Social Security (Means Test Treatment of Private Trusts — Excluded Trusts) Declaration 2005

I, JEFF HARMER, Secretary of the Department of Family and Community Services, acting under subsection 1207P (4) of the Social Security Act 1991:

(a)   revoke the Social Security (Means Test Treatment of Private Trusts – Excluded Trusts) Declaration 2001; and

(b)   make this Declaration.

Dated 26 April 2005

j harmer

Secretary of the Department of Family and Community Services

Part 1 Preliminary

1 Name of Declaration

  This Declaration is the Social Security (Means Test Treatment of Private Trusts — Excluded Trusts) Declaration 2005.

2 Commencement

  This Declaration commences on the day after registration of the Declaration under the Legislative Instruments Act 2003.

3 Purpose

  This Declaration specifies classes of trusts that are excluded trusts for section 1207P of the Act.

4 Definitions

  In this Declaration:

Act means the Social Security Act 1991.

community purpose means a purpose that is intended to benefit primarily the members of a particular community or group.

government body includes the following kinds of body:

 (a) a department or agency of the Commonwealth;

 (b) a department or agency of a State or Territory;

 (c) a municipal corporation or other local government body;

 (d) a body corporate in which the Commonwealth, a State or a Territory body holds a controlling interest.

income has the same meaning as in subsection 1207P (7) of the Act.

indigenous-held land has the same meaning as in section 4B of the Aboriginal and Torres Strait Islander Commission Act 1989.

reference time means 7.30 pm, standard time in the Australian Capital Territory, on 9 May 2000.

Part 2 Specified classes of trusts

5 Community trusts are excluded trusts

 (1) Each trust that is a community trust is an excluded trust for section 1207P of the Act.

 (2) A community trust is a trust that has the sole or dominant purpose of:

 (a) receiving, managing or distributing property transferred directly to it, or through an interposed entity, by a government body for a community purpose; or

 (b) holding, managing or disposing of indigenous-held land, for a community purpose; or

 (c) receiving, managing or distributing income that:

 (i) has been generated from indigenous-held land; and

 (ii) is applied for a community purpose.

6 Fixed trusts created before reference time are excluded trusts

 (1) Each trust that is a fixed trust created before the reference time is an excluded trust for section 1207P of the Act.

 (2) However, a trust referred to in subsection (1) is not an excluded trust, if after the reference time:

 (a) the trust has been varied under the trust deed; or

 (b) there has been a transfer of property (other than income generated by the trust) to the trust.