Commonwealth: Farm Household Support Act 2014 (Cth)

Farm Household Support Act 2014 No. 12, 2014 Compilation No. 23 Compilation date: 8 April 2022 Includes amendments up to: Act No. 32, 2022 Registered: 5 May 2022 About this compilation This compilation This is a compilation of the Farm Household Support Act 2014 that shows the text of the law as amended and in force on 8 April 2022 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Object of this Act 4 Simplified outline of this Act 5 Definitions 6 Meanings of specified 10 year period and meets the 4 years or less requirement 6A Norfolk Island Part 2—Farm household allowance Division 1—Simplified outline of this Part 7 Simplified outline of this Part Division 2—Basic qualifications of farmers and their partners for farm household allowance 8 Qualification of farmers for farm household allowance 9 Qualification of farmers' partners for farm household allowance 10 Grace period for farmers' partners 11 Persons with temporary incapacity exemption may be taken to meet the labour requirement 12 Persons not qualified if Secretary determines that they do not effectively control farm enterprises 13 Determination of matters relating to qualification for farm household allowance Division 3—Financial improvement agreements 14 Requirement to enter financial improvement agreement 15 Terms of financial improvement agreement 16 Approval of requirements 17 Variation, cancellation and review 18 Notification of circumstances preventing or affecting compliance Division 4—The activity test 19 The activity test 20 Training and advice to be provided by appropriately qualified person 21 Determining whether work is unsuitable Division 5—Exemptions from the activity test Subdivision A—General exemptions determined by the Secretary 22 Determination of exemption by Secretary 23 Essential farm activities 24 Domestic violence etc. 25 People with disabled children 26 Inclusion in prescribed class 27 Exemption where requirement for person to satisfy the activity test would be unreasonable 28 Special circumstances Subdivision B—Automatic general exemptions 29 Members of Defence Reserves 30 Prenatal and postnatal exemption Subdivision C—People temporarily incapacitated 31 Temporarily incapacitated person exempt from the activity test 32 Time limit for exemption—end of person's maximum exemption period Division 6—Payability Subdivision A—Situations where allowance not payable (assets test) 33 Assets value limit 35 Meaning of farm assets and non‑farm assets 35A Meaning of water entitlement right 36 Meaning of value of assets 36A Valuing a water entitlement right Subdivision B—Situations where allowance not payable (general) 37 Farm household allowance not payable if allowance rate nil 38 Multiple entitlement exclusion Subdivision C—Situations where allowance not payable (waiting period) 39 Waiting period 42 Newly arrived resident's waiting period 43 Duration of newly arrived resident's waiting period Subdivision D—Other situations where farm household allowance not payable 48 Seasonal workers Division 7—Overseas portability 49 Division does not affect need for qualification 50 Persons to whom Division applies 51 Farm household allowance portable 52 Amounts added to rate 53 Meaning of allowable absence and portability period 54 Secretary may extend the portability period Division 8—Rate of farm household allowance Subdivision A—Persons who have turned 22 55 How to work out the rate of a person's farm household allowance 56 Maximum basic rate 57 Pension supplement does not apply 58 Energy supplement 59 Pharmaceutical allowance 59A Income reduction Subdivision B—Persons who have not turned 22 60 How to work out the rate of a person's farm household allowance 61 Maximum basic rate 62 Energy supplement 63 Pharmaceutical allowance 64 Youth disability supplement does not apply 65 Student income bank does not apply 65A Income reduction Subdivision C—Income test 66 Deemed income from financial assets 67 Allowable deductions from ordinary income Division 9—Compliance with obligations in relation to farm household allowance 71 Qualification failures 72 Consequences of qualification failures 73 Conduct failures 74 Consequences of conduct failures 75 Revoking a determination relating to a conduct failure 76 Reasonable excuses 77 Day of determination 78 Relationship with section 80 of the Social Security Administration Act Part 3—Activity supplement 79 Simplified outline of this Part 80 Qualification for the activity supplement 81 Electing method of payment 82 Amount of activity supplement 83 Determination of eligible activities Part 4—Farm financial assessments Division 1—Simplified outline of this Part 84 Simplified outline of this Part Division 2—Farm financial assessments 85 Requirement to have farm financial assessment conducted 86 Requirement for farm financial assessment to be conducted by independent person who has appropriate qualifications or expertise Division 3—Farm financial assessment supplement 87 Qualification for farm financial assessment supplement 88 Electing method of payment 89 The amount of farm financial assessment supplement Part 4A—FHA supplement 89A Simplified outline of this Part 89B Qualification for FHA supplement 89C Amount of FHA supplement Part 4B—Relief payments 89D Simplified outline of this Part 89E Qualification for relief payment 89F Amount of relief payment Part 5—Application and modification of the Social Security Act and the Social Security Administration Act Division 1—Introduction 90 Simplified outline of this Part 91 Purposes of this Part 92 Further modification of the Social Security Act and the Social Security Administration Act Division 2—Application and modification of the Social Security Act 93 Application of the Social Security Act 94 Certain provisions do not apply 95 Modification of particular provisions 96 Application of Division 10 of Part 2.11 and Division 9 of Part 2.12 (bereavement payments) of the Social Security Act 97 References to youth allowance and jobseeker payment Division 3—Application and modification of the Social Security Administration Act 98 Certain provisions do not apply 99 Modification of particular provisions Part 6—Miscellaneous 100 Simplified outline of this Part 101 Delegation of powers 102 Delegation by Secretary: references to the Secretary and the Department 102A Debt waiver—farm household allowance paid for days occurring on or after 1 July 2015 and before 1 July 2020 103 Approval of forms 104 Annual report 105 Appropriation 106 Rules Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to provide financial assistance to farmers and their partners, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Farm Household Support Act 2014. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 28 March 2014 2. Sections 3 to 89 A single day to be fixed by Proclamation. 1 July 2014 However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (see F2014L00554) 3. Parts 5 and 6 At the same time as the provision(s) covered by table item 1. 28 March 2014 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Object of this Act The object of this Act is to improve the financial situation of farmers and their partners, who need financial assistance, by providing them with financial assistance that consists of: (a) farm household allowance for up to 4 years in each specified 10 year period; and (b) funding to engage in certain activities; and (c) funding to obtain a farm financial assessment. 4 Simplified outline of this Act This Act provides financial assistance to certain farmers and their partners. The assistance is available to farmers, and partners of farmers, who contribute significant labour and capital to a farm enterprise that has a significant commercial purpose or character. The payments that are available under this Act are: (a) farm household allowance for up to 4 years in each specified 10 year period; and (b) funding (called the activity supplement) for undertaking activities such as receiving training or advice, or undertaking study; and (c) funding (called the farm financial assessment supplement) to pay for an assessment of the financial position of a person and a relevant farm enterprise; and (d) additional funding (called the FHA supplement) for a person to whom farm household allowance is payable at any time between 1 September 2018 and 1 June 2019; and (e) a relief payment for a person if 1,460 days of farm household allowance have been payable to the person before 1 July 2020; and (f) if the Minister's rules prescribe other circumstances in which a relief payment may be made—a relief payment for a person in those circumstances. The rules dealing with claims, how payments are made and review of decisions relating to payments under this Act are found in the Social Security Act and the Social Security Administration Act. 5 Definitions (1) In this Act: activity supplement means the supplement payable under Part 3. allowable absence has the meaning given by subsection 53(1). Australia, when used in a geographical sense, includes Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island. Benefit Rate Calculator B means the Benefit Rate Calculator B in Part 3.6 of the Social Security Act. conduct failure has the meaning given by section 73. eligible family member has the same meaning as family member has for the purposes of subsection 7(6AA) of the Social Security Act. farm asset has the meaning given by subsections 35(1) and (2). farm enterprise means an enterprise carried on within any of the agricultural, horticultural, pastoral, apicultural or aquacultural industries. farmer means an individual who: (a) has a right or interest in land; and (b) uses the land wholly or mainly for the purposes of a farm enterprise. farm financial assessment is an assessment of: (a) the financial position of: (i) the farm enterprise; and (ii) the person for whom the assessment is conducted; and (b) options to improve that person's financial position. farm financial assessment supplement means the supplement payable under Division 3 of Part 4. farm household allowance means the allowance payable under Part 2. FHA supplement means a supplement payable under Part 4A. financial improvement agreement means an agreement entered into under Division 3 of Part 2. former refugee has the meaning given by subsection 7(1) of the Social Security Act. maximum amount of activity supplement means the maximum amount of activity supplement prescribed by, or worked out in accordance with, Minister's rules made for the purposes of paragraph 82(1)(a). maximum exemption period has the meaning given by section 32. meets the 4 years or less requirement has the meaning given by subsection 6(1A). Minister's rules means the rules made under subsection 106(1). newly arrived resident's waiting period means a newly arrived resident's waiting period under section 42. non‑farm asset has the meaning given by subsection 35(3). period of absence has the meaning given by section 50. portability period has the meaning given by subsection 53(2). qualification failure has the meaning given by section 71. qualifying period has the meaning given by subsection 89B(2). refugee has the meaning given by subsection 7(6B) of the Social Security Act. registered training organisation has the same meaning as in the National Vocational Education and Training Regulator Act 2011. relief payment means an amount payable under Part 4B. Secretary means the Secretary of the Department. Secretary's rules means the rules made under subsection 106(2). service provider for an activity means the person who provides the activity. Social Security Act means the Social Security Act 1991. Social Security Administration Act means the Social Security (Administration) Act 1999. Social Security Department means the Department administered by the Social Security Minister. Social Security Minister means the Minister administering the Data‑matching Program (Assistance and Tax) Act 1990. Social Security Secretary means the Secretary of the Social Security Department. specified 10 year period has the meaning given by subsection 6(1). this Act includes the Minister's rules and the Secretary's rules. value includes the meaning given by section 36. water access entitlement has the meaning given by section 35A. water allocation has the meaning given by section 35A. water entitlement right has the meaning given by section 35A. water resource has the meaning given by section 35A. Youth Allowance Rate Calculator means the Youth Allowance Rate Calculator in Part 3.5 of the Social Security Act. Expressions used in the Social Security Act (2) An expression that is used in the Social Security Act or a part of that Act has the same meaning, when used in this Act, as in that Act or part (subject to subsection (1) and Part 5 of this Act). (3) The Minister's rules may prescribe expressions to which subsection (2) does not apply. 6 Meanings of specified 10 year period and meets the 4 years or less requirement Meaning of specified 10 year period (1) A specified 10 year period is a period of 10 years beginning on: (a) 1 July 2014; or (b) a tenth anniversary of 1 July 2014. Meaning of meets the 4 years or less requirement (1A) A person meets the 4 years or less requirement on a day in a period mentioned in section 8 or 9 if, on that day, the total number of days for which farm household allowance is payable to the person, in the specified 10 year period in which that day falls, does not exceed 1,460 days (assuming farm household allowance is payable to the person on that day). Note: See also section 102A (which deals with the waiver of certain debts and treats farm household allowance as being payable to a person on certain days). (2) In working out that total number: (a) the days do not have to be consecutive days; and (b) every day for which farm household allowance is payable to the person is to be counted. Note: For paragraph (2)(b) for example, all days for which farm household allowance is payable are counted even if: (a) the person qualifies for the allowance under section 8 for some of those days and under section 9 for others; or (b) the person qualifies under section 9 as a partner of a farmer, and also later qualifies under that section as a result of being the partner of a different farmer. When farm household allowance is payable for a day (4) Farm household allowance is payable to a person for a day if: (a) the person qualifies for the allowance on the day; and (b) no provision of this or any other Act applies resulting in the allowance not being payable to the person for the day. 6A Norfolk Island This Act extends to Norfolk Island. Part 2—Farm household allowance Division 1—Simplified outline of this Part 7 Simplified outline of this Part Farm household allowance is payable to certain farmers and their partners. A person must qualify for farm household allowance for the allowance to be payable. The allowance is payable for a cumulative period of up to 4 years in each specified 10 year period. To qualify for the allowance as a farmer, a person must contribute significant labour and capital to a farm enterprise that has a significant commercial purpose or character. The partner of such a person may also qualify for the allowance. Another requirement for a person to qualify for the allowance is that the person is willing to enter into a financial improvement agreement. A financial improvement agreement sets out the activities that the person must do for the purposes of the activity test (which is a test that a person to whom the allowance is payable is generally required to satisfy). The kinds of activities that may be set out in a financial improvement agreement include receiving training or advice from an appropriately qualified person, or undertaking study. In certain circumstances, a person may be exempt from the activity test (for example, during periods that are essential to the operation of the farm or if a person is temporarily incapacitated). Even if a person qualifies for farm household allowance, the allowance may not be payable (such as where the value of the person's assets exceeds a certain limit, where the person receives other support under the Social Security Act or where the person is subject to a waiting period). Farm household allowance may continue to be payable during a person's period of absence from Australia. (The period is generally no longer than 6 weeks.) A person's rate of farm household allowance depends on the age of the person. For a person who has not turned 22, the rate is worked out using the Youth Allowance Rate Calculator in the Social Security Act. Otherwise, the rate is worked out using the Benefit Rate Calculator B in that Act (which is also used to work out jobseeker payment). Some modifications are made to the Calculators for the purposes of farm household allowance. There are certain obligations imposed on a person to whom farm household allowance is payable. Farm household allowance may cease to be payable to a person who fails to comply with these obligations. The rules dealing with how to make claims, how payments are made and review of decisions relating to farm household allowance are found in the Social Security Act and the Social Security Administration Act. (This is because Part 5 of this Act applies and modifies the Social Security Act and the Social Security Administration Act in relation to farm household allowance.) Division 2—Basic qualifications of farmers and their partners for farm household allowance 8 Qualification of farmers for farm household allowance A person is qualified for farm household allowance for a period if throughout the period: (a) the person is a farmer; and (b) the person contributes a significant part of his or her labour and capital to a farm enterprise; and (c) the farm enterprise has a significant commercial purpose or character; and (d) the land that is used for the purposes of the farm enterprise is in Australia; and (e) the person has turned 16; and (f) the person is an Australian resident, and is in Australia; and (g) either: (i) the person has indicated, in writing, that the person is willing to enter into, and comply with, a financial improvement agreement; or (ii) a financial improvement agreement is in force in relation to the person; and (h) the person meets the 4 years or less requirement. Note 1: For paragraph (b), see section 11 if a person is exempt from the activity test under section 31 (temporary incapacity). Note 2: Paragraph (f) is subject to Division 7 (overseas portability). Note 3: This section is subject to section 12 (no effective control of farm enterprises). 9 Qualification of farmers' partners for farm household allowance A person is qualified for farm household allowance for a period if throughout the period: (a) the person is not qualified for farm household allowance under section 8; and (b) the person is a member of a couple; and (c) the person's partner is a farmer; and (d) the farmer contributes a significant part of his or her labour and capital to a farm enterprise; and (e) the farm enterprise has a significant commercial purpose or character; and (f) the land that is used for the purposes of the farm enterprise is in Australia; and (g) the farmer resides in Australia; and (h) the person is an Australian resident, and is in Australia; and (i) either: (i) the person has indicated, in writing, that the person is willing to enter into, and comply with, a financial improvement agreement; or (ii) a financial improvement agreement is in force in relation to the person; and (j) the person meets the 4 years or less requirement. Note 1: For paragraph (d), see section 11 if a person is exempt from the activity test under section 31 (temporary incapacity). Note 2: Paragraph (h) is subject to Division 7 (overseas portability). Note 3: This section is subject to sections 10 (grace period for farmers' partners) and 12 (no effective control of farm enterprises). 10 Grace period for farmers' partners (1) This section applies if: (a) a person was qualified for farm household allowance under section 9 as a partner of a farmer; and (b) the person would (apart from this section) have ceased to be qualified for farm household allowance on a day (the grace period start day) only because: (i) the person ceased to be a member of a couple on that day; or (ii) the person's partner was in gaol or undergoing psychiatric confinement on that day, and could not contribute a significant part of his or her labour or capital to a farm enterprise as a result of the imprisonment or confinement. (2) The person remains qualified under section 9 for farm household allowance for the period: (a) starting on the grace period start day; and (b) ending on the earlier of the following days: (i) the day the person otherwise ceases to be qualified for farm household allowance under that section; (ii) the day that is 14 weeks after the grace period start day. 11 Persons with temporary incapacity exemption may be taken to meet the labour requirement A person who is exempt from the activity test under section 31 (temporary incapacity) for a period is taken to contribute a significant part of his or her labour to a farm enterprise during the period if the person contributed a significant part of his or her labour to the farm enterprise immediately before becoming incapacitated. 12 Persons not qualified if Secretary determines that they do not effectively control farm enterprises (1) A person is not qualified, or ceases to be qualified, for farm household allowance for a period if the Secretary determines that: (a) during the period: (i) for a person who qualifies under section 8 as a farmer—the person is not effectively in control of the farm or farm enterprise in relation to which the person claims the allowance; or (ii) for a person who qualifies under section 9 as a partner of a farmer—the farmer is not effectively in control of the farm or farm enterprise in relation to which the person claims the allowance; and (b) farm household allowance should not be payable to the person for the period. Note Some examples of cases in which the Secretary may consider that a person is not effectively in control of a farm or farm enterprise are when a mortgagee has taken possession of a farm, when a person is a bankrupt or when an eviction notice has been served on a person in respect of a farm. (2) A person may effectively be in control of a farm enterprise that is a designated private trust even if the person does not pass the control test in relation to the farm enterprise under section 1207V of the Social Security Act. 13 Determination of matters relating to qualification for farm household allowance (1) The Secretary's rules may prescribe matters the Secretary must take into account in deciding whether the requirement in paragraph 8(b) or (c), or paragraph 9(d) or (e), is met. (2) To avoid doubt, the Secretary's rules do not limit the matters the Secretary may take into account in deciding whether the requirement is met. Division 3—Financial improvement agreements 14 Requirement to enter financial improvement agreement (1) The Secretary may require a person to enter a financial improvement agreement if: (a) such an agreement is not already in force in relation to the person; and (b) either: (i) the person is receiving, or has made a claim for, farm household allowance; or (ii) the Department is contacted by or on behalf of the person in relation to a claim for farm household allowance. (2) The Secretary may require a person to enter into another financial improvement agreement if a financial improvement agreement is already in force in relation to the person. Note: The earlier financial improvement agreement is cancelled in accordance with section 17. Giving notice of requirement (3) The Secretary must give a person who is required to enter a financial improvement agreement written notice of: (a) the requirement; and (b) the places and times at which the agreement is to be negotiated; and (c) the period (of not more than 28 days) within which the person must comply with the notice; and (d) a description of consequences that may apply if the person does not comply with the notice. Note: For the consequences that may apply if the person does not comply with the notice, see sections 71 and 72. (4) The Secretary may, in writing, extend the period under paragraph (3)(c) once by no more than 28 days. Form of financial improvement agreement (5) A financial improvement agreement must be in a form approved by the Secretary. 15 Terms of financial improvement agreement (1) A financial improvement agreement that is in force in relation to a person is to contain one or more terms (the requirements) that: (a) require the person to undertake activities for the purposes of the activity test; and (b) the Secretary regards as suitable for the person. Note: For the activities that may be undertaken, see section 19. (2) A financial improvement agreement must not contain a requirement of a kind prescribed by the Secretary's rules for the purposes of this subsection. (3) To avoid doubt, the Secretary's rules do not limit the Secretary's discretion to exclude other kinds of requirements from a particular financial improvement agreement under subsection (1). Optional terms (4) A financial improvement agreement may also contain one or more terms that the person may, but is not required to, comply with. 16 Approval of requirements (1) The requirements in a financial improvement agreement are to be approved by the Secretary. (2) In considering whether to approve the requirements in a financial improvement agreement that will be in force in relation to a person, the Secretary is to have regard to: (a) the person's capacity to comply with the requirements; and (b) the person's needs. Matters to take into account in determining person's capacity to comply with requirements (3) In having regard to a person's capacity to comply with the requirements in a financial improvement agreement, the Secretary is to take into account the following matters: (a) the person's education, experience, skills and age; (b) the impact of any disability, illness, mental health condition or physical condition of the person on the person's ability to participate in activities; (c) the participation opportunities available to the person; (d) the family and caring responsibilities of the person, including whether: (i) the person is a registered and active foster carer of a child; or (ii) the person is a home educator or distance educator of a child; or (iii) a child lives with the person under a family law order, or other document that is prepared or accepted by an authority of a State or Territory that has responsibility for the wellbeing of children; or (iv) there are 4 or more children (which may include secondary pupil children), and the person is the principal carer or main supporter of the children; (e) the length of travel time required to comply with the requirements; (f) the financial costs (such as travel costs) of complying with the requirements, and the person's capacity to pay for such costs; (g) the state of the local labour market and the transport options available to the person in accessing that market; (h) any other matters that the Secretary or the person considers relevant in the circumstances. 17 Variation, cancellation and review A financial improvement agreement that is in force in relation to a person: (a) may be varied (in negotiation with the person); and (b) must be cancelled by the Secretary if the person enters into another financial improvement agreement; and (c) may be reviewed from time to time by the Secretary on request or on his or her own initiative; and (d) may be cancelled by the Secretary after a review under paragraph (c). 18 Notification of circumstances preventing or affecting compliance (1) A person must notify the Secretary of any circumstance preventing or affecting the person's capacity to comply with the requirements in a financial improvement agreement that is in force in relation to a person. Note: For the consequences of failing to comply with this section, see sections 71 and 72. (2) The person must notify the Secretary under subsection (1) within 14 days of the circumstance occurring. (3) The Secretary may determine, in writing, that this section does not apply if the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to give the notification. Division 4—The activity test 19 The activity test Undertaking activities (1) A person satisfies the activity test for a period if the person satisfies the Secretary that, throughout the period, the person is complying with requirements in the person's financial improvement agreement for the person to undertake any of the following activities for the purposes of the activity test: (a) participating in training in accordance with section 20; (b) receiving advice in accordance with section 20; (c) undertaking study; (d) actively seeking, or being willing to undertake, paid work in Australia (other than paid work that is unsuitable to be undertaken by the person); (e) undertaking any other activity. Note 1: For determining whether work is unsuitable, see section 21. Note 2: A person may qualify for the activity supplement by undertaking activities for the purposes of the activity test (see Part 3). Meeting prescribed conditions (2) Alternatively, a person satisfies the activity test for a period if the person satisfies the Secretary that, throughout the period, the person satisfies any conditions prescribed by the Secretary's rules for the purposes of this subsection. 20 Training and advice to be provided by appropriately qualified person (1) Training must be provided by a person or body who: (a) is a registered training organisation; or (b) has been approved, in writing, by the Secretary. (2) For the purposes of Part 4 of the Social Security Administration Act (as it applies because of Part 5 of this Act), a decision made under paragraph (1)(b) is taken not to be a decision under the social security law. (3) Advice must be provided by a person who: (a) has a qualification: (i) in a relevant field from a tertiary institution; and (ii) that is recognised by a professional institution or body; and (b) is independent from: (i) the person (the recipient) to whom the advice is provided; and (ii) if the recipient is a member of a couple—the partner of the recipient; and (c) does not have any right or interest in: (i) the farm; or (ii) any asset that is owned by the recipient, the partner of the recipient or the farm enterprise. 21 Determining whether work is unsuitable (1) This section applies in determining whether work is unsuitable to be undertaken by a person for the purposes of paragraph 19(1)(d). Matters to be taken into account (2) The Secretary must take into account the following matters: (a) any other employment of the person that does not relate to the relevant farm; (b) the person's education, experience, skills and age, and whether the employer for the work referred to in subsection (1) would provide training; (c) any disability, illness, mental health condition or physical condition of the person; (d) any family or caring responsibilities of the person; (e) if the person is a farmer—the workload associated with the operation of the farm; (f) any other matters that the Secretary considers relevant in the circumstances. When work is unsuitable (3) Despite subsection (2), particular paid work is unsuitable to be undertaken by a person if in the Secretary's opinion: (a) the conditions in which the work would be performed would constitute a risk to health or safety and would contravene a law of the Commonwealth, a State or a Territory relating to occupational health and safety; or (b) the terms and conditions for the work would be less generous than the applicable statutory conditions; or (c) commuting between the person's home and the place of work would be unreasonably difficult; or (d) the work would require enlistment in the Defence Force or the Reserves; or (e) the work would require the person to move from a home in a place to a home in another place; or (f) performing the work would jeopardise the current employment, or the employment prospects, of the person's partner; or (g) the educational, cultural or religious background of the person makes it unreasonable for the person to perform the work; or (h) it is more appropriate for the person to participate in training, receive advice or undertake study than to perform the work; or (i) the person would suffer severe financial hardship if the person were to perform the work. Determination of additional matters (4) The Secretary's rules may prescribe matters that the Secretary must take into account in deciding whether, for the purposes of paragraph (2)(f), particular paid work is unsuitable to be undertaken by a person. (5) To avoid doubt, the Secretary's rules do not limit the matters that the Secretary may take into account in deciding whether particular paid work is unsuitable to be undertaken by a person. Division 5—Exemptions from the activity test Subdivision A—General exemptions determined by the Secretary 22 Determination of exemption by Secretary (1) A person is exempt from the activity test for a period if the Secretary makes a determination under this Subdivision. (2) The Secretary may revoke a determination under this Subdivision if the Secretary is satisfied that the grounds on which the determination was made no longer exist. (3) Subsection (2) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a determination under this Subdivision. 23 Essential farm activities (1) A farmer who qualifies for farm household allowance under section 8 is exempt from the activity test for a period if the Secretary is satisfied that requiring the farmer to satisfy the activity test during the period would prevent the farmer from undertaking activities that are essential to the operation of the farm. (2) The Secretary may, in writing, determine the period during which the farmer is exempt. (3) The period must not exceed 6 weeks (and must not be extended). (4) The Secretary may not exempt a farmer under this section from the activity test if, during the previous 12 months, the farmer has already been exempt under this section for 2 other periods (irrespective of the length of the periods, or whether farm household allowance was payable during the periods). 24 Domestic violence etc. (1) The Secretary may make a determination in relation to a person for a period if the Secretary is satisfied that: (a) the person: (i) is the principal carer of one or more children; and (ii) was subjected to domestic violence in the 26 weeks before the making of the determination; or (b) the person is the 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. Determination of matters Secretary must take into account (2) The Secretary's rules may prescribe matters that the Secretary must take into account in deciding whether there are special circumstances relating to a person's family that make it appropriate to make a determination. (3) To avoid doubt, the Secretary's rules do not limit the matters that the Secretary may take into account in deciding whether to make a determination under paragraph (1)(b). Period of determination (4) If a determination is made on grounds referred to in paragraph (1)(a) (or on grounds that include those grounds), the period that the Secretary determines must be 16 weeks. (5) Otherwise, the period that the Secretary determines must be the lesser of: (a) the period that the Secretary considers to be appropriate; or (b) 16 weeks. (6) A period referred to in subsection (4) or (5) may be followed by one or more other periods (each of those other periods not exceeding 16 weeks) determined in relation to the person. 25 People with disabled children (1) The Secretary may make a determination in relation to a person for a period if the Secretary is satisfied that the person is the principal carer of one or more children: (a) who have a disability, illness, mental health condition or physical condition; and (b) whose care needs are such that the person should not be required to satisfy the activity test for the period. Period of determination (2) The period that the Secretary determines must be the lesser of: (a) the period that the Secretary considers to be appropriate; or (b) 12 months. (3) The period determined by the Secretary in relation to a person may be followed by one or more other periods (each of those other periods not exceeding 12 months) determined in relation to the person. 26 Inclusion in prescribed class (1) The Secretary may make a determination in relation to a person for a period if the Secretary is satisfied that: (a) the person is in a class of persons prescribed by the Secretary's rules for the purposes of this subsection; and (b) the person's circumstances are such that the person should not be required to satisfy the activity test for the period. Period of determination (2) The period that the Secretary determines must be the lesser of: (a) the period that the Secretary considers to be appropriate; or (b) 12 months. (3) The period determined by the Secretary in relation to a person may be followed by one or more other periods (each of those other periods not exceeding 12 months) determined in relation to the person. 27 Exemption where requirement for person to satisfy the activity test would be unreasonable The Secretary may make a determination in relation to a person for a period if the Secretary is satisfied that, having regard to all the relevant factors, including the following, it would be unreasonable to expect the person to satisfy the activity test for that period: (a) the location of offices of the Department or the Human Services Department; (b) difficulties with transport and communication; (c) the educational, cultural or religious background of the person. 28 Special circumstances (1) The Secretary may make a determination in relation to a person for a period if: (a) the Secretary is satisfied that special circumstances, beyond the person's control, exist; and (b) the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to satisfy the activity test for that period. Period of determination (2) The period must not exceed 13 weeks (and must not be extended). Subdivision B—Automatic general exemptions 29 Members of Defence Reserves A person is exempt from the activity test for a period if the person is attending a training camp during the period as a member of the Reserves. 30 Prenatal and postnatal exemption (1) A pregnant woman is exempt from the activity test for the period that: (a) starts 6 weeks before the woman's expected date of confinement; and (b) ends on the day the woman gives birth to the child (whether or not the child is born alive). (2) If a woman gives birth to a child (whether or not the child is born alive), the woman is exempt from the activity test for the period that: (a) starts on the day she gives birth to the child; and (b) ends 6 weeks after that day. Subdivision C—People temporarily incapacitated 31 Temporarily incapacitated person exempt from the activity test (1) A person is exempt from the activity test for a period if: (a) throughout the period, because of sickness or an accident, the person is incapacitated and cannot undertake any activities for the purposes of the activity test for more than 8 hours a week; and (b) in the Secretary's opinion, no activities are of a kind that the person could be reasonably expected to undertake for the purposes of the activity test for more than 8 hours a week; and (c) the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and (d) the incapacity is, or is likely to be, of a temporary nature; and (e) the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating: (i) the medical practitioner's diagnosis; and (ii) the medical practitioner's prognosis; and (iii) that the person is incapacitated and cannot undertake any activities for the purposes of the activity test for more than 8 hours a week; and (iv) the period for which the person is incapacitated; and (f) the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test. Note: A person who is exempt from the activity test under this section may still be taken to contribute a significant part of his or her labour to a farm enterprise (see section 11). Requirements for making decisions (2) The Secretary must comply with any requirements prescribed by the Minister's rules in deciding the following: (a) whether paragraph (1)(a), (c) or (d) applies to a person for a period; (b) whether, for the purposes of paragraph (1)(b), an activity is of a kind that a person could be reasonably expected to undertake. 32 Time limit for exemption—end of person's maximum exemption period Cessation of exemption (1) A person ceases to be exempt under section 31 from the activity test if the person's maximum exemption period ends. Maximum exemption period (2) A person's maximum exemption period is: (a) if the person has, whether before or after the commencement of this section, given the Secretary a medical certificate for the purpose of enabling the Secretary to decide whether the person was required to satisfy the activity test—the lesser of the following periods: (i) the period stated in the certificate as the period for which the person would be incapacitated and could not undertake any activities for the purposes of the activity test for more than 8 hours a week; (ii) the period of 13 weeks that started or starts on the first day of the period so stated in the certificate; or (b) otherwise—the period of 4 weeks that started or starts on the day determined by the Secretary to have been the day on which the person's incapacity began. Extension of maximum exemption period (3) The Secretary may extend a person's maximum exemption period if: (a) both of the following apply: (i) the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner that states the matters listed in paragraph 31(1)(e) and is in accordance with the form approved for the purposes of that paragraph; (ii) the Secretary is satisfied that the person's incapacity will continue after the end of the person's maximum exemption period; or (b) both of the following apply: (i) within 14 days after the end of the person's maximum exemption period the person gives the Secretary a certificate of a medical practitioner that states the matters listed in paragraph 31(1)(e) and is in accordance with a form approved for the purposes of that paragraph; (ii) the Secretary is satisfied that the person's incapacity has continued after the end of the person's maximum exemption period and that the incapacity will continue. (4) The extension of the maximum exemption period under subsection (3) must not be more than the lesser of the following periods: (a) the period stated in the certificate as the period for which the person will be incapacitated; (b) 13 weeks. (5) The Secretary may extend a person's maximum exemption period, by no more than 4 weeks, if: (a) all of the following apply: (i) the person gives the Secretary written evidence (other than a certificate referred to in subparagraph (3)(a)(i)) that the person's incapacity will continue after the end of the person's maximum exemption period; (ii) the Secretary is satisfied that the person's circumstances make it unreasonable to expect the person to obtain a certificate referred to in subparagraph (3)(a)(i) before the end of the maximum exemption period; (iii) the Secretary is satisfied that person's incapacity will continue after the end of the person's maximum exemption period; or (b) all of the following apply: (i) within 14 days after the end of the person's maximum exemption period the person gives the Secretary written evidence (other than a certificate referred to in subparagraph (3)(b)(i)) that the person's incapacity will continue after the end of the person's maximum exemption period; (ii) the Secretary is satisfied that the person's circumstances make it unreasonable to expect the person to obtain a certificate referred to in subparagraph (3)(b)(i); (iii) the Secretary is satisfied that the person's incapacity has continued after the end of the person's maximum exemption period and that the incapacity will continue; or (c) all of the following apply: (i) the person has, whether before or after the commencement of this section, given the Secretary a certificate referred to in subparagraph (3)(a)(i) before the end of the person's maximum exemption period; (ii) before the end of the person's maximum exemption period, the Secretary does not satisfy himself or herself that the person's incapacity will continue after the end of that period; (iii) the sole or dominant cause of the Secretary failing to satisfy himself or herself is an act or omission of an officer of the Department. Division 6—Payability Subdivision A—Situations where allowance not payable (assets test) 33 Assets value limit Farm household allowance is not payable to a person if the sum of the value of the person's farm assets and of the value of the person's non‑farm assets exceeds $5.5 million. 35 Meaning of farm assets and non‑farm assets (1) A farm asset is any asset that is used or held wholly or mainly for the purposes of a farm enterprise, but does not include the following: (a) cash; (b) money on deposit with an authorised deposit‑taking institution within the meaning of the Banking Act 1959; (c) a farm management deposit within the meaning of the Income Tax Assessment Act 1997; (d) an asset of a kind prescribed by the Minister's rules. (2) Without limiting subsection (1), each of the following is a farm asset: (a) a right or interest in land used wholly or mainly for the purposes of a farm enterprise; (b) a right or interest in livestock, crop, plant or equipment that: (i) is produce of a farm enterprise; or (ii) is used wholly or mainly for the purposes of a farm enterprise; other than any livestock, crop, plant or equipment leased out by the farm enterprise; (c) a water entitlement right that is used or held wholly or mainly for the purposes of a farm enterprise; (d) so much of a loan to which subsection (2A) applies as: (i) is used to purchase a thing covered by subsection (1) or paragraph (a), (b) or (c) of this subsection; and (ii) remains unpaid. (2A) This subsection applies to a loan at a particular time if: (a) it was made by a beneficiary of a trust to the trustee of the trust, or by a shareholder of a company to the company; and (b) the outstanding amount of the principal of the loan exceeds, at that time, the total value of all the financial investments: (i) the trustee has in the capacity of trustee; or (ii) the company has. (3) A non‑farm asset is an asset other than a farm asset. Note 1: A farm management deposit (within the meaning of the Income Tax Assessment Act 1997) is an example of a non‑farm asset. Note 2: The value of the person's principal home (if any) is not counted for the purposes of this Subdivision because of Division 1 of Part 3.12 of the Social Security Act. 35A Meaning of water entitlement right (1) A water entitlement right is: (a) any right conferred by or under a law of a State or Territory to do either or both of the following: (i) to hold water from a water resource; (ii) to take water from a water resource; or (b) an irrigation right (within the meaning of the Water Act 2007); or (c) a water delivery right (within the meaning of the Water Act 2007); or (d) a right of a kind prescribed by the Minister's rules; or (e) a contractual right that a person holds to all or part of another person's right covered by paragraph (a), (b), (c) or (d). (2) Without limiting paragraph (1)(a), that paragraph includes the following: (a) stock and domestic rights; (b) riparian rights; (c) a water access entitlement; (d) a water allocation. (3) A water access entitlement is a perpetual or ongoing entitlement, by or under a law of a State or Territory, to exclusive access to a share of the water resources of an area in the State or Territory. (4) A water allocation is the specific volume of water allocated to a water access entitlement in a given period. (5) A water resource is: (a) surface water or ground water; or (b) a watercourse, lake, wetland or aquifer (whether or not it currently has water in it). An expression used in paragraph (a) or (b) that is also used in the Water Act 2007 has the same meaning as in that Act. 36 Meaning of value of assets (1) For a person who is a member of a couple: (a) the value of the person's assets includes the value of the partner's assets; and (b) the value of the person's assets of a particular kind includes the value of the partner's assets of that kind. (2) The value of a person's farm assets includes so much of an amount as is, because of the ownership of a farm asset, included in the value of the person's assets under Part 3.18 (means test treatment of private companies and trusts) of the Social Security Act (as that Part applies because of Part 5 of this Act). (3) The value of a person's non‑farm assets includes so much of an amount as is, because of the ownership of a non‑farm asset, included in the value of the person's assets under Part 3.18 (means test treatment of private companies and trusts) of the Social Security Act (as that Part applies because of Part 5 of this Act). (4) The value of a person's non‑farm assets includes so much of an amount as is, because of a disposal of an asset, included in the value of the person's assets under Division 2 of Part 3.12 of the Social Security Act (as that Division applies because of Part 5 of this Act). Note: Division 2 of Part 3.12 of that Act includes in the value of a person's assets an amount if an asset is destroyed, disposed of (for example, by gift) or if its value is diminished in certain ways. If the asset was a farm asset, the amount will be included in the value of the person's non‑farm assets. 36A Valuing a water entitlement right If, in working out the value of a person's farm assets, the value of a right or interest in land used wholly or mainly for the purposes of a farm enterprise includes the value of a water entitlement right that is used or held wholly or mainly for the purposes of that farm enterprise, then the value of that water entitlement right is to be disregarded in working out the value of the person's farm assets referred to in paragraph 35(2)(c). Subdivision B—Situations where allowance not payable (general) 37 Farm household allowance not payable if allowance rate nil (1) Farm household allowance is not payable to a person if the person's allowance rate would be nil. (2) However, subsection (1) does not apply to a person if the person's rate would be nil merely because the person has been paid an advance pharmaceutical allowance under the social security law. 38 Multiple entitlement exclusion (1) This section sets out when farm household allowance is not payable to a person because the person receives another pension, benefit, supplement or allowance. (2) The allowance is not payable if: (a) the person is already receiving age pension, a service pension, income support supplement or a veteran payment; or (b) a social security pension, another social security benefit, a service pension, income support supplement or a veteran payment becomes payable to the person. (3) For the purposes of paragraph (2)(b), the allowance is not payable from (and including) the day the pension, benefit or supplement becomes payable. Receipt of veterans benefits (4) The allowance is not payable if: (a) the person is an armed services widow or armed services widower; and (b) either: (i) the person is receiving a pension under Part II or IV of the Veterans' Entitlements Act at a rate determined under or by reference to subsection 30(1) of that Act; or (ii) the person is receiving the weekly amount mentioned in paragraph 234(1)(b) of the MRCA (including a reduced weekly amount because of a choice under section 236 of the MRCA) or has received a lump sum mentioned in subsection 236(5) of the MRCA. (5) Despite subparagraph (4)(b)(i) of this section, farm household allowance is payable to the person if: (a) the person is a woman who has been receiving the pension under Part II or IV of the Veterans' Entitlements Act continuously since before 1 November 1986; and (b) before 1 November 1986 the woman was also receiving a social security benefit. Receipt of payments for other educational etc. schemes (6) The allowance is not payable for a period if a payment has been or may be made in respect of the person for that period under: (a) a prescribed educational scheme other than the ABSTUDY Scheme; or (b) the ABSTUDY Scheme, to the extent that it applies to full‑time students; or (c) the scheme to provide an allowance known as: (i) the Maintenance Allowance for Refugees; or (ii) the Adult Migrant Education Program Living Allowance; or (iii) the English as a Second Language Allowance, to the extent that it applies to full‑time students. (7) Despite subsection (6), the Secretary may determine that farm household allowance is payable to the person for: (a) a period before the person starts a full‑time course of education; or (b) a period of 3 weeks starting on the day the person starts a full‑time course of education if: (i) the person was receiving farm household allowance immediately before starting the course; and (ii) an application is made for a payment in respect of the person under the ABSTUDY Scheme. Subdivision C—Situations where allowance not payable (waiting period) 39 Waiting period Farm household allowance is not payable to a person while the person is subject to a newly arrived resident's waiting period (see sections 42 and 43). 42 Newly arrived resident's waiting period (1) A person is (subject to subsection (2)) subject to a newly arrived resident's waiting period if the person has not been an Australian resident and in Australia for a period of, or periods totalling, 208 weeks. Exception (2) The following persons are not subject to a newly arrived resident's waiting period: (c) a person who has a qualifying residence exemption for a farm household allowance; (h) a person in relation to whom all of the following apply: (i) the person is the principal carer of one or more children; (ii) the person is not a member of a couple; (iii) the person was not a lone parent at the start of the person's current period as an Australian resident; (i) a person who is a refugee, or a former refugee, at the time the person made the claim for farm household allowance; (j) a person in relation to whom the following apply: (i) before the person made the claim for farm household allowance, the person was an eligible family member of another person at the time the other person became a refugee; (ii) the person is an eligible family member of that other person at the time the person made the claim for farm household allowance or, if that other person has died, the person was an eligible family member of that other person immediately before that other person died; (k) a person who is an Australian citizen at the time the person made the claim for farm household allowance. 43 Duration of newly arrived resident's waiting period A person's newly arrived resident's waiting period: (a) starts on the day the person first became an Australian resident; and (b) ends when the person has been an Australian resident and in Australia for a period of, or periods totalling, 208 weeks. Subdivision D—Other situations where farm household allowance not payable 48 Seasonal workers (1) This section applies if, at any time during the 6 months immediately before the day a person lodges a claim for farm household allowance, the person, or, if the person is a member of a couple, the person or the person's partner, has been engaged in seasonal work. (2) Farm household allowance is not payable to a person who is subject to a seasonal work preclusion period (whether in relation to the claim referred to in subsection (1) or any other claim under the Social Security Act) for the person's seasonal work preclusion period. (3) Despite subsection (2), the Secretary may determine that a person is not subject to the whole, or any part, of the preclusion period if the Secretary is satisfied that the person is in severe financial hardship because the person has incurred substantiated unavoidable or reasonable expenditure while the person is subject to a seasonal work preclusion period (whether in relation to the claim referred to in subsection (1) or any other claim under the Social Security Act). (4) The Secretary's rules may set out ways for substantiating unavoidable or reasonable expenditure. Division 7—Overseas portability 49 Division does not affect need for qualification To avoid doubt, nothing in this Division confers a right on a person to continue to be paid farm household allowance if the person is not qualified for the payment (even if the person's failure to qualify is related to the absence). 50 Persons to whom Division applies This Division applies (subject to section 52 (amounts added to rate)) to a person during a period (the period of absence) throughout which the person is continuously absent from Australia, if: (a) the person was receiving farm household allowance immediately before the period of absence commenced; or (b) the person's claim for such a payment is granted under the Social Security Administration Act during the period of absence. 51 Farm household allowance portable (1) A person's right to continue to be paid farm household allowance, throughout the person's portability period for farm household allowance, is not affected merely by the period of absence. (2) However, farm household allowance is not payable to the person throughout any of the period of absence that occurs after the end of the person's portability period. Reserve service (3) A person's right to continue to be paid farm household allowance is not affected throughout so much of the period of absence as is for the purposes of undertaking Reserve service. 52 Amounts added to rate During the period of absence, rent assistance and pharmaceutical allowance are not to be added to the person's rate worked out in accordance with Division 8 after the end of the person's portability period for farm household allowance. 53 Meaning of allowable absence and portability period Meaning of allowable absence (1) An absence is an allowable absence in relation to farm household allowance at a particular time if, at that time, it is a temporary absence (of no longer than 6 weeks) for any of the following purposes: (a) to seek eligible medical treatment; (b) to attend to an acute family crisis; (c) for a humanitarian purpose. Meaning of portability period (2) A person's portability period for farm household allowance, in relation to the period of absence, is the period: (a) beginning at the commencement of the period of absence; and (b) ending (subject to section 54) at the earlier of the following times: (i) the first time during the period of absence at which the absence is not an allowable absence in relation to the payment; (ii) the end of 6 weeks. Note: People are required (under the Social Security Administration Act) to notify changes in circumstances. 54 Secretary may extend the portability period (1) The Secretary may extend a portability period if the Secretary is satisfied that the person who is not in Australia during the period is absent because: (a) the person is unable to return to Australia because of any of the following events: (i) a serious accident involving the person or a family member of the person; (ii) a serious illness of the person or a family member of the person; (iii) the hospitalisation of the person or a family member of the person; (iv) the death of a family member of the person; (v) the person's involvement in custody proceedings in