Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Reform of Employment Services Bill 1996 [1998]

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

1996

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

REFORM OF EMPLOYMENT SERVICES BILL 1996

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment, Education, Training and Youth Affairs, Senator the Hon Amanda Vanstone)

 

 

 

79976 Cat. No. 96 5656 1 ISBN 0644 480815



REFORM OF EMPLOYMENT SERVICES BILL 1996

 

 

OUTLINE

 

The aim of this Bill is to provide more effective employment services for job seekers.  This will be achieved by establishing mechanisms to deliver employment services and by establishing a fully competitive market for employment assistance.  Employment services providers will focus on achieving real job outcomes for unemployed job seekers.

 

The Bill is one of three Bills which will provide the statutory framework for implementing the Government’s reforms to employment services.  The Reform of Employment Services (Consequential Provisions) Bill 1996 being introduced with this Bill and the Commonwealth Services Delivery Agency Bill 1996, to be introduced by my colleague the Minister for Social Security, complete the package of legislation.

 

The Bill would enable the Commonwealth to contract private, community and public sector entities to provide employment services to job seekers.  “Employment services” is defined to mean unemployment benefits within the meaning of paragraph 51(xxiiiA) of the Constitution.  These services will include labour exchange, job search assistance and entry level training support services.  Special or intensive employment services, to be known as “employment assistance” will be provided to eligible persons by employment placement enterprises contracted by the Commonwealth.  It is intended that providers of employment services will deliver flexible, client-driven assistance based on outcomes.

 

The public provider of employment services will be the Public Employment Placement Enterprise which is to be a company under the Corporations Law , wholly owned by the Commonwealth.

 

The Commonwealth services delivery agency (“the Agency”), proposed to be established within the Social Security portfolio, will provide services to job seekers including registration, assessment and, as appropriate, referral to employment placement enterprises for employment assistance.  Self help assistance will be available to all job seekers at the Agency.

 

The Bill sets out the requirements for participation in the employment assistance scheme.  Much of the machinery to achieve the reforms is not new.  It is built on previous arrangements which worked well - in particular individualised one-to-one assistance for disadvantaged job seekers.  The referral procedures in this legislation for employment assistance are similar to current referral procedures for case management under the Employment Services Act 1994 , although the new procedures have been refined and streamlined.  Eligibility for employment assistance will be confined to those registered as unemployed with the Agency, or in receipt of employment services from the Commonwealth.  A Ministerial determination will set out the eligibility criteria for employment assistance.

 

Employment assistance is aimed at enabling a participant to get a job or improving their job prospects.  Employment assistance will be provided to participants referred to employment placement enterprises for assistance by the Agency.  As employment assistance is the most expensive employment service, not all job seekers who are eligible for employment assistance will become participants

 

Participants in the employment assistance scheme would be required to negotiate and enter into an Employment Assistance Activity Agreement (EAAA) with the employment placement enterprise providing their employment assistance.  The EAAA will set out activities aimed at getting the participant a job or improving their job prospects.  The EAAA replaces any Newstart Activity Agreement or Youth Training Activity Agreement that the person had under the Social Security Act 1991 or the Student and Youth Assistance Act 1973 , respectively.  If a participant in receipt of a Newstart Allowance or a Youth Training Allowance fails to enter into or comply with an EAAA without a reasonable excuse, the person could lose his or her allowance for some period of time.

 

The Bill would also provide for the normal protections and accountability mechanisms for the Government, service providers and job seekers.  These include information gathering powers both for the purpose of ensuring compliance with contractual arrangements and for more general monitoring and evaluation; the means to ensure the confidentiality of information concerning users of employment services; and mechanisms to investigate a complaint about the provision of employment services by the Agency or an employment services provider.  There would also be access to review of decisions relating to the assessment and referral for employment assistance, including access to appeal to the Social Security Appeals Tribunal and the Administrative Appeals Tribunal.

 

 

PURPOSE OF THE BILL

 

The Ministerial Statement Reforming Employment Assistance outlined the Government’s vision for the most radical changes to employment services since the establishment of the Commonwealth Employment Service in 1946.  Since the release of that Statement, the Government has undertaken extensive consultations about the Government’s proposals with interested groups in the community across Australia.

 

The proposed package of legislation will provide the statutory framework for implementing the Government’s reforms to employment services.  The package includes:

 

·       this Bill;

·       the Reform of Employment Services (Consequential Provisions) Bill 1996; and

·       the Commonwealth Services Delivery Agency Bill 1996 to be introduced by the Minister for Social Security.



 

This package of legislation would provide for reforming employment services in a way which is largely consistent with the feedback received from the community.  At the same time the reforms remain true to the Government’s belief that labour market services must be made more effective by focussing clearly on real job outcomes and opening up the employment placement market to the discipline of competition.

 

 

Aims of the legislation

 

The aim of this legislation is to establish the mechanisms to deliver employment services and to establish a fully competitive market for employment assistance to job seekers.  In particular, this Bill would:

 

·       enable the Commonwealth to engage entities to provide employment services;

·       define the criteria for participation in the “employment assistance scheme”;

·       provide for the procedures for referring participants in the employment assistance scheme to employment placement enterprises (or EPEs);

·       outline compliance requirements of job seekers under the Bill;

·       allow for the investigation of complaints about the provision of employment services;

·       provide for the review of decisions relating to participation in the employment assistance scheme and referrals to employment placement enterprises; and

·       include provisions to ensure the confidentiality of information concerning users of employment services.  

 

These provisions, together with the provisions in the other Bills in the legislative framework, would enable the implementation of the Government’s reforms to employment services.  Specifically:

 

·       the Commonwealth Services Delivery Agency Bill 1996 would establish and provide for the management and activities of the Agency as a provider of integrated Government services - social security and employment services in the first instance; and 

·       the Reform of Employment Services (Consequential Provisions) Bill 1996 would cover other matters required for the implementation of the Government’s reforms.

 

Provision of employment services

 

The Bill would provide for the provision of “employment services”.  “Employment services” means unemployment benefits within the meaning of the Constitution.  Unemployment benefits in the form of money allowances will continue to be paid under the Social Security Act 1991 .  This Bill would, in the main, provide for non-monetary assistance.  This assistance would include:



 

·       self help assistance;

·       labour exchange;

·       job search assistance;

·       employment assistance; and

·       entry level training support services.

 

Self help assistance would be available at the Agency to all job seekers.  It will include access to:  job vacancy displays, other employment and training information and facilities such as computers and telephones.

 

In labour exchange services, employment services providers would canvass employers for job vacancies to be placed on the National Vacancy Data Base.   Employment services providers will also match, refer and place eligible job seekers into vacancies on the Data Base.

 

Job search assistance would involve employment services providers delivering the sort of assistance currently provided by job clubs, such as training job seekers in effective job search techniques and providing access to facilities for intensive supported job search.

 

Employment assistance would be the most intensive form of assistance and would be similar to, but more flexible than, the current case management system.  This form of assistance would be provided to eligible persons by employment placement enterprises engaged by the Commonwealth.

 

Entry level training support services are those services (except labour exchange) which would be provided to eligible job seekers to assist them into a traineeship or an apprenticeship.  These services would be provided by employment services providers or other contracted agencies.

 

The legislation would enable the Agency to enter into an agreement with the Employment Secretary in connection with employment services.  Under this agreement, and an agreement with the Social Security Secretary, the Agency would:

 

·       register, assess and refer job seekers to further assistance;

·       provide job seekers with self help job search facilities; and

·       activity test job seekers and apply deferment period provisions under the Social Security Act 1991 .

 

 

Competitive employment services market

 

The legislation would enable the Employment Secretary, on behalf of the Commonwealth, to contract entities to provide employment services (including the special or intensive “employment assistance” which is to be provided by employment placement enterprises).  In line with the Government’s requirement for competitive neutrality in the employment services market, the legislation would not distinguish between private and community providers and the Public Employment Placement Enterprise.

 

 

Employment assistance

 

Special or intensive employment services, to be known as “employment assistance” would be provided to eligible persons by employment placement enterprises (or EPEs) contracted by the Commonwealth.

 

Employment assistance is to be based on an assessment of personal need.  Its aim is to enable the person to gain employment or improve the person’s employment prospects.  The legislation would provide for the Minister for Employment, Education, Training and Youth Affairs to make written determinations to specify what sorts of assistance EPEs should provide to participants.  Assistance may involve training, job search assistance, wage subsidies or other innovative and flexible forms of assistance.  EPEs will be free to decide with the participant the optimal kinds and mix of assistance needed to get the participant a job.  Participants will generally receive employment assistance for 12 months.

 

The legislation would also provide for the Minister for Employment, Education, Training and Youth Affairs to make a written determination specifying what matters the Employment Secretary should take into account when engaging employment placement enterprises to provide employment assistance and the procedures which the Employment Secretary should follow when so deciding.

 

Under the legislation, EPEs could not charge participants for providing them with employment assistance.  This does not preclude EPEs from charging non-participants for similar services.  This may provide an additional revenue source for EPEs.

 

The Agency would be responsible, on behalf of the Employment Secretary, for deciding which job seekers will be participants in the employment assistance scheme.

 

The legislation would define the broad eligibility criteria for employment assistance as being:

 

·       registered as unemployed (this will be with the Agency); or

·       in receipt of employment services from the Commonwealth.

 

The Ministerial Statement indicated that (intensive) employment assistance eligibility should be confined to job seekers who have been unemployed for 12 months or more or are assessed as at high risk of long-term unemployment, and who are:

 

·       a recipient of a qualifying DSS income support allowance (Newstart Allowance, Youth Training Allowance, Sole Parent Pension, Disability Support Pension and other forms of DSS income support but excluding Age Pension and Mature Age Allowance); or

·       a participant in a Community Development Employment Project; or

·       an unemployed young person aged 15 to 20 years and not in receipt of income support.

 

The legislation would provide for the Minister for Employment, Education, Training and Youth Affairs to make a written determination specifying eligibility criteria for employment assistance.  This determination is likely to include the criteria listed above. 

 

As well, the Minister may include in this determination events or circumstances which disqualify people from employment assistance eligibility.  The determination may also include matters to be taken into account by the Agency, on behalf of the Employment Secretary, when determining a person is not eligible for employment assistance. 

 

Referral to employment assistance

 

Because employment assistance is the most costly employment service, the Government is concerned that places be directed to those job seekers who are most in need and who have capacity to benefit from the assistance.  For this reason, the legislation would provide for discretion on the part of the Agency, on behalf of the Employment Secretary, to ration the flow of people eligible for employment assistance into employment assistance participation .  Eligibility for employment assistance will not imply automatic or immediate access to this assistance. 

 

The referral process for employment assistance that would be provided for in the legislation is as follows (staff of the Agency would be acting under authority delegated by the Employment Secretary):

 

Depending on available employment assistance places, the Agency will notify in writing some job seekers who are eligible for employment assistance (or who are likely to become eligible) to attend an interview.  Generally this interview will be with the Agency.  However, the Agency may nominate another person to conduct the interview.  This could be, for example, if the Agency considers that the person should have a professional assessment of barriers to employment entry.  If the Agency considers that the person could reasonably be referred to an EPE for employment assistance, the person must be notified in writing that he or she is now a participant in the employment assistance scheme and should choose an EPE.  Whether a person could reasonably be referred to an EPE will often depend upon whether there are sufficient employment assistance places available.

 

To ensure that participants are fully aware of their rights and obligations, the legislation would provide that the participant must be given written information about the employment assistance scheme and informed that he or she will be required to enter into an Employment Assistance Activity Agreement (EAAA).

 

·         The EAAA is an agreement negotiated between the participant and the EPE setting out a programme of activities aimed at getting the participant a job.

 

The circumstances under which a person ceases to be a participant would be specified in a Ministerial Determination.  These circumstances are expected to include the person:

 

·       obtaining full-time employment for 26 weeks or more;

·         having been assessed as having no capacity to benefit from employment assistance; or

·       failing to enter into or comply with their EAAA without a reasonable excuse.

 

If a job seeker is in receipt of Newstart Allowance or Youth Training Allowance and fails to attend an interview without a reasonable excuse, he or she may lose qualification for allowance for a period.  This provision underlines the importance the Government attaches to job seekers taking advantage of the opportunity to participate in the employment assistance scheme. 

 

EPE choice

 

If there is more than one EPE to which a participant could reasonably be referred, the legislation would provide that the participant be given the opportunity to nominate the EPE he or she would prefer.  The Agency will refer the participant to his or her nominated EPE if it is reasonable to do so.  Otherwise, the Agency will nominate an EPE for that participant.  The Agency will also nominate an EPE for those clients who do not express a preference.

 

Employment Assistance Activity Agreements

 

The legislation would require participants to enter into an Employment Assistance Activity Agreement (EAAA) with the EPE providing their employment assistance.  As well as setting out activities aimed at getting the participant a job or improving their employment prospects (such as paid work experience or training), the EAAA will set out the rights and responsibilities of the EPE and job seeker and the timeframe for completing these activities.  The terms of the EAAA must take into account the participant’s capacity to comply with the agreement, such as their education and the state of the local labour market.

 

The legislation would require the participant to negotiate and comply with their EAAA.  For participants who are in receipt of Newstart Allowance or Youth Training Allowance (the majority of participants) the legislation provides that an EAAA will take the place of the Newstart Activity Agreement for the purposes of the Social Security Act 1991 and the Youth Training Activity Agreement in the Student and Youth Assistance Act 1973 .  For these participants, failure to enter into or comply with an EAAA without a reasonable excuse may result in the loss of allowance for some period of time.

 

The EAAA would provide the clear basis for any penalty imposed on the participant for non-compliance but it also protects a participant against any unreasonable demands by the EPE.

 

Officers in the Agency, acting in accordance with delegations under the Social Security Act 1991 , would be responsible for deciding whether to breach a participant in receipt of an unemployment allowance for failure to enter into an EAAA or for failure to comply with the EAAA, taking into account advice from the EPE.

 

Monitoring and information gathering powers

 

The legislation would provide for access by the Commonwealth to information to enable it to both monitor compliance with contractual arrangements and meet accountability requirements.  Because a wide ranging evaluation will be essential to assess the effectiveness of these comprehensive reforms, the legislation also enables the Commonwealth to access information for more general monitoring and evaluation purposes.  Monitoring and evaluation data will assist in the promulgation of best practice.  This will enable a more effective employment placement market to develop and facilitate the continuous improvement of employment services.

 

Advisory committees

 

The legislation would provide for the Minister to establish a national advisory committee to advise the Employment Secretary on the provision of employment services.  It would also provide for the establishment of regionally-based area committees which will advise the Employment Secretary on employment and training opportunities and increase the Department of Employment, Education, Training and Youth Affair’s responsiveness to regional labour markets.  The establishment of area committees would also facilitate links between the Department’s programmes and regional development.

 

Other provisions

 

The other provisions in the Bill provide for protections and accountability mechanisms for the Government, service providers and job seekers that would be expected in such legislation.

 

These provisions include:

·       the means to ensure the confidentiality of information concerning users of employment services;

·       mechanisms within the Department of Employment, Education, Training and Youth Affairs to investigate a complaint about the provision of employment services; and

·       access to review of decisions relating to the assessment and referral for employment assistance, including access to appeal to the Social Security Appeals Tribunal and the Administrative Appeals Tribunal.

 

 

FINANCIAL IMPACT

 

Of itself this Bill would have no financial impact.  However it does provide the framework under which the Commonwealth will spend in the order of one billion dollars each year once the employment placement market is fully operational.

 

 

 



NOTES ON CLAUSES

 

 

PART 1 - PRELIMINARY

 

Clause 1 - Short title

 

This clause would set out the short title of the proposed Act.

 

Clause 2 - Commencement

 

This clause would provide that the proposed Act would commence on 1 December 1997

 

Clause 3 - Objects

 

This clause would set out the objects of this Act.

 

The objects are:

 

·       to establish mechanisms to deliver employment services (including employment assistance);

·       to permit the establishment of a competitive market for the provision of employment services (including employment assistance); and

·       to provide for flexibility in the forms of employment services available (including employment assistance).

 

Clause 4 - Simplified outline

 

This clause would set out a simplified outline of the provisions of the Act.

 

Clause 5 - Definitions

 

This clause would set out the definitions of terms used in the Act.  Some of the more important definitions are discussed below.

 

“Agency” means the Agency established by the Commonwealth Services Delivery Agency Act 1996 .

 

“eligible person” means a person who, under a disallowable instrument made under section 17, is eligible to be considered for referral to an employment placement enterprise for the provision of employment assistance.

 

“employment assistance” has the meaning given by section 10.

 

“employment placement enterprise” means an entity engaged by the Commonwealth to provide employment assistance.

 

employment services ” means unemployment benefits within the meaning of paragraph 51(xxiiiA) of the Constitution and includes employment assistance.

 

The definition of “entity” would set out a wide range of bodies which could be accredited as employment placement enterprises under the Act.  The entities concerned include individuals, bodies corporate, partnerships, unincorporated associations, government authorities and government departments.  This wide definition has been included to give the Commonwealth the scope to involve a wide range of bodies in the provision of employment services.

 

“participant” has the meaning given by section 27, which deals with the referral of eligible persons to employment placement enterprises for the provision of employment assistance.

 

Clause 6 - Documents

 

This clause would provide a definition of the term “document” for the purposes of the Act.

 

Clause 7 - Act binds the Crown

 

This clause binds the Crown in the right of the Commonwealth, the States, the Australian Capital Territory and the Northern Territory.

 

The Crown would not be liable to be prosecuted for an offence.

 



 

PART 2 - PROVISION OF EMPLOYMENT SERVICES

 

 

Division 1 - Simplified Outline

 

Clause 8 - Simplified outline

 

This clause would set out a simplified outline of the provisions of this Part.

 

 

Division 2 - Employment Services Agreements

 

Clause 9 - Commonwealth may engage entities to provide employment services

 

Subclause (1) would provide that the Employment Secretary may, on behalf of the Commonwealth, engage an entity to provide employment services.

 

Subclause (2) would be to the effect the terms and conditions of engagement of an entity must be set out in a written agreement.

 

Clause 10 - Engagement of employment placement enterprise to provide employment assistance

 

Subclause (1) would provide that an employment services agreement may involve the engagement of an employment placement enterprise to provide employment assistance.

 

Subclause (2) would provide that the basic definition of employment assistance is that it consists of assistance to a person that:

 

·         is based on an assessment of the person’s individual circumstances; and

·         is aimed either at enabling the person to gain employment or at improving the person’s prospects of gaining employment.

 

The clause would also give the Minister the power to determine that provision of specified services is, or is not, part of the provision of employment assistance.  This will give the Minister the ability to more precisely specify what is involved in the provision of employment assistance.

 

A determination made by the Minister for this purpose would be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .  Accordingly, it must be published in the Gazette , tabled in the Parliament and would be subject to Parliamentary disallowance.

 

Clause 11 - Factors in Commonwealth’s decision to engage employment placement enterprise

 

This clause would provide that the Minister may make a written determination specifying:

 

·         the matters to be taken into account by the Employment Secretary in deciding to engage an employment placement enterprise; and

·         the procedures to be followed in relation to the decision and engagement.

 

The clause provides for the Minister to have an ability to determine the nature of the selection process for the engagement of employment placement enterprises and considerations that are relevant to that selection process.

 

A determination made by the Minister for this purpose would be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .  Accordingly, it must be published in the Gazette , tabled in the Parliament and would be subject to Parliamentary disallowance.

 

Clause 12 - Conditions of employment assistance agreements

 

Subclause (2) would provide that, as a condition of its engagement to provide employment assistance, an employment placement enterprise may not charge fees, or similar consideration, to participants referred for the provision of such assistance.

 

Subclause (3) would provide that it is also a condition of engagement that the employment placement enterprise must comply with notices under clause 46 to provide information about compliance with Employment Assistance Activity Agreements.

 

Clause 13 - Kinds of agreement

 

Clause 13 would make it clear that any agreement under this part is to be known as an “employment services agreement” .  An employment services agreement may also be or include an “employment assistance agreement” (which is an agreement by which an employment placement enterprise undertakes to provide employment assistance to participants referred to it under Part 3).

 

Agreements under this Part would be required to contain a specific statement that they are an employment services agreement and/or an employment assistance agreement.

 

Clause 14 - Operation of certain State and Territory laws

 

Certain State and Territory laws relating to the regulation of private employment agencies have a potential to impact upon the provision of employment services under the proposed Act.

 

This clause would provide that prescribed State or Territory enactments would not:

 

·         render an employment services agreement unenforceable;

·         prevent an entity discharging obligations under an employment services agreement to which the entity is a party or subject an entity to a penalty by reason only that the entity has discharged such obligations; or

·         apply to or in relation to conduct of the entity if such conduct is required or authorised by the Act or regulations or an employment services agreement to which the entity is a party.

 

 

Division 3 - Administrative arrangements

 

Clause 15 - Arrangements between the Employment Secretary and the Agency

 

This clause would provide that the Employment Secretary may enter into service arrangements with the Chief Executive Officer of the Agency in connection with the provision of employment services.

 

 

PART 3 - PROVISION OF EMPLOYMENT ASSISTANCE

 

 

Division 1 - Simplified outline

 

Clause 16 - Simplified outline

 

This clause would provide a simplified outline of the provisions of this Part.

 

 

Division 2 - Determination of eligible persons

 

Clause 17 - Person may become an eligible person

 

Persons would become eligible persons if they are within a class of persons specified in a Ministerial determination, and are either registered as unemployed with the Employment Secretary or are being provided with employment services.

 

Subclause (2) would provide that a determination may also specify:

 

·         the events or circumstances that are disqualifying events for the purposes of this Act; and

·         matters to be taken into account by the Employment Secretary for the purposes of making a decision under clause ^25 (which deals with decisions, following an interview, that a person is no longer an eligible person).

 

A determination made by the Minister would be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .  Accordingly, it must be published in the Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

It is intended that such a Ministerial determination would at least include the following classes of persons:

 

·         jobseekers who have been unemployed for 12 months or more; or

·         persons at risk of becoming long-term unemployed;

 

and who fall into one of the following eligibility categories:

 

·         a recipient of DSS income support allowance (including unemployment benefit, sole parent pension, and disability support pension);

·         a participant in the Community Development Employment Programme; or

·         an unemployed person 15 -20 years old and not in receipt of income support.

 

Subclause (4) would provide that the Employment Secretary, in special circumstances, may specify that a person registered with the Employment Secretary or being provided with unemployment benefits is to be a participant in the employment placement enterprise system.

 

Clause 18 - Section 17 determination not to apply to certain persons

 

A determination by the Minister under subclause 17(1) would not have effect if determination is made under clause 23 that a person is not to become an eligible person.

 

Clause 19 - Person may cease to be an eligible person

 

This clause would provide that a person remains an eligible person until a disqualifying event happens in relation to the person.

 

 

Division 3 - Determination of participants

 

Clause 20 - Person who is expected to be eligible person may be interviewed

 

Subclause (1) would provide that, if the Employment Secretary forms the opinion that it is reasonably likely that a person will become an eligible person, then that person may be notified (in writing or otherwise) of that opinion and that the person may be considered for referral to an employment placement enterprise.

 

Subclause (2) would provide that the Employment Secretary may then do either or both of the following:

 

·         ask the person to attend or take part in an interview with the Agency; or

·         ask the person to attend an interview with a person nominated by the Employment Secretary.

 

The notices under subclause (1) may be in writing.  The rules in sections 28A and 29 of the Acts Interpretation Act 1901 would apply to such notifications.

 

Clause 21 - Eligible persons may be interviewed

 

Subclause (1) would provide that:

 

·         if a person has become an eligible person; and

·         since becoming an eligible person, has not been referred to an employment placement enterprise,

 

then the Employment Secretary may give the person a notice that they have become an eligible person and may be considered for referral to an employment placement enterprise for employment assistance.

 

Subclause (2) would provide that the Employment Secretary may then do either or both of the following:

 

·         ask the person to attend or take part in an interview with the Agency; or

·         ask the person to attend an interview with a person nominated by the Employment Secretary.

 

The notices under subclause (1) may be in writing.  The rules in sections 28A and 29 of the Acts Interpretation Act 1901 would apply to such notifications. 

 

Subclause (3) would provide that a person may be interviewed more than once and subclause (4) would provide that a person who has failed to attend an interview may be asked to attend another interview.

 

Clause 22 - Consequences of failure to attend interview

 

Section 630C of the Social Security Act 1991 and section 114 of the Student and Youth Assistance Act 1973 would provide a mechanism to require a person to attend, contact or give information to the Agency or the Department of Social Security.  Non-compliance with such a requirement could result in a deferment period applying to the person's newstart allowance or youth training allowance.

 

This clause would provide that these mechanisms under the Social Security Act 1991 or the Student and Youth Assistance Act 1973 , as the case may be, apply in relation to a similar failure to comply with a request under subclauses 20(2) or 21(2) of this Act.  Note that subsection 630C(3) of the Social Security Act 1991 and subsection 114(2) of the Student and Youth Assistance Act 1973 , which make the allowance payable if the Secretary is satisfied that the person had a reasonable excuse for not complying would also apply to a requirement under subclauses 20(2) or 21(2) of this Act.

 

Clause 23 - Determination that person not to become eligible person

 

If a person has attended an interview under clause 20, the Employment Secretary may make a written determination that a person is not to become an eligible person.  In doing so the Employment Secretary must take into account any matters in a determination made by the Minister under clause 17.

 

 

 

 

Clause 24 - Person to be notified.

 

If the Employment Secretary makes a determination under clause 23, the person must be given written notice of that determination.

 

The notices under this clause must be in writing.  The rules in sections 28A and 29 of the Acts Interpretation Act 1901 would apply to such notifications.

 

Clause 25 - Determination that person is no longer eligible person

 

If a person has attended an interview under clauses 20 or 21 then the Employment Secretary may make a written determination that the person is no longer an eligible person.  In making such a determination, the Employment Secretary must take into account any matters specified in a determination made by the Minister under clause 17.

 

Clause 26 - Person to be notified

 

If the Employment Secretary makes a determination under clause 25, the person must be given written notice of that determination.

 

The notices under this clause must be in writing.  The rules in sections 28A and 29 of the Acts Interpretation Act 1901 would apply to such notifications. 

 

Clause 27 - Person may become participant

 

This clause would provide that the Employment Secretary may make a written determination that a person is a participant in the employment assistance scheme if:

 

·         the person who has attended or taken part in an interview under either clause 20 or clause 21;

·         the person is an eligible person; and

·         the Employment Secretary considers that the person could reasonably be referred to an employment placement enterprise.

 

Matters which will affect whether or not a person could reasonably be referred to an employment placement enterprise include the availability of suitable enterprises in the area and the number of other eligible persons which may be considered for referral.

 

 

Clause 28 - Person may cease to be a participant - Employment Secretary determination

 

This clause would provide that the Employment Secretary may determine that a person is no longer a participant if it is later considered that the person could not reasonably be referred to an employment placement enterprise.  Such a determination would be a terminating event for the purposes of clause 29.

 

 

 

 

Clause 29 - Person may cease to be a participant - general

 

Subclause (1) would provide that a person remains a participant until a terminating event happens.

 

Subclause (2) would provide that the Minister may make a written determination that a specific event or circumstance is a terminating event.

 

A determination made by the Minister would be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .  Accordingly, it must be published in the Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

Clause 30 - Person who becomes participant to be notified and given information

 

Subclause (1) would provide that, if the Employment Secretary makes a determination under clause 27 that a person is a participant in the employment assistance scheme, then the Employment Secretary must give the person written notice of that determination.

 

Subclause (2) would provide that the written notice must:

 

·         give the person such information about the employment assistance schema as the Employment Secretary approves in writing;

·         inform the person that the Employment Secretary proposes to refer the person to an employment placement enterprise; and

·         that upon referral, the person will be required to enter into an Employment Assistance Activity Agreement (see clause 38).

 

Notices under subclause (1) must be in writing so that the rules in sections 28A and 29 of the Acts Interpretation Act 1901 apply to such notifications.

 

Clause 31 - Person may be asked to nominate employment placement enterprise

 

This clause would provide that, if the person could reasonably be referred to one of a number of employment placement enterprises, then the Employment Secretary must, in the notice referred to in clause 30, ask the person to nominate an employment placement enterprise from among that number.  The person is to be given up to 5 business days to make such nomination.

 

Clause 32 - Referral to employment placement enterprise

 

Subclause (1) would provide that if:

 

·         a notice under clause 30 asks a person to nominate an employment placement enterprise; and

·         the Employment Secretary receives a written nomination within 5 business days; and

·         the Employment Secretary considers that the person could reasonably be referred to the nominated employment placement enterprise,

 

then the Employment Secretary must decide to refer the person to the nominated enterprise.

 

Subclause (2) would provide that if:

 

·         a person fails or declines within 5 business days to nominate a preferred employment placement enterprise; and

·         the Employment Secretary considers that the person could reasonably be referred to the nominated employment placement enterprise,

 

then the Employment Secretary must decide to refer the person to an enterprise nominated by the Employment Secretary.

 

Subclause (3) would provide that if there is only one employment placement enterprise  to which a person could reasonably be referred, the Employment Secretary must decide to refer the person to that enterprise.

 

Clause 33 - Termination of referrals

 

Subclauses (1) and (2) would provide for the Employment Secretary to terminate the referral of a participant to an employment placement enterprise.  It is proposed for this to generally occur when the provision of employment placement enterprise services by an enterprise to a participant has effectively ceased, eg. that the employment placement enterprise goes out of business or the relationship between the employment placement enterprise and the participant breaks down. 

 

Subclause (3) would require the CES to give the participant notice in writing of a decision to terminate the referral.  Under subclause (4), the decision would take effect when the notice is given.

 

Subclause (5) would require, if the Employment Secretary is of the opinion that the participant could be referred to another employment placement enterprise, the notice of termination of referral is to state either, that the Employment Secretary proposes to refer the participant to another employment placement enterprise and, if a choice is available, that the participant may nominate a enterprise from a number of enterprises within 5 business days, or that the person must attend an interview with the Agency or a person nominated by the Employment Secretary.

 

Subclause (6) would allow the Employment Secretary to make a further request if a person does not take part in an interview as previously requested.

 

Clause 34 - Consequences of failure to attend interview

 

Section 630C of the Social Security Act 1991 and section 114 of the Student and Youth Assistance Act 1973 would provide a mechanism to require a person to attend, contact or give information to the Agency or the Department of Social Security.  Non-compliance with such a requirement could result in a deferment period applying to the person's newstart allowance or youth training allowance.

 

This clause would provide that these mechanisms under the Social Security Act 1991 or the Student and Youth Assistance Act 1973 , as the case may be, apply in relation to a similar failure to comply with a request under subclauses 33(5) or (6) of this Bill.  Note that subsection 630C(3) of the Social Security Act 1991 and subsection 114(2) of the Student and Youth Assistance Act 1973 , which make the allowance payable if the Secretary is satisfied that the person had a reasonable excuse for not complying would also apply to a requirement under subclauses 33(5) or (6) of this Bill.

 

The proposed provision would be similar in effect to clause 22.

 

Clause 35 - Referral to another employment placement enterprise - no interview

 

This clause would set out requirements for the referral to a new employment placement enterprise when the Employment Secretary does not propose to interview the participant but has given the participant a notice under paragraph 33(5)(a)

(ie notice of proposed referral to a new employment placement enterprise).

 

Subclause (2) would provide that if:

 

·         a notice under clause 33 asks a person to nominate an employment placement enterprise; and

·         the Employment Secretary receives a written nomination within 5 business days; and

·         the Employment Secretary considers that the person could reasonably be referred to the nominated employment placement enterprise,

 

then the Employment Secretary must decide to refer the person to the nominated enterprise.

 

Subclause (3) would provide that if:

 

·         a person fails or declines within 5 business days to nominate a preferred employment placement enterprise; and

·         the Employment Secretary considers that the person could reasonably be referred to an employment placement enterprise,

 

then the Employment Secretary must decide to refer the person to an enterprise nominated by the Employment Secretary.

 

Subclause (4) would provide that if there is only one employment placement enterprise  to which a person could reasonably be referred, the Employment Secretary must decide to refer the person to that enterprise.

 

 

 

 

Clause 36 - Referral to another employment placement enterprise - interview

 

This clause would set out requirements for the referral to a new employment placement enterprise when the Employment Secretary has, under clause 33, asked the person to attend an interview with the Agency or a person nominated by the Employment Secretary.

 

Subclause (2) would provide that if:

 

·         the person is asked before, at or after the interview, to nominate an employment placement enterprise to which he or she wishes to be referred; and

·         the Employment Secretary receives a written nomination within 5 business days; and

·         the Employment Secretary considers that the person could reasonably be referred to the nominated employment placement enterprise,

 

then the Employment Secretary must decide to refer the person to the nominated enterprise.

 

Subclause (3) would provide that if:

 

·         a person fails or declined within 5 business days to nominate a preferred employment placement enterprise; and

·         the Employment Secretary considers that the person could reasonably be referred to an employment placement enterprise,

 

then the Employment Secretary must decide to refer the person to an enterprise nominated by the Employment Secretary.

 

Subclause (4) would provide that if there is only one employment placement enterprise  to which a person could reasonably be referred, the Employment Secretary must decide to refer the person to that enterprise.

 

Clause 37 - Employment Secretary to notify participant and employment placement enterprise of decision to refer

 

This clause would require the Employment Secretary to notify the employment placement enterprise and the participant of a decision to refer a participant to the enterprise.  The notice must be given as soon as practicable after the date of the decision.

 

It is intended that the notice be in writing and that the rules in sections 28A and 29 of the Acts Interpretation Act 1901 apply to such notifications.

 

Clause 38 - Employment Secretary to notify participant and employment placement enterprise of decision to terminate referral

 

This clause would require the Employment Secretary to notify the employment placement enterprise and the participant of a decision to terminate the referral of a participant to the enterprise.  The notice must be given a soon as practicable after the date of the decision.

 

It is intended that the notice be in writing and that the rules in sections 28A and 29 of the Acts Interpretation Act 1901 apply to such notifications.

 

 

PART 4 - EMPLOYMENT ASSISTANCE ACTIVITY AGREEMENTS

 

 

Division 1 - Simplified outline

 

Clause 39 - Simplified outline

 

This clause would provide a simplified outline of the provisions of this Part.

 

 

Division 2 - Requirements relating to Employment Assistance Activity Agreements

 

Clause 40 - Person must enter Employment Assistance Activity Agreement

 

This clause would require a person who has been referred to an employment placement enterprise to enter into an Employment Assistance Activity Agreement with the enterprise.  These agreements are similar in form to, and are required in place of, the Newstart Activity Agreements required for allowees under Part 2.12 of the Social Security Act 1991 or Youth Training Activity Agreements required for allowees under Part 8 of the Student and Youth Assistance Act 1973 who have not been referred to employment placement enterprises.  The agreements perform the same function as the agreements in the Social Security Act 1991 and the Student and Youth Assistance Act 1973 in respect of the continued qualification for newstart allowance or youth training allowance, as the case may be.

 

Subclause (2) would require a written agreement between the person and his or her employment placement enterprise, which must be in a form jointly approved by the Employment Secretary and the Social Security Secretary.  The agreement is to be known as an “Employment Placement Activity Agreement”. 

 

Subclause (3) would place an obligation on the Employment Secretary to require a person without an Employment Placement Activity Agreement to enter into an agreement. 

 

Subclause (4) would make provision for the Employment Secretary to require a replacement agreement to be entered into. 

 

Subclause (5) would require the Employment Secretary to give written notice to the person concerning the requirement to enter into an agreement, and the place and times at which the agreement is to be negotiated.

 

It is intended that the notice be in writing and that the rules in sections 28A and 29 of the Acts Interpretation Act 1901 apply to such notifications.

 

Subclause (6) would allow the Employment Secretary to delegate his or her powers under subclauses (3), (4) and (5) to employment placement enterprises or their directors, officers or employees.

 

Subclause (7) would make it clear that a power delegated under subsection (6) is to be regarded as a function conferred on the employment placement enterprise under this Act.

 

Clause 41 - Terms of Employment Assistance Activity Agreement

 

This clause would describe the nature of the activities to be included in an Employment Assistance Activity Agreement.

 

Subclause (1) would provide that the agreement is to require the person to undertake activities that will, in the opinion of the Employment Secretary, enable the person to gain employment or improve the person’s prospects of gaining employment The Employment Secretary must approve the activities to be included in a person's agreement.

 

Subclause (2) would provide that, without limiting subclause (1), the activities may include:

 

·         a job search;

·         a training course;

·         paid work experience;

·         voluntary work; or

·         measures designed to eliminate or reduce any disadvantage the person has in the labour market.

 

Subclause (3) would enable an Employment Placement Activity Agreement to contain requirements for the person (on request or otherwise) to: attend an office of the Agency or the employment placement enterprise; contact the Agency or the enterprise; or provide information to the Agency or the enterprise.  Such requirements could, for example, be specified to be at particular intervals, where particular circumstances occur, or at the request of the employment placement enterprise.  Such requirements must be specified in the Agreement.  An agreement could contain one or more requirements under one or more of the paragraphs of the provision.

 

Subclause (4) would provide that the Employment Placement Activity Agreement may include terms requiring the person, on request or otherwise, to substantiate to his or her employment placement enterprise, their compliance with the terms of the Agreement.  An example might be a term which requires the person to show the enterprise a copy of 2 job applications the person has sent each week.

 

 

 

Clause 42 - Terms of Agreement to be approved by Employment Secretary

 

The Employment Secretary must approve the terms of an Employment Placement Activity Agreement, having regard to the person's capacity to comply with the proposed agreement and the person's needs.

 

Subclause (3) would set out the criteria which the Employment Secretary is to take into account when considering a person's capacity to comply with an agreement and the person's needs, ie:

 

·         the person’s education, experience, skills, age and physical condition;

·         the state of the labour market in the locality where the person resides;

·         the training opportunities available to the person; and

·         any other matters that the Employment Secretary considers relevant in the circumstances.

 

Subclause (4) would make provision for the Employment Secretary to delegate his or her powers under this section to employment placement enterprises or their directors, officers or employees. 

 

Subclause (5) would make it clear that a power delegated under subclause (4) is to be regarded as a function conferred on the enterprise under this Act.

 

Clause 43 - Cancellation or review etc. of Employment Assistance Activity Agreement

 

Subclause (1) would provide for the variation, suspension, cancellation or review of employment assistance activity agreements.

 

Subclause (2) would deem an Employment Assistance Activity Agreement to be cancelled when a person's referral to an employment placement enterprise is terminated under clause 32.

 

 

Division 3 - Relationship between Activity Agreements under this Act and other Acts

 

Clause 44 - Person to whom this Division applies

 

This clause would provide for the application of this Division to persons who are participants in the employment assistance scheme from the date the determination under clause 27 that they are a participant and ending on the date they cease to be a participant.

 

 

 

 

 

Clause 45 - Employment Assistance Activity Agreements to supersede Newstart Activity Agreements and Youth Training Activity Agreements

 

Subclause (1) would cancel the effect of any Newstart Activity Agreement or Youth Training Activity Agreement that a person was party to prior to the referral to an employment placement enterprise.

 

Subclause (2) would exempt a person from being required to enter into a Newstart Activity Agreement under the Social Security Act 1991 or a Youth Training Activity Agreement under the Student and Youth Assistance Act 1973 while that person is referred to the enterprise.

 

Clause 46 - Qualification for newstart allowance or youth training allowance

 

Subclause (1) would deem a person not to be qualified for a newstart allowance under the Social Security Act 1991 or a youth training allowance under the Student and Youth Assistance Act 1973 , as the case may be, unless:

 

·         when the person is required under clause 40 to enter into a Employment Assistance Activity Agreement in relation to the period, the person enters into that agreement; and

·         while the agreement is in force, the person satisfies the Secretary administering the Social Security Act 1991 and the relevant Part of the Student and Youth Assistance Act 1973 , that the person is taking reasonable steps to comply with the terms of the agreement; and

·         at all times during the period when the person is a party to the agreement, the person is prepared to enter into another such agreement instead of the existing agreement if required to do so under clause 38.

 

Subclause (2) would provide for what may be regarded as “reasonable steps” to comply with the terms of a Employment Assistance Activity Agreement.  A person would be regarded not to have taken reasonable steps to comply if the reason for the failure to comply was a matter within the person's control or was reasonably foreseeable by the person.

 

Clause 47 - Modification of Social Security Act

 

To enable a person who is a participant in the employment assistance scheme to be treated as unemployed for the purposes of the Social Security Act 1991 , subclause (1) would provide for a reference to a Newstart Activity Agreement in section 595 of the Social Security Act 1991 to be a reference to a Employment Assistance Activity Agreement for the purposes of that section.

 

Subclause (2) would provide that, during a person’s participation in the employment assistance scheme, a reference in section 601of the Social Security Act 1991 to a Newstart Activity Agreement is taken to be a reference to an Employment Assistance Activity Agreement.  This means that a person will satisfy the activity test if they are taking reasonable steps to comply with the terms of an Employment Assistance Activity Agreement and that they will not satisfy the activity test if they are not taking reasonable steps to comply with the agreement.

 

Section 607 of the Social Security Act 1991 deals with the failure of a person to negotiate a Newstart Activity Agreement.  Subclause (3) would apply that section to a failure to negotiate an Employment Assistance Activity Agreement under this Act.

 

Sections 625 and 626 of the Social Security Act 1991 set out deferment periods that apply where a newstart allowee fails to enter into an activity agreement or does not comply with an activity agreement.  Subclause (4) would apply these sections of the Social Security Act 1991 (and the related section 608) in a similar way to allowees who have an Employment Assistance Activity Agreement under this Act.

 

Subsection 613(2) of the Social Security Act 1991 provides exemptions to a general rule that newstart allowance is not payable to full time students.  One of those exemptions applies to courses undertaken under a Newstart Activity Agreement.  Subclause (4) would also extend the exemption to courses undertaken under an Employment Assistance Activity Agreement.

 

Clause 48 - Modification of Student and Youth Assistance Act

 

To enable a person who is a participant in the employment assistance scheme to be treated as unemployed for the purposes of the Social Security Act 1991 , subclause (1) would provide for a reference to a Youth Training Activity Agreement in section 68 of the Student and Youth Assistance Act 1973 to be a reference to a Employment Assistance Activity Agreement for the purposes of that section.

 

Subclause (2) would provide that, during a person’s participation in the employment assistance scheme, a reference in section 75 of the Student and Youth Assistance Act 1973 to a Youth Training Activity Agreement is taken to be a reference to an Employment Assistance Activity Agreement.  This means that a person will satisfy the activity test if they are taking reasonable steps to comply with the terms of an Employment Assistance Activity Agreement and that they will not satisfy the activity test if they are not taking reasonable steps to comply with the agreement.

 

Section 81 of the Student and Youth Assistance Act 1973 deals with the failure of a person to negotiate a Newstart Activity Agreement.  Subclause (3) would apply that section to a failure to negotiate an Employment Assistance Activity Agreement under this Act.

 

Sections 104 and 105 of the Student and Youth Assistance Act 1973 set out deferment periods that apply where a youth training allowee fails to enter into an activity agreement or does not comply with an activity agreement.  Subclause (4) would apply these sections of the Student and Youth Assistance Act 1973 in a similar way to allowees who have an Employment Assistance Activity Agreement under this Act.

 

 

 

Clause 49 - Division has effect despite Social Security Act and Student and Youth Assistance Act

 

This clause would provide that this Division has effect despite anything in the Social Security Act 1991 and Part 8 of the Student and Youth Assistance Act 1973 .

 

Clause 50 - Definitions

 

This clause would provide for definitions for certain terms used in this Division.

 

 

Division 4 - Compliance with Agreement

 

Clause 51 - Information about compliance with Employment Assistance Activity Agreement

 

This clause would provide 2 mechanisms for requiring a person with an Employment Assistance Activity Agreement to give information to the Employment Secretary about compliance with that agreement.

 

First, subclause (2) would impose an obligation on a Social Security allowee, or a recipient of youth training allowance under Part 8 of the Student and Youth Assistance Act 1973 ,to notify the Employment Secretary of any circumstances preventing or affecting the person's compliance with the agreement.

 

Second, under subclause (3), the Employment Secretary may seek information about a person's compliance with an agreement from the person or the employment placement enterprise.  The Employment Secretary must provide a written notice specifying the information which is required.

 

It is intended that the notice be in writing and that the rules in sections 28A and 29 of the Acts Interpretation Act 1901 apply to such notifications.

 

Subclause (4) would require a person or employment placement enterprise to comply with the notice within a time and in a manner specified in the notice.

 

Section 630C of the Social Security Act 1991 and section 114 of the Student and Youth Assistance Act 1973 would provide a mechanism to require a person to attend, contact or give information to the Agency or the Department of Social Security.  Non-compliance with such a requirement can result in a deferment period applying to the person's newstart allowance or youth training allowance.

 

This clause would provide that these mechanisms under the Social Security Act 1991 or the Student and Youth Assistance Act 1973 , as the case may be, apply in relation to a similar failure to comply with a request under subclause (3).  Note that subsection 630C(3) of the Social Security Act 1991 and subsection 114(2) of the Student and Youth Assistance Act 1973 , which make the allowance payable if the Secretary is satisfied that the person had a reasonable excuse for not complying would also apply to a requirement under subclause (3).

 

 

PART 5 - MANAGEMENT OF PERSONAL INFORMATION

 

Division 1 - Control of employment services records

 

Clause 52 - Control of employment services records

 

Subclause (1) would provide for the Division to apply to records that are connected with the provision, or anticipated provision, of employment services to a person by an employment services provider under an employment services agreement.  The record must also be a record of personal information about the person.

 

Subclause (2) would provide for the Employment Secretary to make a written determination that specified records are employment services records for the purposes of this Part.

 

Subclause (3) would provide that the Employment Secretary must consult the Privacy Commissioner before making a determination under this clause.

 

A determination made by the Employment Secretary for this purpose would be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .  Accordingly, it must be published in the Gazette , tabled in the Parliament and would be subject to Parliamentary disallowance.

 

Clause 53 - Employment Secretary may make rules

 

Subclause (1) would provide for the Employment Secretary to formulate rules about any or all of the following:

 

·                     the provision of employment assistance documents by the Employment Secretary to employment services providers;

·                     the creation of such documents by employment services providers;

·                     the handling, copying and storage of such documents;

·                     the amendment of such documents;

·                     the return of such documents to the Employment Secretary;

·                     the destruction of, or of copies of, such documents held by employment services providers;

·                     the retention of such documents by employment services providers;

·                     the giving of information relating to rules about any of the above-mentioned matters, where the information is provided to a person who is or has been using employment services provided under an employment services agreement;

·                     the imposing of penalties of not more than $500 for a breach of the employment services records rules; and

·                     the form in which consent under clause 54 is to be given.

 

It is expected that the Employment Secretary, in formulating the employment assistance document rules, will also consult with the Attorney-General's Department.

 

Subclause (2) would provide that the Employment Secretary must consult the Privacy Commissioner and the Director-General of the Australian Archives before making a determination under this clause.

 

The rules would be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .  Accordingly, they must be published in the Gazette , tabled in the Parliament and would be subject to Parliamentary disallowance. 

 

Clause 54 - Rules relating to sensitive personal information about a person

 

This clause would set out rules relating to records that consist of or contain sensitive personal information about a person.

 

“Sensitive personal information” is defined by clause 5 to mean personal information about a person that relates to that person’s:

 

·         racial or ethnic origin;

·         religious or philosophical beliefs;

·         trade union membership;

·         sexual orientation;

·         health; or

·         criminal record.

 

The clause would generally prohibit the Employment Secretary providing a record containing sensitive personal information about a person to an employment services provider unless:

 

·         the person consents; or

·         the person was made aware at the time the information was collected that it could be given to an employment services provider and has been consulted (to the extent practicable) about the proposed giving of the record.

 

Subclause (4) is to the effect that the Employment Secretary must not provide a record containing sensitive personal information about a person if it also contains information about another person or irrelevant information.

 

Subclauses (5) & (6) would require the Employment Secretary to consult with the Privacy Commissioner on the publication of guidelines to assist in identifying information that is irrelevant for the purposes of subclause (4).

 

The clause would generally prohibit an employment services provider from providing a record containing sensitive personal information about a person to another person unless:

 

·         the first mentioned person consents; or

·         the Employment Secretary is satisfied the provision of the record is justified despite the absence of consent.

 

Subclauses (8) & (9) would require the Employment Secretary to consult with the Privacy Commissioner on the publication of guidelines to assist in identifying circumstances in which provision of the record is justified.

 

Subclause (10) would provide for the form of consent to the provision of personal information to be set out in the rules under clause 55.

 

 

Clause 55 - Relationship with Archives Act and Privacy Act

 

The employment assistance document rules must not be inconsistent with the Archives Act 1983 and such documents are Commonwealth Records for the purposes of that Act .

 

The employment assistance document rules must not be inconsistent with the Privacy Act 1988 .

 

 

Division 2 - Secrecy

 

Clause 56 - Secrecy

 

Section 70 of the Crimes Act 1914 creates an offence for disclosure of information by Commonwealth officers in breach of their duties.  The special definition of Commonwealth officer that applies to that section would extend to employment services providers.

 

The object of the section is to create duties of non-disclosure for the purposes of section 70 of the Crimes Act 1914 .

 

Subclause (3) would provide that, subject to subclauses (4) and (5) an employment services provider must not disclose:

 

·         information concerning a participant that is contained in an employment services record; or

·         information concerning a participant, if the information has been acquired in the course of performing functions under or for the purposes of this Act;

 

to any person other than the participant.

 

Subclause (3) would not apply to a person who discloses the information for the purposes of performing functions under or for the purposes of this Act.

 

Subclause (5) provides a list of circumstances in which disclosure may otherwise be made and which substantially follows Information Privacy Principle 11 of the Privacy Act 1988 .  The circumstances are:

 

·         the participant has consented to the disclosure;

·         the participant is aware, or is reasonably likely to be aware that information of that kind is usually communicated to that person;

·         the employment services provider concerned reasonably believes that the disclosure is necessary to prevent or lessen a serious and imminent threat to life or health of the participant or any other individual;

·         the disclosure is required by or authorised by law or under a law; or

·         the disclosure is reasonably necessary for the enforcement of a criminal law or a law imposing a pecuniary penalty or for the protection of the public revenue.

 

 

 

PART 6 - INVESTIGATIONS BY EMPLOYMENT SECRETARY

 

 

Clause 57 - Object of Part

 

This part would provide for investigation by the Employment Secretary of certain matters relating to the provision of employment services.

 

Clause 58 - Matters to which this Part applies

 

This clause would set out the matters which may be investigated by the Employment Secretary.

 

Those matters are:

 

·         the performance of functions and the exercise of powers of persons acting as delegates of the Employment Secretary;

·         the provision of employment services by entities under employment services agreements;

·         a breach of an employment services agreement;

·         a contravention of the employment services record rules; and

·         a contravention of a duty of non-disclosure.

 

Clause 59 - Complaints to Employment Secretary

 

This clause would make provision for written complaints against entities to be lodged with the Employment Secretary.

 

Clause 60 - Investigations by Employment Secretary

 

This clause would provide the Employment Secretary with discretionary power to investigate a matter, either where a written complaint is lodged, or of his or her own accord.

 

Subclause (2) would compel the Employment Secretary to investigate a matter at the request of the Minister.

 

Clause 61 - Preliminary enquiries

 

This clause would allow the Employment Secretary to make preliminary enquiries of the respondent against whom a complaint has been made, to determine whether it has power to investigate the matter or to determine whether it should investigate the matter.

 

Clause 62 - Reference of certain matters to Departmental Secretaries

 

This clause would provide that the Employment Secretary must transfer a complaint to the Chief Executive Officer of the Agency or the Social Security Secretary if the Employment Secretary decides that he or she does not have power to investigate the complaint or decides that he or she should not investigate the complaint and considers that the matter could be more conveniently dealt with by that Chief Executive Officer or Secretary, as the case may be.

 

Clause 63 - Conduct of investigations

 

This clause would set out the manner in which investigations should be conducted by the Employment Secretary.

 

It would include provisions in relation to informing respondents of investigations (unless the investigation would be prejudiced), the obtaining of information, and providing a party to the complaint with the opportunity to make submissions prior to the Employment Secretary making a finding adverse to the party.

 

Clause 64 - Complainant and certain other persons to be told about decisions not to investigate

 

This clause would provide that where the Employment Secretary, after starting investigation of a compliant, decides not to investigate the complaint further, the Employment Secretary must inform the respondent and the complainant as soon as practicable after the decision is made.

 

Clause 65 - Reference of matters to Ombudsman

 

This clause would enable complaints to be referred to the Commonwealth Ombudsman.

 

If the Employment Secretary transfers a complaint to the Commonwealth Ombudsman, he or she must give written notice to the complainant of the transfer.  Upon transfer, the Employment Secretary must provide any information or documents that relate to the complaint.

 

Clause 66 - Reference of matters to Australian Competition and Consumer Commission

 

This clause would enable complaints to be referred to the Australian Competition and Consumer Commission.

 

If the Employment Secretary transfers a complaint to the Australian Competition and Consumer Commission, he or she must give written notice to the complainant of the transfer.  Upon transfer, the Employment Secretary must provide any information or documents that relate to the complaint.

 

Where the Australian Competition and Consumer Commission decides to conduct an investigation into the matter, it must report to the Employment Secretary on the conduct of the investigation and any findings it makes.

 

Clause 67 - Reference of matters to Privacy Commissioner

 

This clause would enable complaints to be referred to the Privacy Commissioner.

 

If the Employment Secretary transfers a complaint to the Privacy Commissioner, he or she must give written notice to the complainant of the transfer.  Upon transfer, the Employment Secretary must provide any information or documents that relate to the complaint.

 

Where the Privacy Commissioner decides to conduct an investigation into the matter, it must report to the Employment Secretary on the conduct of the investigation and any findings it makes.

 

Clause 68 - Effect of investigation by Auditor-General

 

The provision would prevent the Employment Secretary from continuing an investigation where it becomes apparent that the matter is under investigation by the Auditor-General, until that investigation has been completed or the Auditor-General consents.

 

Clause 69 - Reports on investigations

 

This clause would enable the Employment Secretary to report to the Minister after concluding an investigation and requires it to so report where the investigation is at the instigation of the Minister.

 

Clause 70 - Protection from civil actions

 

This clause would protect persons making a complaint or providing statements or documents in connection with an investigation from civil proceedings for loss, damage or injury, where they acted in good faith.

 

 



 

PART 7 - MONITORING OF COMPLIANCE

 

 

Clause 71 - Appointment of inspectors

 

This clause would enable the Employment Secretary to appoint officers of the Department as inspectors.

 

Clause 72 - Identity cards for inspectors

 

This clause would require identity cards to be issued to inspectors.

 

Clause 73 - Return of identity cards issued to inspectors

 

This clause would create an offence for an inspector failing to return his or her identity card, without reasonable excuse, upon ceasing to be an inspector.  The maximum penalty is a fine of 1 penalty unit, currently $100.

 

Clause 74 - Searches to monitor compliance

 

This clause would enable inspectors to search premises for the purposes of monitoring compliance by employment placement enterprises with the conditions of their accreditation and the agreements under which they are engaged.

 

The premises concerned must either be the premises at which employment placement enterprise services are provided or premises at which records relating to those services are kept.  Residential premises cannot be searched without the consent of the occupier.

 

Inspectors would only be able to carry out a search between the hours of 9am and 5pm, Monday to Friday, other than on a public holiday.

 

Subclause (3) would limit the search powers of an inspector where he or she believes on reasonable grounds that:



(a)        the Employment Secretary has already made reasonable efforts to exercise other powers and these have proved insufficient to achieve the purpose; or

(b)        an attempt by the Employment Secretary to exercise such powers would not be effective.

 

Subclauses (4), (5) and (6) would require the consent of an occupier to search residential premises, require the inspector to show identification if requested by the occupier of premises and would limit the application of the section to searches of premises at which employment placement enterprise services are provided or where connected records are kept.

 

 

 

 

Clause 75 - Information-gathering powers - searches of premises

 

This clause would allow an inspector, on searching premises, to require a person to answer questions put by the inspector and produce any documents requested by the inspector.

 

These powers would only be exercised for limited purposes relating to ascertaining compliance with conditions of accreditation, the agreement relating to the engagement of the employment placement enterprise and certain offences under the Act.

 

The inspector must first show the person his or her identity card.

 

Subclause (4) would make it an offence for a person to refuse or fail to provide information or documentation as requested by the inspector.  The maximum penalty is 30 penalty units, currently $3000.

 

However, subclause (5) would excuse a person from providing the information or documentation where he or she might incriminate himself or herself by so doing.

 

Clause 76 - Retention of documents

 

This clause would provide that where an inspector removes a document from a premises, seizes a document or has a document produced, the inspector may retain the document for such a period as is necessary and reasonable to ascertain whether certain matters, set out in this clause, have been complied with.

 

 

 

PART 8 - EMPLOYMENT SECRETARY’S GENERAL INFORMATION GATHERING POWERS

 

 

Clause 77 - Power to obtain information and documents

 

This clause would give the Employment Secretary the power to obtain information and documents relating to certain designated matters listed in subclause (4).  The power is exercised by serving a written notice on a person.

 

Subclauses (2) and (3) set out certain matters that must be included in the notice.

 

Clause 78 - Restriction on power to obtain information or documents

 

This clause would restrict the circumstances in which the Employment Secretary may require the giving of personal information about a person under clause 77.

 

Subclause (1) would provide that such personal information should not be required to be given where there is a reasonably practicable alternative for the purpose in question.

 

Subclause (2) would provide that, if there is no reasonably practicable alternative, the Employment Secretary may require the giving of the information if:

 

·         the person consents; or

·         the person was previously aware that it was reasonably likely that the information would be required for the purpose for which it is being requested.

 

Subclause (3) would provide that the Employment Secretary must not require the giving of information relevant to monitoring the characteristics and attributes of a person unless:

 

·         the person has been informed of the purposes for which the information will be used;

·         the person has consented to the information being used for those purposes; and

·         it is reasonable to assume that the person has understood the implications of giving or withholding consent.

 

Subclause (4) would provide that clause 77 does not require a person to give information to the extent that to do so would contravene a law of the Commonwealth (other than a law of a Territory).

 

Subclause (5) would provide that the powers of the Employment Secretary under clause 77 would be subject to Information Privacy Principles 1, 2 and 3 of the Privacy Act 1988 .

 

Clause 79 - Copying documents - reasonable compensation

 

This clause would give a person a right to be paid reasonable compensation for the cost of providing copies of documents to the Employment Secretary as required by paragraph 77(2)(c).

 

Clause 80 - Failure to comply with section 77 notice

 

This clause would create an offence where a person without reasonable excuse, intentionally or recklessly fails to provide information or documentation after being given a written notice.  The maximum penalty is 6 months imprisonment.

 

Subclause (2) would excuse a person from providing the information or documentation where he or she might incriminate himself or herself by so doing.

 

Clause 81 - Giving false or misleading information or evidence

 

This clause would create an offence for a person to intentionally or recklessly provide false or misleading information or evidence when complying with a written notice under clause 77.

 

The maximum penalty is 12 months imprisonment.

 

 

Clause 82 - Provision of false or misleading documents

 

This clause would create an offence for a person to knowingly produce documents which are false or misleading in a material particular, when complying with a written notice under clause 77.

 

The maximum penalty is 12 months imprisonment.

 

The offence would not apply where the person producing the false or misleading document attaches a statement stating that the document is false or misleading in a material particular and referring to the material particular in which it is wrong.

 

Clause 83 - Copies of documents

 

This clause would enable the Employment Secretary to inspect and make and retain copies of documents produced under this Part and retain possession of copies of documents produced in accordance with paragraph 77(2)(c).

 

Clause 84 - Employment Secretary may retain documents

 

This clause would enable the Employment Secretary to retain a document produced under this Part for as long as is necessary for the purposes of the Act.  The person who would otherwise be entitled to the document is to be supplied with a certified copy of the document.

 

A person would be entitled to access to inspect and make copies of documents retained by the Employment Secretary.

 

 

 

PART 9 - ADVISORY COMMITTEES

 

 

Division 1 - National committee

 

Clause 85 - Establishment of national committee

 

This clause would enable the Minister to establish a national committee.

 

Clause 86 - Function of national committee

 

This clause would provide that the function of the national committee would be to advise the Employment Secretary on the provision of employment services under this Act.

 

 

 

 

 

Clause 87 - Provisions relating to the national committee

 

This clause would set out various administrative matters in relation to the appointment of members of the national committee, the periods of appointment of its members and the resignation and termination of appointment of members.

 

 

Division 2 - Area committees

 

Clause 88 - Establishment of area committees

 

This clause would enable the Employment Secretary to establish committees for specified areas.

 

Clause 89 - Function of area committees

 

Clause 89 would provide for area committees to advise the Employment Secretary on the following matters relating to the relevant area:

 

(a)   the creation of employment opportunities and training opportunities;

(b)   increasing the responsiveness of the Department to regional labour markets; and

(c)   linking the Department’s programs with regional development.

 

Clause 90 - Provisions relating to area committees

 

Clause 90 would provide that the Employment Secretary may formulate guidelines on the establishment of area committees including, but not limited to, the appointment of members and the resignation and termination of appointment of members.

 

 

Division 3 - Disclosure of interests

 

Clause 91 - Disclosure of interests

 

Clause 91 would deal with members disclosing pecuniary interests in matters being considered by a committee.

 

Subclause (1) would apply the provision to committees established under this Part of the Act.

 

Subclause (2) would require members to declare any direct or indirect pecuniary interests in matters being considered by the committee of which they are a member.  The member must disclose the nature of his or her interest at a meeting of the committee as soon as possible after the member becomes aware that the matter has a connection with his or her pecuniary affairs.

 

Subclause (3) would prevent a member of a committee who makes a disclosure under subclause (2) from being present at, or participating in the deliberations of the committee on the matter.  However, the committee may allow the member to be present, or participate in such a meeting.

 

Under subclause (4), a member may not be present at, or participate in, any deliberations by the committee in relation to allowing the member to be present.

 

 

 

PART 10 - REVIEW OF DECISIONS RELATING TO THE EMPLOYMENT ASSISTANCE SCHEME, TO REFERRALS TO EMPLOYMENT PLACEMENT ENTERPRISES AND TO EMPLOYMENT ASSISTANCE ACTIVITY AGREEMENTS

 

 

Division 1 - Preliminary

 

Clause 92 - Reviewable decision

 

This Part would include a mechanism in the Act for review by the Social Security Appeals Tribunal, and then the Administrative Appeals Tribunal, of decisions of the Employment Secretary under Part 3 which deals with the provision of employment assistance and Part 4 which deals with Employment Assistance Activity Agreements.

 

A decision under clause 27 (which deals with whether a person is a participant in the employment assistance scheme) or clause 28 (which deals with when a person could no longer be referred for employment assistance) would not be reviewable on the basis that it is made as a result of consideration of whether sufficient resources are available to provide such assistance.  Such resource-based decisions are not amenable to administrative review.

 

Clause 93 - Authorised review officers

 

This clause would enable the Employment Secretary to authorise an officer of the Department or of the Commonwealth Services Delivery Agency to perform duties to review decisions under this Part.  Such authorisations must be in writing.

 

Persons authorised under this clause would be known as 'authorised review officers'.

 

 

Division 2 - Internal review

 

Clause 94 - Employment Secretary may review decisions

 

This clause would enable review of reviewable decisions where the Employment Secretary is satisfied there is sufficient reason to review the decision.

 

Applications made to the Social Security Appeals Tribunal or the Administrative Appeals Tribunal for a review of a decision would not prevent the Employment Secretary reviewing that decision.

 

In reviewing a decision the Employment Secretary may affirm or vary the decision, or set aside the decision and substitute a new decision.

 

Subclauses (4) and (5) would require the Employment Secretary to notify the National Convenor of the Social Security Appeals Tribunal and the Registrar of the Administrative Appeals Tribunal, as the case may be, of the review decision, if at that time an application had been made to the relevant tribunal for a review of the original decision.

 

Subclause (6) would enable the Employment Secretary to deem particular events to have occurred for the purpose of this Act.

 

Clause 95 - Application for review

 

This clause would provide for internal review of decisions made under this Act.  This review clause would not apply to decisions made by the Employment Secretary personally.

 

The Employment Secretary or an authorised review officer may conduct reviews under this provision.

 

Subclause (3) would provide for an internal review to be conducted prior to the Social Security Appeals Tribunal conducting a review of a decision by deeming an application made to the Tribunal, where a person could have applied to the Employment Secretary but did not do so, to have been made to the Employment Secretary.

 

Clause 96 - Employment Secretary's powers where application for review is made

 

This clause would provide that where an application for review or a decision is made to the Employment Secretary, the Employment Secretary or an authorised review officer must review the decision and either:

 

     (a)     affirm the decision;

     (b)     vary the decision; or

     (c)     set the decision aside and substitute a new decision.

 

The applicant must be notified in writing of the decision by the person conducting the review.

 

Subclause (3) would enable the Employment Secretary to deem particular events to have occurred for the purpose of this Act.

 

Clause 97 - Notification of further rights of review

 

This clause would provide that a notification of a decision under clause 96 must include a statement of the reasons for the decision, the applicant's right to apply for review to the Social Security Appeals Tribunal, and the applicant's rights to apply for a review of the Social Security Appeals Tribunal decision to the Administrative Appeals Tribunal.

 

 

Division 3 - Review by the Social Security Appeals Tribunal and the Administrative Appeals Tribunal

 

Subdivision A - Object of Division

 

Clause 98 - Object of Division

 

This clause would set out the object of this Division, being to enable a person affected by a reviewable decision to have the decision reviewed by the Social Security Appeals Tribunal and, if necessary, the Administrative Appeals Tribunal.

 

Subdivision B - Review by the Social Security Appeals Tribunal

 

Clause 99 - Application for review

 

This clause would provide for a person whose interests are affected by a decision under clause 96 (which relates to decisions reviewed by the Employment Secretary), to apply to the Social Security Appeals Tribunal (SSAT) for a review of that decision.

 

Clause 100 - Application requirement for certain section 42 decisions

 

Clause 42 relates to the terms of an Employment Assistance Activity Agreement.  This clause proposes that an application to the SSAT for a review of a decision relating to the terms of an Employment Assistance Activity Agreement must expressly state it is an application for review of that decision.

 

Clause 101 - SSAT review powers

 

This clause would provide that, when the SSAT reviews a decision, it must affirm, vary or set aside the decision under review.  If the SSAT sets aside a decision it would either substitute a new decision or refer the matter back to the Employment Secretary together with directions or recommendations.

 

Subclause (2) would provide that the SSAT may exercise all the powers conferred by the Act on the Employment Secretary.

 

Under subclause (3), where the SSAT sets aside a decision, the SSAT or the Employment Secretary (as the case requires) may deem a certain event to have occurred for the purposes of the Act.

 

This clause would not apply to decisions under clause 42 to the extent that they relate to the terms of a Employment Assistance Activity Agreement that is in force.

 

 

Clause 102 - Social Security Appeals Tribunal review powers (Employment Assistance Activity Agreement decision)

 

This clause would provide that, if a person applies to the SSAT for a review of a decision under clause 42, to the extent that the decision relates to the terms of a Employment Assistance Activity Agreement that is in force, the SSAT may only either affirm the decision or set the decision aside and refer the matter back to the Employment Secretary for reconsideration in accordance with any recommendations the SSAT may make.

 

Clause 103 - Date of effect of SSAT decisions

 

Subclause (1) would provide that, subject to subclauses (2) and (3), a decision of the SSAT comes into effect immediately on the making of the decision.

 

Subclause (2) would provide that the SSAT may specify a later date for the operation of the decision.

 

Subclause (3) would provide that, where the SSAT varies or sets aside a decision under review, the date of effect of the SSAT's decision is the date on which the decision under review has or had effect.  Subclause (4) would allow for the SSAT to order that subclause (3) will not apply in particular cases.

 

This clause would not apply to a decision under clause 42 to the extent that the decision relates to the terms of a Employment Assistance Activity Agreement that is in force.

 

Clause 104 - Date of effect of SSAT (Employment Assistance Activity Agreement decision)

 

This clause would provide that, if a person applies to the SSAT for a review of a decision under clause 42, to the extent that the decision relates to the terms of a Employment Assistance Activity Agreement that is in force, the SSAT decision comes into effect immediately on the giving of the decision or such other later date as the SSAT may specify.

 

Clause 105 - Application requirements

 

This clause would deal with the application requirements relating to review by the SSAT.  Applications may be made in writing to an office of the SSAT, the Department of Employment, Education, Training and Youth Affairs, the Department of Social Security or an office of the Agency.  Oral applications may also be made to an office of the SSAT and a written record must be made by the person in the SSAT office receiving the application, noting the date on which the application was made.

 

An application may include a statement of reasons for seeking the review.

 

 

 

Clause 106 - Variation of decision before review completed

 

This clause would provide that, if a decision under review is varied, or set aside and a new decision is substituted, before the SSAT has made a determination, then the application for review will be treated as an application for a review of the decision as varied or the new decision as the case may be.  A person may then either proceed with the application for review or withdraw the application under section 1274 of the Social Security Act 1991 .

 

Clause 107 - Parties to SSAT review

 

This clause would propose that the parties to a review by the SSAT are the applicant, the Employment Secretary and any other person made a party by order of the National Convenor of the SSAT following an application in writing requesting to be made a party.

 

Clause 108 - SSAT’s objectives

 

The SSAT, in carrying out its functions under the Act, would be required to pursue the objective of providing a mechanism for review that is fair, just, economical, informal and quick.  These objectives are the same requirements that the SSAT has under the Social Security Act 1991 .

 

 

Subdivision C - Additional provisions relating to review of decisions

 

Clause 109 - Application of Parts 6.3 and 6.4 of the Social Security Act 1991

 

Parts 6.3 and 6.4 of the Social Security Act 1991 provide for review by the Social Security Appeals Tribunal and the Administrative Appeals Tribunal of decisions under the Social Security Act 1991 .  This clause would provide that, subject to the changes listed below, those Parts apply in relation to reviewable decisions and decisions on internal review in a corresponding way to the way in which they apply to decisions of officers under the Social Security Act 1991 and decisions on internal review under that Act.

 

Subclause (2) would provide that section 1265 of the Social Security Act 1991 is to be read as if subsection (7) had been repealed.

 

Subclause (3) would provide that each reference in Parts 6.3 and 6.4 of the Social Security Act 1991 to the Social Security Secretary, other than each reference in section 1269, is taken to be replaced by a reference to the Employment Secretary.

 

Subclause (4) would provide that each reference in subsections 1279(2) and (5) and 1283(4) of the Social Security Act 1991 to that Act, is taken to be replaced by a reference to:

 

·         in the case of subsections 1279(2) and (5), that Act and this Act; and

·         in the case of subsection 1283(4), this Act.

 

Subclause (5) would provide that references to the Department of Social Security are taken to be replaced by references to the Department of Employment, Education, Training and Youth Affairs.

 

Subclause (6) would provide that the reference in subsection 1264(2) of the Social Security Act 1991 to section 1260 of that Act is taken to be a reference to section 107 of this Act.

 

Subclause (7) would provide that each reference to section 1246 of the Social Security Act 1991 is taken to be replaced by a reference to section 108 of this Act.

 

Subclause (8) would provide that each reference to section 1284 of the Social Security Act 1991 to an officer is taken to be replaced by a reference to the Employment Secretary.

 

 

 

PART 11 - RECOVERY OF OVERPAYMENTS ETC.

 

This Part would enable the recovery of amounts from entities engaged to provide employment services.

 

Clause 110 - Recoverable amounts

 

This clause would define recoverable amounts for the purposes of this Part.  They are:

 

·                amounts paid, or purportedly paid, by the Commonwealth under an employment services agreement;

·                amounts liable to be repaid to the Commonwealth because of a contravention of a condition of an employment services agreement.

 

Clause 111 - Recoverable amount is a debt

 

This clause would provide that a recoverable amount is a debt due to the Commonwealth and is recoverable in a court of competent jurisdiction.

 

Clause 112 - Recovery by set-off

 

This clause would enable the Commonwealth to recover a recoverable amount from an entity by deducting the debt from other amounts payable to the entity from time to time (eg. other fees).

 

Clause 113 - Commonwealth may collect money from a person who owes money to an entity

 

Where an entity is liable to pay a recoverable amount to the Commonwealth, this clause would provide for recovery of the debt by the Commonwealth collecting money from a person who owes money to that entity.

 

The clause would set out various procedures that must be followed to recover the debt in this way.

 

 

PART 12 - INJUNCTIONS

 

 

Clause 114 - Injunctions granted on the application of Employment Secretary

 

Subclause (1) would provide for the granting of restraining injunctions by the Federal Court of Australia where an entity has, is, or proposes to contravene any provisions of this Act, an employment services agreement, the employment assistance document rules, or a duty of non-disclosure in force under clause 56.

 

Subclause (2) would provide for the Federal Court of Australia to grant an injunction requiring a person to do an act or thing, where an entity will contravene this Act by refusing or failing to do an act or thing.

 

Clause 115 - Interim injunctions

 

This clause would provide for interim injunctions to be granted, but without requiring any undertakings as to damages by the applicant for the injunction.

 

Clause 116 - Discharge etc. of injunctions

 

This clause would provide for the court to discharge or vary an injunction granted under this Part.

 

Clause 117 - Certain limits on granting injunctions not to apply

 

This clause would prevent certain limits which normally apply to the granting of restraining or performance injunctions from applying to injunctions under this Part.

 

Clause 118 - Other powers of the court unaffected

 

This clause would provide that the powers conferred on the court in this Part do not affect any other powers of the Court.

 

 

 

PART 13 - DELEGATION OF EMPLOYMENT SECRETARY’S POWERS

 

 

Clause 119 - Delegation

 

This clause would provide for the Employment Secretary to delegate the powers or functions of the Employment Secretary under the Act to an officer of the Department or to a member of staff of the Agency.

 

 

 

PART 14 - TREATMENT OF PARTNERSHIPS AND UNINCORPORATED ASSOCIATIONS

 

 

Clause 120 - Treatment of partnerships

 

This clause would provide that the Act applies to a partnership as if the partnership were a person but:

 

·         obligations that would be imposed on the partnership are imposed on each partner and may be discharged by any of the partners; and

·         any offence that would otherwise have been committed by the partnership is taken to have been committed by each partner who:

aided, abetted, counselled or procured the relevant act or omission; or

was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).

 

Clause 121 - Treatment of unincorporated associations

 

This clause would provide that the Act applies to an unincorporated association as if the association were a person but:

 

·         obligations that would be imposed on the unincorporated association are imposed on each member and may be discharged by any of the members; and

·         any offence that would otherwise have been committed by the unincorporated association is taken to have been committed by each member who:

aided, abetted, counselled or procured the relevant act or omission; or

was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the member).

 



 

PART 15 - PROSECUTIONS

 

 

Clause 122 - Prosecutions of corporations

 

This clause would be a standard provision relating to the prosecution of corporations.  It would set out specific rules to assist in establishing the state of mind of the corporation and to presume conduct of directors, employees and agents of the corporation to be the corporation's conduct in certain circumstances.

 

Clause 123 - Prosecutions of persons other than corporations

 

This clause would relate to the prosecution of persons other than corporations.  It would set out specific rules to presume the conduct and state of mind of employees and agents of a person to be the conduct and state of the mind of that person in certain circumstances.  This provision is necessary because of the range of unincorporated entities which will be able to become contracted employment placement enterprises under the Act.

 

 

 

PART 16 - SERVICE OF DOCUMENTS

 

 

Clause 124 - Giving of documents to Employment Secretary

 

This clause would provide that if a document is taken to have been given to the Employment Secretary if it is sent or delivered to:

 

·         an office of the Department; or

·         an office of the Agency; or

·         a place approved for the purpose by the Employment Secretary.

 

Clause 125 - Giving of documents to partnerships

 

This clause would provide that, for the purpose of this Act, a document given to a partner of a partnership in accordance with section 28A of the Acts Interpretation Act 1901 is to be taken as having been given to the partnership.

 

Clause 126 - Giving of documents to unincorporated associations

 

This clause would provide that for the purposes of this Act, a document given to a member of the executive committee of an unincorporated association in accordance with section 28A of the Acts Interpretation Act 1901 is to be taken as having been given to the unincorporated association.

 



 

PART 17 - REGULATIONS

 

 

Clause 127 - Regulations

 

This clause would provide regulations to be made by the Governor-General for the purpose of this Act.

 

Specific provision would be included for the regulations to provide for write-off and waiver of debts, and for creating offences against the regulations with a maximum penalty of 10 penalty units, currently $1000.