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Schedule 1—Amendments

Schedule 1 Amendments

Part 1 Amendments commencing first

Division 1—Main amendments

Social Security Act 1991

1  Subsection 23(1)

Insert:

drug test , in relation to a person, means a test that:

                     (a)  is carried out:

                              (i)  directly or indirectly under a contract with the Commonwealth for the carrying out of the test; and

                             (ii)  in accordance with applicable provisions (if any) of the drug test rules; and

                     (b)  is for the presence of a testable drug in a sample taken in the drug test trial period from the person’s saliva, urine or hair.

drug test rules means rules made under section 38FA.

drug test trial area means any of the following:

                     (a)  the part of New South Wales that was the area named Canterbury-Bankstown for the purposes of the Local Government Act 1993 (NSW), as at the start of 1 January 2018;

                     (b)  the part of Queensland that was the local government area named Logan for the purposes of the Local Government Act 2009 (Qld), as at the start of 1 January 2018;

                     (c)  the part of Western Australia that was the district named Mandurah for the purposes of the Local Government Act 1995 (WA), as at the start of 1 January 2018.

drug test trial period means the 24 months starting on the commencement of this definition.

drug test trial pool member : a person is a drug test trial pool member at a time if:

                     (a)  that time is in the drug test trial period; and

                     (b)  at that time the person’s usual place of residence is in a drug test trial area; and

                     (c)  at that time the person is:

                              (i)  receiving newstart allowance; or

                             (ii)  receiving youth allowance otherwise than on the basis that the person is a new apprentice or undertaking full-time study;

                            as a result of a claim made in the drug test trial period; and

                     (d)  if the claim was for youth allowance—the claim was not based on the person being a new apprentice or undertaking full-time study.

positive drug test for a person means an indication by a drug test that a testable drug was present in a sample of the person’s saliva, urine or hair given by the person in compliance with a requirement notified to the person under paragraph 63(4)(c) of the Administration Act.

testable drug means:

                     (a)  methamphetamine; or

                     (b)  methylenedioxy-methamphetamine; or

                     (c)  tetrahydrocannabinol; or

                     (d)  opioids; or

                     (e)  another substance prescribed by the drug test rules for the purposes of this definition.

2  Subsection 23(1) (after paragraph (ca) of the definition of waiting period )

Insert:

                   (cb)  a drug test refusal waiting period under sections 623C and 623D; or

3  At the end of Part 1.3

Add:

38FA   Drug test rules

                   The Minister may, by legislative instrument, make rules (the drug test rules ) providing for and in relation to the following:

                     (a)  prescribing substances for the purposes of the definition of testable drug in subsection 23(1);

                     (b)  giving and taking samples of persons’ saliva, urine or hair for use in drug tests;

                     (c)  dealing with such samples;

                     (d)  carrying out drug tests;

                     (e)  giving results of drug tests in certificates or other documents and the evidentiary effect of those certificates or documents;

                      (f)  confidentiality and disclosure of results of drug tests;

                     (g)  requirements relating to contracts entered into for the carrying out of drug tests;

                     (h)  keeping and destroying records relating to:

                              (i)  samples for use in drug tests; or

                             (ii)  drug tests.

4  After subsection 544B(1)

Insert:

       (1AA)  One of the requirements of a Youth Allowance Employment Pathway Plan that is in force in relation to a person must relate to undertaking treatment of the person for use of drugs if:

                     (a)  the person is a drug test trial pool member; and

                     (b)  the person has 2 (or more) positive drug tests; and

                     (c)  the person has undergone a medical, psychiatric or psychological examination in compliance with a notice given to the person under subsection 63(4) of the Administration Act after the person has had 2 (or more) positive drug tests; and

                     (d)  the report of the examination given to the Secretary recommends that the person undertake treatment for use of drugs.

5  At the end of subsection 549(2)

Add:

                   ; (c)  a drug test refusal waiting period (see sections 549EA and 549EB).

6  After section 549E

Insert:

549EA   Drug test refusal waiting period

                   A person is subject to a drug test refusal waiting period if:

                     (a)  youth allowance that was previously payable to the person is cancelled under section 80 of the Administration Act because the allowance is not payable under section 64 of that Act as that section applies in relation to the person’s non-compliance with a notice requiring the person to do an act described in paragraph 63(4)(c) of that Act; and

                     (b)  after the non-compliance the person qualifies for youth allowance otherwise than on the basis of being a new apprentice or undertaking full-time study.

Note:          Paragraph 63(4)(c) of the Administration Act is about giving a sample for a drug test.

549EB   Length of drug test refusal waiting period

                   The drug test refusal waiting period is the 28 days starting on the day of the cancellation.

7  After subsection 606(1)

Insert:

       (1AA)  One of the requirements of a Newstart Employment Pathway Plan that is in force in relation to a person must relate to undertaking treatment of the person for use of drugs if:

                     (a)  the person is a drug test trial pool member; and

                     (b)  the person has 2 (or more) positive drug tests; and

                     (c)  the person has undergone a medical, psychiatric or psychological examination in compliance with a notice given to the person under subsection 63(4) of the Administration Act after the person has had 2 (or more) positive drug tests; and

                     (d)  the report of the examination given to the Secretary recommends that the person undertake treatment for use of drugs.

8  At the end of Subdivision E of Division 1 of Part 2.12

Add:

623C   Drug test refusal waiting period

                   A person is subject to a drug test refusal waiting period if newstart allowance that was previously payable to the person is cancelled under section 80 of the Administration Act because the allowance is not payable under section 64 of that Act as that section applies in relation to the person’s non-compliance with a notice requiring the person to do an act described in paragraph 63(4)(c) of that Act.

Note:          Paragraph 63(4)(c) of the Administration Act is about giving a sample for a drug test.

623D   Duration of drug test refusal waiting period

                   The drug test refusal waiting period is the 28 days starting on the day of the cancellation.

9  Point 1067G-A1 (method statement, step 14, after paragraph (b))

Insert:

             (ba)     if there is any amount remaining, subtracting from that amount any drug test repayment deduction (see Part 3.16C); and

10  Point 1068-A1 (method statement, step 7, after paragraph (b))

Insert:

             (ba)     if there is any amount remaining, subtracting from that amount any drug test repayment deduction (see Part 3.16C); and

11  After Part 3.16B

Insert:

Part 3.16C Drug test repayment deductions

   

1206XA   Drug test repayment deduction

Drug test repayment deduction to be made if person has drug test repayment deficit

             (1)  A drug test repayment deduction is to be made from the rate of newstart allowance that is payable to a person, or of youth allowance that is payable to a person who is not a new apprentice and is not undertaking full-time study, if the person has a drug test repayment deficit.

When person has drug test repayment deficit

             (2)  A person has a drug test repayment deficit at a time if the sum of all the drug test repayment amounts that arose for the person before that time exceeds the sum of the amounts by which instalments of social security benefit paid to the person before that time have been properly reduced by the making of drug test repayment deductions.

Amount of drug test repayment deficit

             (3)  The amount of the deficit is the amount of the excess.

Drug test repayment amount

             (4)  A drug test repayment amount arises for a person for each positive drug test for the person, except a positive drug test resulting from a drug test that:

                     (a)  was not carried out at the request of the person; and

                     (b)  used a sample given by the person under the requirement notified to the person in the first notice under paragraph 63(4)(c) of the Administration Act that the person complied with.

             (5)  However, a drug test repayment amount is taken not to have arisen for a person from a positive drug test if the contractor who carried out the test gives written notice to the Secretary that the test should not be taken into account for the purposes of this Part.

Amount of drug test repayment amount

             (6)  The amount of a drug test repayment amount is the amount prescribed by legislative instrument under subsection (7).

             (7)  The Secretary may make a legislative instrument for the purposes of subsection (6). In doing so, the Secretary must have regard to the lowest cost to the Commonwealth of any drug test that could be carried out at the time the legislative instrument is to commence.

1206XB   Amount of drug test repayment deduction—basic calculation

             (1)  The amount of a drug test repayment deduction is the percentage, worked out in accordance with subsection (3), and section 1206XC or 1206XD (if relevant), of:

                     (a)  for a deduction from the rate of newstart allowance payable to a person—the person’s rate of benefit worked out under step 7 of the method statement in point 1068-A1, disregarding paragraphs (ba) and (c) of that step; or

                     (b)  for a deduction from the rate of youth allowance payable to a person—the person’s rate of allowance worked out under step 14 of the method statement in point 1067G-A1, disregarding paragraphs (ba) and (c) of that step.

             (2)  Subsection (1) has effect subject to section 1206XE.

Percentage

             (3)  For the purposes of subsection (1), the percentage is the percentage prescribed by legislative instrument under subsection (4). This subsection has effect subject to sections 1206XC and 1206XD.

             (4)  The Secretary may make a legislative instrument for the purposes of subsection (3). The instrument must not prescribe a percentage greater than 10%.

1206XC   Person may request greater percentage for drug test repayment deduction

             (1)  The percentage for working out a person’s drug test repayment deduction is increased to a greater percentage if the person asks the Secretary in writing for the percentage to be the greater percentage.

             (2)  Subsection (1) does not apply if the Secretary is satisfied that the person would suffer severe financial hardship if the percentage were the greater percentage.

1206XD   Reduction of percentage for drug test repayment deduction in cases of severe financial hardship

Reduction

             (1)  The Secretary may determine that, for the period specified in the determination, the percentage for working out a person’s drug test repayment deduction is to be a percentage (which may be nil) specified in the determination that is less than the percentage that would otherwise apply, if the Secretary is satisfied that:

                     (a)  the person’s circumstances are exceptional; and

                     (b)  the person would suffer severe financial hardship if the percentage that would otherwise apply were to continue to apply.

Review of reduction

             (2)  At any time while the determination is in force, the Secretary may:

                     (a)  vary the determination so as to apply a percentage greater than the percentage previously applying under the determination, but less than the percentage applying immediately prior to the determination; or

                     (b)  revoke the determination;

but only if the Secretary is satisfied that the person would not suffer severe financial hardship because of the variation or revocation.

1206XE   The final drug test repayment deduction

                   If, apart from this section, the reduction of an instalment of the person’s newstart allowance or youth allowance by the making of a drug test repayment deduction would be greater than the person’s drug test repayment deficit immediately before the payment of the instalment, the drug test repayment deduction is reduced so that the reduction of the instalment equals the deficit.

1206XF   Rounding of amounts

                   Amounts worked out under this Part must be rounded to the nearest cent (rounding 0.5 cents upwards).

Social Security (Administration) Act 1999

12  After subsection 37(7)

Insert:

          (7A)  Despite subsections (2), (3), (6) and (7), in the drug test trial period the Secretary must not determine that a claim for newstart allowance or youth allowance by a potential drug test trial pool member is to be granted unless the Secretary is satisfied that the claimant acknowledged in the claim that the claimant could be required to give samples for drug tests to be carried out in that period.

13  Subsection 63(2)

Omit “referred to in paragraph (4)(a) or (b)”, substitute “described in paragraph (4)(a), (b) or (c)”.

14  After subsection 63(2)

Insert:

          (2A)  The Secretary may also notify a person under subsection (2) that he or she is required, at or within a specified time, to do an act described in paragraph (2)(a) if:

                     (a)  the person was, while the person was a drug test trial pool member, earlier required under that subsection to do that act but did not comply with that earlier requirement; and

                     (b)  because of that non-compliance and subsection 64(1), the social security payment the person received as such a member is not payable to the person (whether or not the payment is suspended).

To avoid doubt, the notification is taken for all purposes to be under subsection (2).

15  After paragraph 63(4)(b)

Insert:

                 or (c)  if the person is a drug test trial pool member—give a sample of a particular kind at a particular place for a drug test to be carried out (at that place or elsewhere) on the sample;

16  After subsection 63(4)

Insert:

          (4A)  The Secretary must not notify a person of a requirement to do an act described in paragraph (4)(c) if 5,000 other persons have given samples in compliance with such requirements (whether or not any of those other persons have given 2 or more samples under one or more such requirements).

Note:          This does not prevent the Secretary from notifying a particular person multiple times of such requirements, as long as fewer than 5,000 other persons have given samples under such requirements.

          (4B)  The Secretary may also notify a person under subsection (4) that he or she is required, at or within a specified time, to do an act or thing described in paragraph (4)(b) or (c) if:

                     (a)  the person was, while the person was a drug test trial pool member, earlier required:

                              (i)  under that subsection to do that act or thing; or

                             (ii)  under subsection (2) to attend an office of the Department;

                            but did not comply with that earlier requirement; and

                     (b)  because of that non-compliance and subsection 64(1), the social security payment the person received as such a member is not payable to the person (whether or not the payment is suspended).

To avoid doubt, the notification is taken for all purposes to be under subsection (4).

17  After subsection 64(1)

Insert:

       (1AA)  A notice of a requirement to do an act described in paragraph 63(4)(c) is not unreasonable for the purposes of paragraph (1)(c) of this section merely because of the nature of the act (even if it is not the first notice requiring the person to do such an act).

18  After section 64

Insert:

64A   Contractual arrangements relating to drug tests

             (1)  The Secretary may, on behalf of the Commonwealth, for the purposes of paragraph 63(4)(c), enter into contracts for the carrying out of drug tests mentioned in that paragraph.

             (2)  A contract mentioned in subsection (1) must meet any requirements prescribed by the drug test rules.

             (3)  Without limiting subsection (2), the drug test rules may require a contract mentioned in subsection (1) to include provisions requiring the following:

                     (a)  giving the Secretary written notice of the results of the drug test;

                     (b)  giving notice as mentioned in paragraph 123UFAA(1A)(c) in particular circumstances;

                     (c)  withdrawing or revoking a notice as mentioned in paragraph 123UFAA(1A)(d) in particular circumstances;

                     (d)  giving notice as mentioned in subsection 1206XA(5) of the 1991 Act in particular circumstances;

                     (e)  any subcontracts to include provisions requiring matters mentioned in paragraphs (a) to (d).

19  Section 110A

Before “If:”, insert “(1)”.

20  At the end of section 110A

Add:

Suspension for drug test pool member’s failure to do certain things

             (2)  Subsection (3) applies if:

                     (a)  payment of social security payment to a person was suspended because of subsection 64(1) applying in relation to the person’s non-compliance with a requirement (the earlier requirement ) to do an act or thing described in paragraph 63(2)(a) or 63(4)(b) or (c) notified to the person while he or she was a drug test pool member; and

                     (b)  if the earlier requirement was to do an act described in paragraph 63(2)(a)—it is reasonable to expect that, had the person complied with the earlier requirement, the person would have been required to do an act described in paragraph 63(4)(c); and

                     (c)  the person complies with:

                              (i)  a later requirement under subsection 63(2) or (4) to do the act or thing required by the earlier requirement; and

                             (ii)  if the earlier requirement was to do an act described in paragraph 63(2)(a)—a later requirement to do an act described in paragraph 63(4)(c); and

                     (d)  a favourable determination is made under section 85 resuming payment of social security payment to the person.

             (3)  The favourable determination takes effect, or is taken to have taken effect:

                     (a)  when the person met the condition in paragraph (2)(c); or

                     (b)  if the Secretary is satisfied that the person had a reasonable excuse for not complying with the earlier requirement—on the day on which the person was required by the earlier requirement to do the act or thing concerned.

21  Section 123TA

After:

     (ga)     an officer or employee of a recognised State/Territory authority requires the person to be subject to the income management regime; or

insert:

     (gb)     there is a positive drug test for the person and the tester tells the Secretary that the person should be subject to the income management regime; or

22  Section 123UFAA (heading)

Repeal the heading, substitute:

123UFAA   Persons subject to the income management regime—other State/Territory referrals, or positive drug tests

23  At the end of paragraph 123UFAA(1)(g)

Add “or subsection (1A) of this section”.

24  After subsection 123UFAA(1)

Insert:

          (1A)  For the purposes of this Part, a person is subject to the income management regime at a particular time (the test time ) if:

                     (a)  at the test time, the person is an eligible recipient of a category H welfare payment; and

                     (b)  before the test time, there was a positive drug test for the person; and

                     (c)  in the 24 months, or longer period (if any) determined under subsection (1B), before the test time, the contractor who carried out the test gave the Secretary a written notice saying that the person should be subject to the income management regime under this subsection; and

                     (d)  at the test time, the notice has not been withdrawn or revoked; and

                     (e)  at the test time, the person is not covered by a determination under subsection (1C); and

                      (f)  if, at the test time, the person has a Part 3B payment nominee—the Part 3B payment nominee is not an excluded Part 3B payment nominee; and

                     (g)  at the test time, the person is not subject to the income management regime under section 123UC, 123UD, 123UE or 123UF or subsection (1) of this section.

          (1B)  The Secretary may, by legislative instrument, determine a period longer than 24 months for the purposes of paragraph (1A)(c).

          (1C)  The Secretary must determine that a person is not subject to the income management regime under subsection (1A) if the Secretary is satisfied that being subject to the regime under that subsection poses a serious risk to the person’s mental, physical or emotional wellbeing.

          (1D)  The Secretary is not required to inquire into whether a person being subject to the income management regime under subsection (1A) poses a serious risk to the person’s mental, physical or emotional wellbeing.

25  At the end of paragraph 123UFAA(2)(c)

Add “or (1A)”.

26  Subdivision DAA of Division 5 of Part 3B (heading)

Repeal the heading, substitute:

Subdivision DAA Other State/Territory referrals, or positive drug tests

27  At the end of subsections 123XPAA(4) and 123XPAB(4)

Add:

           ; (d)  persons having positive drug tests.

28  Subclause 1(1) of Schedule 1

Insert:

potential drug test trial pool member : a person is a potential drug test trial pool member at a time if:

                     (a)  that time is in the drug test trial period; and

                     (b)  the person has, before that time and in the drug test trial period, made:

                              (i)  a claim for newstart allowance; or

                             (ii)  a claim for youth allowance that is not based on the person being a new apprentice or undertaking full-time study; and

                     (c)  at that time the claim has not been determined; and

                     (d)  when the claim was made, the person’s usual place of residence was in a drug test trial area.

29  Subparagraph 15(b)(i) of Schedule 2

After “subsection 63(4)”, insert “except paragraph 63(4)(c)”.

Division 2—Consequential amendments

Farm Household Support Act 2014

30  After paragraph 94(n)

Insert:

                   (na)  Part 3.16C (drug test repayment deductions);

31  Section 95 (after table item 1)

Insert:

1A

paragraph (c) of the definition of drug test trial pool member in subsection 23(1)

the words “(other than farm household allowance)” were inserted after “newstart allowance” and after “youth allowance”.

32  Section 99 (after table item 13)

Insert:

13A

paragraph (b) of the definition of potential drug test trial pool member in subclause 1(1) of Schedule 1

the words “(other than farm household allowance)” were inserted after “newstart allowance” and after “youth allowance”.

Part 2 Amendments with contingent commencements

Division 1—Amendments relating to jobseeker payment

Farm Household Support Act 2014

33  Section 95 (table item 1A)

Omit “newstart allowance”, substitute “jobseeker payment”.

34  Section 99 (table item 13A)

Omit “newstart allowance”, substitute “jobseeker payment”.

Social Security Act 1991

35  Subsection 23(1) (subparagraph (c)(i) of the definition of drug test trial pool member )

Omit “newstart allowance”, substitute “jobseeker payment”.

36  Subsection 606(1AA)

Omit “Newstart”, substitute “Jobseeker”.

37  Section 623C

Omit “newstart allowance”, substitute “jobseeker payment”.

38  Section 623C

Omit “the allowance”, substitute “the payment”.

39  Subsection 1206XA(1)

Omit “newstart allowance”, substitute “jobseeker payment”.

40  Paragraph 1206XB(1)(a)

Omit “newstart allowance”, substitute “jobseeker payment”.

41  Section 1206XE

Omit “newstart allowance”, substitute “jobseeker payment”.

Social Security (Administration) Act 1999

42  Subsection 37(7A)

Omit “newstart allowance”, substitute “jobseeker payment”.

43  Subclause 1(1) of Schedule 1 (subparagraph (b)(i) of the definition of potential drug test trial pool member )

Omit “newstart allowance”, substitute “jobseeker payment”.

44  Transitional provisions

Drug test refusal waiting periods

(1)       If, immediately before the commencement of this item, a person was subject to a drug test refusal waiting period under section 623C of the Social Security Act 1991 in relation to newstart allowance, then, on and after that commencement, the person is taken to be subject to that period in relation to jobseeker payment.

Drug test repayment deficits

(2)       If, immediately before the commencement of this item, a person had a drug test repayment deficit, then, on and after that commencement, section 1206XA of the Social Security Act 1991 applies in relation to that person as if a reference in subsection (2) of that section to a social security benefit included a reference to newstart allowance.

Division 2—Amendments relating to targeted compliance framework

Social Security (Administration) Act 1999

45  Paragraph 42AC(1)(a)

Repeal the paragraph, substitute:

                     (a)  the person fails to comply with a requirement that was notified to the person under subsection 63(2) or (4), except:

                              (i)  a requirement notified under subsection 63(2) in relation to which it is reasonable to expect that, if the person were to comply with the requirement, the person would be required to do an act described in paragraph 63(4)(c); or

                             (ii)  a requirement to do an act described in paragraph 63(4)(c);

46  Subparagraph 42AC(1)(c)(i)

After “subsection 63(2)”, insert “(except a notice containing a requirement described in subparagraph (a)(i) of this subsection)”.

47  Subsection 42AC(1) (note)

After “Note”, insert “1”.

48  At the end of subsection 42AC(1)

Add:

Note 2:       Paragraphs (1)(a) and (c)—paragraph 63(4)(c) relates to requirements for drug test trial pool members.