Social Security (Streamlined Participation Requirements Transitional Arrangements) Instrument 2022

This instrument, the Social Security (Streamlined Participation Requirements Transitional Arrangements) Instrument 2022 (the Instrument), makes targeted transitional adjustments to the operation of the Social Security (Administration) (Non‑Compliance) Determination 2018 (No. 1) (the Determination) and preserves the ongoing effect of certain existing instruments despite amendments made by the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2022 (the Amending Act). It is dated 4 April 2022 and, per the commencement table at s 2, is taken to have commenced immediately after the commencement of Schedule 1 to the Amending Act (commencement day noted as 8 April 2022 in the Instrument).

Mechanically, the Instrument does three things:

• It preserves continuity for instruments made under two specific heads in the Social Security Act 1991 (the Act): instruments in force under subsection 500(2) of the Act continue in force despite an amendment to paragraph 500(1)(ca) (s 6 of the Instrument); and instruments in force under subsection 28C(1) of the Act immediately before commencement are not invalidated by the Amending Act’s changes to the Act and the Social Security (Administration) Act 1999 (s 7 of the Instrument).

• It amends the Determination (set out in Schedule 1 to the Instrument) by inserting a new subparagraph (ia) into the definitions of “3 active months” and “6 active months” (Schedule 1, items 1 and 2), excluding from those counts any periods when the person is not required to satisfy employment pathway plan requirements under sections 40L, 40M, 40N, 40P or 40Q of the Act.

• It replaces subsections 6(1), 6(2) and 6(4) of the Determination (Schedule 1, items 3, 4 and 6). Those replacements re-state the decision logic the Secretary must apply when determining, for the purposes of subsection 42AN(4) of the Act, whether paragraph 42AN(3)(a) or 42AN(3)(b) of the Act applies to a reduction to a person’s participation payment that is made under paragraph 42AF(2)(c) of the Act. The new text creates a look-back over the relevant “3 active months” for prior determinations under paragraph 42AF(2)(c) and inserts an exception where the person previously had a participation payment cancelled under paragraph 42AF(2)(d) of the Act (see substituted ss 6(1)-(4) in Schedule 1).

The Instrument is made under subsection 42AR(1) of the Social Security (Administration) Act 1999 and item 160 of Schedule 1 to the Amending Act (s 3). Schedule 1 to the Instrument sets out the specific amendments to the Determination (items 1-6).

The Instrument therefore does not create new penalty types; it preserves continuity for certain pre-existing instruments; and it changes how the Determination counts “active months” and how the Secretary must choose between the alternative clauses in s 42AN(3) of the Act when making reductions under para 42AF(2)(c). The operative provisions that change decision rules are in Schedule 1, items 3-6, which substitute subsections 6(1), 6(2) and 6(4) of the Determination.

The Instrument operates by amending a secondary instrument (the Determination) that prescribes aspects of non‑compliance reductions and by creating transitional protection for previously made instruments. The main concepts, with the precise source references, are:

• Commencement linkage: The Instrument is designed to come into effect immediately after Schedule 1 to the Amending Act commences (s 2). The Instrument therefore functions as a transitional or consequential instrument tied to the Amending Act’s timetable.

• Continued operation (transitional protection): The Instrument expressly preserves the operation and validity of instruments made under particular provisions of the Act that existed immediately before commencement. Section 6 protects instruments made under subsection 500(2) of the Social Security Act 1991 from being displaced by an amendment to paragraph 500(1)(ca) effected by the Amending Act. Section 7 protects instruments made under subsection 28C(1) of the Social Security Act 1991 from invalidation by the Amending Act’s amendments to the Social Security Act and the Social Security (Administration) Act 1999.

• Exclusion from counting of “active months”: The Instrument inserts a new subparagraph (ia) into the definitions of “3 active months” and “6 active months” in the Determination (Schedule 1, items 1 and 2). That subparagraph excludes periods “during which the person is not required to satisfy the employment pathway plan requirements under section 40L, 40M, 40N, 40P or 40Q of the Act.” The concept of “active months” is central to how the Determination measures recent compliance history for the purpose of escalating sanctions.

• Decision rule for reductions: The Determination’s reworked subsections 6(1)-(4) establish a procedural rule for the Secretary when a reduction to a person’s participation payment is being determined under paragraph 42AF(2)(c) of the Act. The substituted text requires the Secretary to determine, for the purposes of subsection 42AN(4) of the Act, whether paragraph 42AN(3)(a) or paragraph 42AN(3)(b) applies, depending on the person’s recent history in the redefined “3 active months” and whether the person previously had a participation payment cancelled under paragraph 42AF(2)(d).

• Interaction with specific provisions of the Act: The Instrument repeatedly references the Act’s provisions: 40L, 40M, 40N, 40P and 40Q (employment pathway plan requirements), and 42AF and 42AN (provisions authorising reduction and the consequences under subsection 42AN(4)). It also references paragraph 42AF(2)(d) (cancellation of a payment) and the instrument-making powers in subsections 500(2) and 28C(1).

The Instrument affects a distinct set of actors and decision points. The primary groups affected, with the mechanism of effect and the statutory references, are:

• Recipients of participation payments (jobseeker-type recipients subject to mutual obligation requirements): The Instrument alters the way “3 active months” and “6 active months” are calculated for the Determination by excluding periods when the person is not required to satisfy employment pathway plan requirements under ss 40L, 40M, 40N, 40P or 40Q of the Act (Schedule 1, items 1 and 2). Because those active-month counts are used to determine which clause of s 42AN(3) applies for a reduction (Schedule 1, items 3-6), individual recipients’ exposure to different reduction outcomes will be affected by whether particular periods count as active months.

• The Secretary of the Department (the decision-maker): The Instrument imposes an obligation on the Secretary when exercising power under paragraph 42AF(2)(c) of the Act to reduce instalments of a person’s participation payment. Substituted subsection 6(1) instructs the Secretary that where the Secretary determines a reduction under paragraph 42AF(2)(c) and is satisfied that the circumstances in paragraph 5(1)(a) or (b) of the Determination apply, the Secretary “must determine” that paragraph 42AN(3)(a) applies for the purposes of subsection 42AN(4) of the Act. Subsection 6(2) creates a different mandatory outcome where a prior reduction of a specific type has occurred in the 3 active months prior to the relevant failure (Schedule 1, items 3 and 4). Subsection 6(4) creates yet another rule where a prior cancellation under paragraph 42AF(2)(d) exists (Schedule 1, item 6). The textual form “must determine” indicates a binding administrative duty to follow the prescribed logic in the Determination as amended.

• Administrators and caseworkers: Staff implementing non‑compliance reductions need to determine whether relevant periods count as “active months”, whether prior determinations under 42AF(2)(c) occurred in the look‑back window, whether those prior determinations were for the amount specified in 42AN(3)(a), and whether any cancellation under 42AF(2)(d) previously occurred. These factual inquiries require access to historical determinations, records of when a person was exempt from employment pathway plan requirements, and documentation of cancellations. The Instrument thereby imposes an administrative record-keeping and decision-making burden.

• Holders of instruments made under subsection 500(2) or subsection 28C(1) of the Social Security Act 1991: Although not a class of person in the same way as recipients, the Instrument explicitly preserves the continuing operation of instruments made under s 500(2) and under s 28C(1) immediately before commencement (ss 6-7). Anyone relying on those earlier instruments , for example, legal advisers, practitioners or recipients whose entitlements are governed by them , is affected because the Instrument ensures those instruments are not automatically displaced by the Amending Act.

The Instrument prescribes administrative duties for the Secretary and modifies the rights (or exposure) of persons subject to participation payment reductions by altering counting rules used to determine which subsection of the Act applies. The operative duties and the correlative effects are set out below with precise references to the Instrument and the Determination as amended.

Key duties imposed on the Secretary and departmental officials

• Duty to preserve pre-existing instruments: Section 6 of the Instrument requires that “an instrument in force under subsection 500(2) of the Social Security Act 1991 immediately before the commencement day continues in force (and may be dealt with) on and after that day,” despite the amendment of paragraph 500(1)(ca) by the Amending Act. Section 7 provides a parallel protective duty: the Amending Act’s changes do not affect the validity or operation of an instrument in force under subsection 28C(1) immediately before the commencement day. These are declaratory statutory directions: officials must continue to recognise and apply those pre-existing instruments as valid legal instruments.

• Duty when reducing instalments under paragraph 42AF(2)(c): The Schedule 1 replacement of subsection 6(1) of the Determination states that if the Secretary determines under paragraph 42AF(2)(c) that an instalment is to be reduced, and the Secretary is satisfied that the circumstances in paragraph 5(1)(a) or (b) of the Determination apply, then “for the purposes of subsection 42AN(4) of the Act, the Secretary must determine that paragraph 42AN(3)(a) of the Act applies in relation to the reduction.” The substituted wording uses “must”, imposing a mandatory, discretionary-less duty to pick the specified subsection once the stated facts are satisfied.

• Duty to check prior reductions in the 3 active months: The reworked subsection 6(2) instructs that despite subsection 6(1), if the Secretary determines a reduction under paragraph 42AF(2)(c) and, in the 3 active months prior to the relevant failure, the Secretary previously determined under paragraph 42AF(2)(c) that an instalment was to be reduced by the amount specified in paragraph 42AN(3)(a), and that previous determination was the last determination made under paragraph 42AF(2)(c) before the current determination, then “for the purposes of subsection 42AN(4) of the Act, the Secretary must determine that paragraph 42AN(3)(b) of the Act applies.” This imposes a fact‑sensitive duty to examine recent determinations and their sequencing.

The Instrument does not itself create new categories of criminal offence or fresh penalty regimes. Rather, it changes the decision‑making rules and counting mechanisms that determine the application of reductions and cancellations authorised by the Social Security Act 1991. The Instrument therefore affects enforcement and penalty outcomes indirectly, through the amended Determination and through the transitional protection it provides to existing instruments. The enforcement and penalty implications are as follows, with references to the Instrument and the Determination amendments:

• Source of enforcement powers remains the Act: The Secretary’s powers to reduce or cancel instalments are exercised under provisions of the Social Security Act 1991, specifically paragraph 42AF(2)(c) (reduction of a participation payment instalment) and paragraph 42AF(2)(d) (cancellation), with the consequences of those actions addressed in subsection 42AN(4) of the Act. The Instrument does not amend the Act itself; it amends the Determination to prescribe how the Secretary must decide which clause of s 42AN(3) applies when reductions are being implemented (Schedule 1, items 3-6).

• No new sanctions but altered pathways to sanctions: By changing which periods count as “active months” and by prescribing when paragraph 42AN(3)(a) or 42AN(3)(b) must apply, the Instrument can alter the practical magnitude or sequencing of reductions a person will face when sanctions are applied under the Act. The Determination’s substituted subsections are administrative rules that determine whether a particular statutory paragraph is applied; they are not criminal penalties but they alter the financial consequences (reductions/cancellations) that may be imposed on recipients.

• Mandatory application constrains administrative discretion: The use of “must determine” in the substituted subsections (Schedule 1, items 3-6) converts factual findings into required legal outcomes. Because the Instrument binds the Secretary to a particular choice between paragraphs 42AN(3)(a) and (b) for prescribed factual circumstances, the pathway of enforcement (which paragraph of s 42AN(3) applies) is constrained and becomes less discretionary.

• Transitional preservation prevents immediate legal uncertainty: Sections 6 and 7 of the Instrument ensure that certain instruments made under ss 500(2) and 28C(1) remain valid and in force despite the Amending Act’s changes. This continuity reduces the risk that enforcement actions previously authorised by those instruments suddenly lose their legal basis on commencement; administrators can rely on pre-existing instruments to continue enforcement actions until they are explicitly revoked or replaced under the correct legislative authority.

The Instrument is explicitly designed to operate in the statutory environment established by the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999, and the Amending Act. Its interactions with those instruments are as follows, grounded in the Instrument’s text:

• Made under delegated power: Section 3 of the Instrument states it is made under subsection 42AR(1) of the Social Security (Administration) Act 1999 and under item 160 of Schedule 1 to the Amending Act. That places the Instrument within the delegated instrument‑making powers available under the Administration Act and within the specific enabling item in the Amending Act.

• Amendments to a Determination under the Administration Act: The Instrument amends the Social Security (Administration) (Non‑Compliance) Determination 2018 (No. 1) (Schedule 1). Determinations of that kind are instruments made under the Administration Act; this Instrument therefore operates at the level of subordinate legislation that prescribes how statutory powers in the Act are to be executed.

• Direct references to provisions of the Social Security Act 1991: Several sections of the Act are cross-referenced and operationally relevant to the Instrument:

  • Sections 40L, 40M, 40N, 40P and 40Q are employment pathway plan provisions in the Act. The Instrument excludes periods when a person is not required to satisfy requirements under those sections from the counts of “3 active months” and “6 active months” in the Determination (Schedule 1, items 1-2). Thus, the Operation of those Act provisions affects the counting rules in the Determination once amended.

  • Paragraph 42AF(2)(c) is the operation point for reductions of participation payment instalments, and paragraph 42AF(2)(d) authorises cancellation. The substituted subsection 6 in the Determination requires the Secretary to take into account prior decisions under paragraph 42AF(2)(c) and prior cancellations under paragraph 42AF(2)(d) when selecting between paragraph 42AN(3)(a) and 42AN(3)(b) of the Act.

  • Subsection 42AN(4) of the Act is the statutory hook to which the Determination directs the Secretary’s choice of paragraph 42AN(3)(a) or 42AN(3)(b). The Determination does not change s 42AN(4) itself but instructs how the Secretary must determine which of the s 42AN(3) alternatives applies.

  • Subsections 500(2) and 28C(1) of the Act are instrument-making provisions; ss 6-7 of the Instrument ensure that instruments made under those subsections prior to commencement remain valid despite the Amending Act’s changes to the Act and the Administration Act.

The Instrument itself is short and records its own making and commencement. The amendment history that can be stated from the text is as follows , this is a record of what the Instrument changes or preserves, not a commentary on earlier legislation beyond what the Instrument sets out.

• Instrument made and dated: The text records the Instrument was made by Stuart Robert, Minister for Employment, Workforce, Skills, Small and Family Business, and is dated 4 April 2022 (front matter). The Instrument’s name is given in s 1.

• Commencement: Section 2 contains a commencement table. The Instrument’s operative commencement is specified to take effect “Immediately after the commencement of Schedule 1 to the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2022.” The table indicates the commencement day as 8 April 2022 for the whole of the instrument (s 2(1) and the commences table). The instrument includes the standard note that the table relates only to the instrument as originally made (s 2 note).

• Authority for making: Section 3 records the authority under which the Instrument is made: subsection 42AR(1) of the Social Security (Administration) Act 1999 and item 160 of Schedule 1 to the Amending Act.

• Schedule 1 amendments to Determination 2018 (No. 1): Schedule 1 to the Instrument lists six items that amend the Social Security (Administration) (Non‑Compliance) Determination 2018 (No. 1). Those items are:

  1. Insert a new subparagraph (ia) into the definition of “3 active months” after subparagraph (1)(a)(i) (Schedule 1, item 1).
  2. Insert a new subparagraph (ia) into the definition of “6 active months” after subparagraph (1)(a)(i) (Schedule 1, item 2).
  3. Repeal and substitute subsection 6(1) of the Determination with the new text (Schedule 1, item 3).
  4. Repeal and substitute subsection 6(2) of the Determination with the new text (Schedule 1, item 4).
  5. Repeal subsection 6(3) entirely (Schedule 1, item 5).
  6. Repeal and substitute subsection 6(4) of the Determination with new text (Schedule 1, item 6).

• Transitional preservation provisions: Sections 6 and 7 of the Instrument preserve the operation of previously made instruments under ss 500(2) and 28C(1) of the Social Security Act 1991 respectively, notwithstanding the Amending Act’s changes.

The Instrument itself does not record any litigation. The text supplied contains no references to court decisions, appeals or proceedings in which it or the Determination (as amended) have been the subject of litigation. The following points are relevant for practitioners seeking litigation history and assessing litigation risk, based on the Instrument’s content:

• No cases named or legal challenges cited in the Instrument: The Instrument is silent on any litigation. It contains neither a schedule of cases nor a recital of litigation‑related facts. It is therefore not possible from the Instrument’s text to identify any judicial decisions concerning the Instrument or the amendments it makes.

• Potential for challenge exists in principle: Because the Instrument prescribes mandatory decision outcomes for the Secretary (the “must determine” language in the substituted subsections of the Determination), decisions made pursuant to those provisions could be susceptible to merits review or judicial review challenges in the usual ways if a person alleges that the statutory tests were not correctly applied or that relevant facts (for example, whether a period counts as an “active month”) were established incorrectly. The Instrument does not change the general availability of administrative review or judicial review, and the Instrument itself identifies no special procedural bar to review.

• Transitional preservation may affect the subject‑matter of future litigation: Sections 6 and 7 preserve the operation and validity of instruments made under ss 500(2) and 28C(1) of the Social Security Act 1991 that were in force immediately before commencement. If there is subsequent litigation about the validity or operation of actions taken under those preserved instruments, the Instrument’s declaration that those instruments continue in force may be raised in proceedings as an affirmation of continued validity. The Instrument itself does not attempt to preclude judicial consideration of questions such as whether a preserved instrument was lawfully made, but it does remove a potential ground for arguing that the Amending Act (or its commencement) has displaced those instruments.

• Practical advice for searching litigation: To determine whether any litigation has occurred after the Instrument’s commencement, practitioners should consult current case law databases, tribunal decisions and merits review records relevant to social security determinations and to the Determination 2018 (No. 1). The Instrument itself contains none of that material.

The Instrument contains several technical features and drafting choices that can produce practical traps if not observed closely. These are not policy judgments; they are concrete, source‑grounded implementation pitfalls and practical interpretive points drawn from the Instrument and the amended Determination.

1. “This instrument” vs. “the Determination”: The Schedule amends the Social Security (Administration) (Non‑Compliance) Determination 2018 (No. 1). Within the text of the substituted subsections, references to “this instrument” are references to the Determination as amended, not to the transitional Instrument that effects the amendment. Practitioners must therefore ensure they read the amended Determination in its entirety , in particular paragraph 5(1)(a) or (b) of the Determination which is invoked in substituted s 6(1) , because the substituted text refers to elements located elsewhere in the Determination. Mistaking the referent may lead to misapplication of the decision logic.

2. Exclusion of periods when not required to satisfy employment pathway plan requirements is narrow and specific: The new subparagraph (ia) inserted into definitions of “3 active months” and “6 active months” excludes “periods during which the person is not required to satisfy the employment pathway plan requirements under section 40L, 40M, 40N, 40P or 40Q of the Act” (Schedule 1, items 1-2). That exclusion depends on the person’s status under those particular statutory sections. It does not, on its face, exclude other kinds of inactive periods or exemptions, unless those are captured by the listed Act sections. Practitioners should not assume broader exclusions beyond the named sections.

3. The look‑back is to “3 active months”, not calendar months: The tests in substituted subsections 6(2) and 6(4) are anchored to “the 3 active months prior to the relevant failure” and “the 3 active months since that cancellation”. Because active months are re‑defined to exclude particular periods, the temporal window to be examined is not simple chronological months but “active months” as counted under the Determination. That distinction can cause mistakes when officials or advisers use calendar-month calculations.

4. Sequencing requirement for prior determinations: Substituted s 6(2)(b)(ii) requires that the previous determination under paragraph 42AF(2)(c) “was the last determination made under paragraph 42AF(2)(c) of the Act in relation to the person before the determination referred to in paragraph (a).” The sequencing requirement means that even if a qualifying reduction occurred within the 3 active months, it will not trigger the s 6(2) rule if there was a later determination (even for a different instalment) that breaks the required sequencing. Administrators must therefore check the full sequence of prior determinations, not merely the existence of any qualifying prior reduction.

This section gives a practical, source‑grounded checklist for departmental officials, caseworkers, legal advisers and recipients who need to ensure decisions under the amended Determination comply with the Instrument. The steps are derived from the Instrument’s text and the substituted subsections in Schedule 1. Where the instructions refer to provisions not reproduced in full in the Instrument (for example, paragraph 5(1)(a) or (b) of the Determination, or the text of paragraphs 42AN(3)(a)/(b)), consult those provisions directly as part of the compliance process.

For departmental decision-makers (Secretary, decision officers, caseworkers)

1. Confirm commencement timing and the correct version of the Determination:

   • Verify the commencement day (s 2) linked to the Amending Act’s Schedule 1. Ensure you are applying the amended Determination as in force after that commencement.
   • Obtain the current consolidated text of the Social Security (Administration) (Non‑Compliance) Determination 2018 (No. 1) incorporating the Schedule 1 amendments from this Instrument.

2. Establish whether an instrument is preserved:

   • If relying on an instrument made under subsection 500(2) or subsection 28C(1) of the Social Security Act 1991, confirm that it was in force immediately before the commencement day. Sections 6-7 of the Instrument preserve only those instruments that were in force immediately before commencement.

3. Assess whether periods count as “active months”:

   • For each person subject to a proposed reduction, identify the person’s status during the months in question and determine whether any of those months are periods “during which the person is not required to satisfy the employment pathway plan requirements under section 40L, 40M, 40N, 40P or 40Q of the Act” (Schedule 1, items 1-2). Exclude such periods from the count of “3 active months” and “6 active months”.

4. Apply the substituted s 6 decision logic when proposing a reduction under paragraph 42AF(2)(c):

   • If you determine an instalment is to be reduced under paragraph 42AF(2)(c), check whether the circumstances in paragraph 5(1)(a) or (b) of the Determination apply to the person. If so, the Secretary must determine that paragraph 42AN(3)(a) applies (Schedule 1, item 3).
   • Despite that outcome, conduct the look‑back in “the 3 active months prior to the relevant failure.” If, in that window, the Secretary previously determined under paragraph 42AF(2)(c) that an instalment was to be reduced by the amount specified in paragraph 42AN(3)(a) and that previous determination was the last such determination before the current one, then the Secretary must determine that paragraph 42AN(3)(b) applies (Schedule 1, item 4). This requires checking sequencing of prior determinations.