scrutiny. The Determination itself contains no recorded decisions applying it.

Absence of reported authority in the instrument does not preclude case law elsewhere

• The absence of litigation noted in the Determination does not mean courts or tribunals have not considered these issues elsewhere; it only means this instrument does not record such material. Practitioners will need to consult external case law and tribunal decisions on reasonable excuse, youth allowance, Austudy and similar administrative issues for precedent and interpretative guidance.

Scope and application limits

• Narrow statutory scope: The Determination applies specifically to reasonable-excuse decisions for youth allowance participation failures and Austudy participation failures under the subsections named in s 3 and s 6(1). It does not apply to other Social Security payments or other sections of the Act, unless those other sections themselves reference these particular subsections. Practitioners should not assume the Determination’s list applies beyond the statutory hooks specified (s 3; s 6(1)).

• Repeal effect: The Determination repeals the 2009 instrument in full (Schedule 1). If a practitioner relies on language or precedent tied to the 2009 Determination, they must check whether the 2019 Determination altered the list of matters, thresholds or wording. The instrument itself does not include a comparative table; the repeal is absolute (Schedule 1).

Evidentiary and timing hazards

• “Significant effect” requirement: Subsection 6(3) restricts matters the Secretary may take into account to those the Secretary is satisfied had a “significant effect” on capacity to comply. That is not a mere acknowledgment duty; it is a threshold for causal relevance. Practitioners must anticipate the Secretary asking for and assessing evidence of significant impact. The Determination does not define “significant” or prescribe evidentiary standards, so the sufficiency of evidence will be judged on administrative discretion within the requirement to be “satisfied” (s 6(3)).

• Timing thresholds for imprisonment: For imprisonment, the claim is relevant only where the person has been imprisoned for more than 14 continuous days and released not more than 28 days before the failure (s 6(2)(l)(i)-(iii)). That temporal specificity is a potential gotcha: short prison terms or releases beyond 28 days will not be automatically considered by the Secretary under this head.

• Community service hours threshold: Community service orders count only if they require more than 20 hours of community service per week (s 6(2)(n)). Orders imposing fewer weekly hours will not meet this threshold. Practitioners should check the order’s hourly requirements precisely; phrasing such as “up to” or “on average” may create room for dispute.

Definitional traps

• “Refugee” referenced to the Act: The Determination refers to the meaning of “refugee” in subsection 7(6B) of the Act (s 4). Practitioners must consult the Act for the precise definition and cannot assume ordinary-language meaning. Mischaracterising refugee status may lead to an unsuccessful reasonable-excuse claim under s 6(2)(m).

• Housing specifics: The Determination’s housing test in s 6(4) includes objective criteria such as damage to health, threats to safety, lack of access to reasonable personal amenities or social/economic support, adverse effects on adequacy/safety/affordability, or lack of a right to remain or reasonable expectation to remain. Those are specific legal touchpoints; pleadings that merely say “I was homeless” without tying the circumstances to the s 6(4) criteria risk being discounted.

Operational and procedural uncertainties

• No procedural checklist or evidence list provided: The Determination mandates matters to be taken into account but does not provide a prescribed procedural route for applicants to present evidence or for the Department to seek corroboration. Practitioners must therefore infer best practice: present contemporaneous documentation and clear causal narratives showing a significant effect on the capacity to comply (s 6(2)-(3)).

• No guidance on weighting or balancing: The Determination compels consideration but gives no rules on how to weigh competing matters where multiple factors apply. For example, a person may have episodic illness and literacy limitations; the Secretary must consider both but the Determination does not say how to reconcile them. The s 6(3) significant-effect requirement will be key in such multi-factor cases.

Substantive versus procedural confusion

• The Determination is often misread as creating substantive exemptions. It does not. It prescribes consideration factors for the Secretary’s assessment of whether a reasonable excuse exists under the Act. It does not itself excuse non-compliance or alter statutory sanctions; any such effect flows from the Secretary’s application of the Act, not from the Determination per se (s 3; s 6(1)).

Practical evidence pitfalls

• Medical and mental-health evidence must be specific to capacity to comply: General statements that a person “has depression” may be insufficient absent evidence linking the condition to the specific failure and demonstrating a significant effect. The Determination expressly lists psychiatric or psychological impairments (s 6(2)(e)) and episodic illness (s 6(2)(c)), but s 6(3) requires the Secretary to be satisfied of significant effect.

What applicants should do

• Identify which s 6(2) matters are relevant: Review the list at s 6(2)(a)-(n) and determine which items apply to the circumstances that led to the participation failure. The Determination requires the Secretary to take these into account (s 6(1)); focusing on the applicable items structures the case.

• Provide evidence targeted to the “significant effect” threshold: Because the Secretary must be satisfied a matter had a significant effect on capacity to comply (s 6(3)), applicants should provide evidence that connects the relevant circumstance to the specific failure. Evidence should show timing, severity and causal connection. For example: medical reports describing functional impairment during the relevant period, discharge summaries for recent imprisonment with release dates to satisfy s 6(2)(l), or documentation from a refuge confirming lack of right to remain consistent with s 6(4)(c).

Suggested documentary evidence mapped to s 6(2) matters

• Housing (s 6(2)(a); s 6(4)): tenancy agreements showing termination or no right to remain, correspondence from landlords or real estate agents threatening eviction, letters from refuges or emergency accommodation providers, health records indicating housing damaged health, police/security reports indicating threats to safety, receipts or records showing inability to afford housing.

• Literacy and language (s 6(2)(b)): assessments by registered language or literacy professionals, interpreter/caseworker reports documenting inability to comprehend instructions, evidence of English-language proficiency tests if relevant, or contemporaneous notes showing communications breakdowns.

• Illness and episodic conditions (s 6(2)(c)): medical certificates, specialist letters, hospital records, discharge summaries, primary care contemporaneous notes, and notes tying the illness episode to the attendance or participation failure.

• Cognitive, neurological, psychiatric conditions (s 6(2)(d)-(e)): neuropsychological assessments, psychiatrist/psychologist reports, treatment plans, or medication histories showing functional impairment contemporaneous with the failure.

• Drug or alcohol dependency (s 6(2)(f)): treatment records, rehabilitation program attendance, clinician statements, or documentation of acute episodes affecting capacity.

• Family or caring responsibilities (s 6(2)(g)): court orders, medical records of the cared-for person, school or childcare records, or contemporaneous affidavits detailing unforeseen events.

• Criminal violence or sexual assault (s 6(2)(h)): police incident reports, protection orders, hospital or counselling records, statements from service providers.

• Bereavement (s 6(2)(i)): death certificates, funeral notices, or church/cemetery documents showing timing.

• Relationship breakdown (s 6(2)(j)): evidence of separation, family law filings, joint account closures, or other contemporaneous records demonstrating breakdown for those in a couple.

• Jury service (s 6(2)(k)): jury summons or official correspondence confirming attendance and timing.

• Imprisonment and release (s 6(2)(l)): corrective services records, prison release certificates showing continuous period of imprisonment in excess of 14 days and date of release within 28 days of the alleged failure.

• Refugee status (s 6(2)(m)): documentation evidencing status per the Act’s subsection 7(6B) definition, such as Departmental letters or visa documentation.

• Community service order obligations (s 6(2)(n); s 4): certified copies of court orders specifying hours per week; the order must require more than 20 hours per week to engage this matter.

How to present the material

• Structure submissions to link facts to the specific participation failure: give a factual chronology that explains how the circumstances materially affected capacity to comply at the relevant time. Use the s 6(2) headings as a checklist in submissions.

• Anticipate the Secretary’s satisfaction test: address the “significant effect” point explicitly in submissions. Explain and, where possible, quantify the ways in which the matter hindered participation obligations and why it was causally relevant.

• Provide contemporaneous evidence where possible: documents generated at or near the time of the failure will be more persuasive than retrospective statements.

Departmental remedies and decision-making

• The Determination imposes on the Secretary a mandatory task; applicants and their representatives should ensure the Department receives the evidence necessary to form the s 6(3) satisfaction. While the Determination does not provide procedural rules for lodging material, submissions should be made to the Department through the usual channels for review or internal representation under the Act.

Record-keeping and advocacy

• Keep copies of all evidence submitted and of departmental correspondence. If a matter proceeds to review or challenge, the presence or absence of evidence tied to the s 6(2) matters and the “significant effect” explanation will be central.

Administrative follow-up

• If the Secretary’s decision does not explicitly address a listed matter raised by the applicant, consider seeking reasons or review, because the instrument requires the Secretary to take those matters into account (s 6(1)). The Determination itself does not set out review mechanisms; practitioners must use the statutory review avenues applicable to decisions made under the Social Security Act 1991.

Practical checklist

• Identify which s 6(2) items are relevant.
• Collect contemporaneous and specific evidence linking the item to the failure.
• Present a clear causal argument showing significant effect on capacity to comply (address s 6(3)).
• For housing matters, map evidence to s 6(4)(a)-(c).
• For imprisonment and community service matters, ensure records show required durations and timing thresholds.
• File evidence promptly with the Department and retain copies for review or appeal.