Eligibility requirements

71. To receive a social security payment, a low income health care card, or a Commonwealth senior’s health card, a person must provide original proof of identity documents, which are considered by Centrelink sufficient to establish identity. In addition, a person must provide the full name, date of birth, tax file number and income and asset details of any non-claimant partner.^[39]

72. Victims of family violence are not automatically exempt from providing original proof of identity. The Guide to Social Security Law states that all efforts must be made to obtain satisfactory proof of identity and that the onus for establishing proof of identity is on the person.^[40] The Guide to Social Security Law also provides, however, that a departmental form—‘Questions for Persons with Insufficient Proof of Identity’—can be used if a person is unable to provide sufficient evidence as to identity. Such persons are listed as including ‘persons experiencing domestic violence’. However, continuing efforts must still be made to obtain original proof of identity documents.^[41]

73. Tax file numbers may be requested from a person who resides in Australia and who makes a claim for, or receives, a social security payment. A tax file number may also be requested from the person’s partner, if a member of a couple.^[42] A person cannot be compelled to provide a tax file number, but the person’s social security payment may cease to be payable if not provided.^[43]

74. A person may be granted a tax file number exemption—including an indefinite exemption—in relation to providing a tax file number from their partner, where the person can demonstrate risk of violence to himself, herself, their children or dependants, or where other concerns for the health and safety of the person, their children or dependants exist. ^[44]

75. This exemption does not cover cases where there is merely a refusal on the part of the partner to provide the information and there are no violence or health concerns, or if a person is claiming or receiving payments in his or her own right.^[45]

76. Victims of family violence may not be aware of the alternative departmental form for providing proof of identity or of the exemption from providing a partner’s tax file number in situations of family violence. This may jeopardise their safety by requiring them to attempt to obtain original proof of identity or a tax file number from an abusive family member or to return to a place they have previously fled due to family violence.

Residence requirements

77. The general principle is that, to qualify for social security payments, a person must be an Australian resident. For this purpose, the Social Security Act defines ‘Australian resident’^[46] and waiting periods, which are considered necessary to preserve scarce social security resources for those ‘settled’ within the Australian community.^[47]

78. In addition to the legislative requirement to be an Australian resident at the time of making a claim, some social security payments—generally, the ‘pension’ type payments that are intended as long-term support—require that a person has been an Australian resident for a certain period of time. This is called a ‘qualifying residence requirement’ for example as follows:

• Age Pension (10 years);

• Disability Support Pension (10 years);

• Widow Allowance (two years); and

• Parenting Payment (two years).^[48]

79. Some payments—generally, the ‘allowance’ type payments which are intended as shorter-term income support—do not have prior residence requirements, but have a ‘newly arrived resident’s waiting period’. A newly arrived resident’s waiting period applies to persons who have not been Australian residents but have resided in Australia for a period of, or periods totalling, 104 weeks. Social security payments under the newly arrived resident’s waiting period include:

• Carer Payment;

• Youth Allowance;

• Austudy Payment;

• Newstart Allowance;

• Sickness Allowance;

• Special Benefit;

• Partner Allowance;

• Mobility Allowance;

• Pensioner Education Supplement;

• Commonwealth Seniors Health Care Card; and

• Health Care Card.^[49]

80. Exemptions from qualifying residence requirements and the newly arrived resident’s waiting period may apply to refugees, specified visa holders, or those claiming under an international social security agreement.^[50]

81. For persons who are experiencing hardship, but cannot get any other form of income support, the Special Benefit provides a social security safety net. Although the Special Benefit has a newly arrived resident’s waiting period, it does not apply if the person has suffered a substantial change in circumstances beyond his or her control.^[51] This includes, for sponsored migrants, where ‘domestic violence’ is used by a sponsor.^[52]

82. There is no waiting period for Crisis Payment. However, a person must be:

• an Australian resident;

• a protected special class visa holder; or

• the holder of a specified subclass of visa that qualifies the person for Special Benefit.^[53]

83. There may be concerns that newly arrived residents who are experiencing family violence cannot access social security payments due to either two or 10 year waiting periods and, therefore, may have to remain in an abusive relationship because unable to support themselves financially.

Activity and participation tests

84. To access certain social security payments, activity tests, participation tests or Employment Pathway Plans may be required.^[54] However, victims of family violence may find it difficult to meet these requirements—including various administrative requirements discussed below—due to a partner’s active interference or the impact of family violence on the victim, which may be overwhelming. If a person fails to meet the activity test, participation test or Employment Pathway Plan, a ‘failure’ may apply and payments may be stopped.

85. A victim of family violence may be relieved, from the relevant participation or activity test, or the requirement to enter into an Employment Pathway Plan, or may have their Employment Pathway Plan suspended in three circumstances:

• a person is a principal carer of one or more children and is subjected to ‘domestic violence’ in the 26 weeks prior to making the exemption determination;^[55]

• a person is a principal carer of one or more children and there are ‘special circumstances’ relating to the person’s family that make it appropriate to make the determination;^[56] or

• there are ‘special circumstances’ beyond the person’s control and it would be unreasonable to expect compliance.^[57]

86. What amounts to ‘special circumstances’ is not defined in the Social Security Act. The Guide to Social Security Law provides that special circumstances in relation to exemptions from activity and participation tests include when ‘a person has been subjected to domestic violence’, and:

• ‘the domestic violence specifically affects capacity to both look for work and participation in training activities’;^[58] or

• where it is unforeseen (or unavoidable) and causes major disruption and would be unreasonable to expect the person to comply with the relevant activity or participation test.^[59]

87. The length of an exemption period ranges from two to 16 weeks, after which, in some circumstances, a person is required to reapply for the exemption.^[60] Whether an exemption should be made, and the length of any exemption, is assessed by a Centrelink social worker and any decision is based on the social worker’s report.

Administrative requirements

88. In addition to activity and participation tests, in some cases social security recipients must comply with various administrative requirements. These may include:

• providing certain information;

• attending a particular place;

• completing a questionnaire; or

• undergoing a medical, psychiatric or psychological examination.^[61]

89. Failure to comply with such administrative requirements can lead to non-payment, unless the person can demonstrate a ‘reasonable excuse’ for non-compliance. In addition, where a person fails to meet the activity test or the participation requirements and does not have a reasonable excuse (or an exemption), this may constitute a ‘failure’ and a penalty may apply. Such penalties may apply to Newstart Allowance, Youth Allowance, Parenting Payment, Austudy and Special Benefit.^[62] Penalties range from a reduction in the person’s payment to non-payment for eight weeks.^[63]

90. The term ‘reasonable excuse’ is not defined in the Social Security Act. The Guide to Social Security Law provides that, in determining whether a person has a reasonable excuse, the decision maker must take into account whether the person had access to safe, secure and adequate housing, or was using emergency accommodation or a refuge at the time of the failure and the person was subjected to criminal violence (including ‘domestic violence’ and sexual assault). A person is taken not to have access to safe, secure and adequate housing where such housing threatens or is likely to threaten the person’s safety.^[64]

91. In addition to these administrative requirements, a 26 week exclusion from Newstart Allowance, Youth Allowance and Special Benefit applies if a person receiving one of these payments moves to an area of lower employment prospects. An exemption from this exclusion period applies where the reason for moving is due to an extreme circumstance such as domestic or family violence in the original place of residence.^[65]

92. The penalties scheme for breach of activity, participation or administrative requirements may, however, work against some of the most vulnerable—including victims of family violence. Decision makers and Centrelink customers may also lack sufficient awareness of the exemptions available to victims of family violence. As a result, victims of family violence may have their social security payments cut off if they are unable to meet requirements due to the impact of family violence on their day-to-day lives.