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Family and Community Services Legislation Amendment (Australians Working Together and other 2001 Budget Measures) Bill 2003
Schedule 1A Amendments in relation to administrative penalties

   

Social Security Act 1991

1  Subsection 557A(1)

Omit “subsections (2) and (3)”, substitute “subsections (2), (3), (4) and (7)”.

2  At the end of section 557A

Add:

             (4)  Subject to subsection (3), if:

                     (a)  an activity test breach rate reduction period is applicable to a person because of an activity test breach other than:

                              (i)  a breach for failing to take reasonable steps to comply with a requirement of the Secretary to undertake particular paid work as set out in a notice under subsection 541(2); or

                             (ii)  a breach of paragraph 541A(c) or 550A(c), (e), (f) or (g); or

                            (iii)  a breach of paragraph 550A(d) where the Secretary is satisfied that the person has acted with an intention of obtaining a social security advantage; or

                            (iv)  a breach because of a failure to take reasonable steps to comply with a job search requirement of a Youth Allowance Activity Agreement as described in subsection (6); and

                     (b)  the activity test breach is the first activity test breach of any kind that is applicable to the person in the period of 2 years ending immediately before the day after the activity test breach; and

                     (c)  the Secretary notifies the person, either orally or in writing, of an activity or activities that, if undertaken by the person, would satisfy the Secretary that the activity test breach rate reduction period should be modified in accordance with this subsection; and

                     (d)  at the earliest opportunity available to the person but in no case later than 8 weeks after the start of the activity test breach rate reduction period, the person undertakes the activity or each of the activities;

the activity test breach rate reduction period applicable to the person is 8 weeks rather than 26 weeks.

             (5)  For the purposes of subparagraph (4)(a)(iii), a person has an intention of obtaining a social security advantage if the person has an intention of:

                     (a)  obtaining, or enabling the person to obtain, a social security payment that the person would not otherwise obtain; or

                     (b)  obtaining, or enabling the person to obtain, a social security payment at a higher rate than that which would otherwise be payable; or

                     (c)  ensuring that the person would be qualified for fringe benefits for the purposes of this Act or the Veterans’ Entitlements Act.

             (6)  For the purposes of subparagraph (4)(a)(iv), a job search requirement of a Youth Allowance Activity Agreement is a requirement that the person to whom the agreement relates:

                     (a)  undertake a certain number of job searches per fortnight; and

                     (b)  keep a record of the person’s job searches in a document referred to in the agreement as a job seeker diary; and

                     (c)  return the job seeker diary to the Department at the end of the period specified in the agreement.

             (7)  If:

                     (a)  under paragraph (4)(c), the Secretary has notified a person of an activity or activities; and

                     (b)  the person has not:

                              (i)  undertaken the activity or any one or more of the activities referred to in paragraph (a); or

                             (ii)  if another activity or other activities is notified to the person in substitution for the activity or activities so referred to (or for any previously substituted activity or activities)—undertaken that other activity or any one or more of those other activities;

                            before the end of 8 weeks after the start of the activity test breach rate reduction period applicable to the person; and

                     (c)  the Secretary is satisfied that the failure to undertake the activity or any one or more of the activities referred to in paragraph (a) and any substituted activity or activities was for reasons outside the person’s control;

the Secretary may determine that the activity test breach rate reduction period applicable to the person is 8 weeks rather than 26 weeks.

3  Subsection 558A(1)

Omit “subsections (2) and (3)”, substitute “subsections (2), (3), (4) and (5)”.

4  At the end of section 558A

Add:

             (4)  Subject to subsection (3), if:

                     (a)  an administrative breach rate reduction period is applicable to a person because the person has refused or failed to comply with a requirement made of the person under section 63, 64, 67, 68, 75 or 192 of the Administration Act; and

                     (b)  the refusal or failure is the first refusal or failure in the period of 2 years ending immediately before the day after the refusal or failure; and

                     (c)  the Secretary notifies the person, either orally or in writing, of an activity or activities that, if undertaken by the person, would satisfy the Secretary that the administrative breach rate reduction period should be modified in accordance with this subsection; and

                     (d)  at the earliest opportunity available to the person but in no case later than 8 weeks after the start of the administrative breach rate reduction period applicable to the person, the person undertakes the activity or each of the activities;

the administrative breach rate reduction period applicable to the person is 8 weeks rather than 13 weeks.

             (5)  If:

                     (a)  under paragraph (4)(c), the Secretary has notified a person of an activity or activities; and

                     (b)  the person has not:

                              (i)  undertaken the activity or any one or more of the activities referred to in paragraph (a); or

                             (ii)  if another activity or other activities is notified to the person in substitution for the activity or activities so referred to (or for any previously substituted activity or activities)—undertaken that other activity or any one or more of those other activities;

                            before the end of 8 weeks after the start of the administrative breach rate reduction period applicable to the person; and

                     (c)  the Secretary is satisfied that the failure to undertake the activity or any one or more of the activities referred to in paragraph (a) and any substituted activity or activities was for reasons outside the person’s control;

the Secretary may determine that the administrative breach rate reduction period applicable to the person is 8 weeks rather than 13 weeks.

5  At the end of section 644AA

Add:

          (1A)  If:

                     (a)  an activity test breach rate reduction period is applicable to a person because of an activity test breach other than:

                              (i)  a breach for failing to take reasonable steps to comply with a requirement of the Secretary to undertake particular paid work as set out in a notice under subsection 601(2); or

                             (ii)  a breach of subsection 601A(1), of section 628, 629 or 630 or of paragraph 630AA(1)(b); or

                            (iii)  a breach of paragraph 630AA(1)(a) where the Secretary is satisfied that the person has acted with an intention of obtaining a social security advantage; or

                            (iv)  a breach because of a failure to take reasonable steps to comply with a job search requirement of a Newstart Allowance Activity Agreement as described in subsection (1C); and

                     (b)  the activity test breach is the first activity test breach of any kind that is applicable to the person in the period of 2 years ending immediately before the day after the activity test breach; and

                     (c)  the Secretary notifies the person, either orally or in writing, of an activity or activities that, if undertaken by the person, would satisfy the Secretary that the activity test breach rate reduction period should be modified in accordance with this subsection; and

                     (d)  at the earliest opportunity available to the person but in no case later than 8 weeks after the start of the activity test breach rate reduction period applicable to the person, the person undertakes the activity or each of the activities;

the activity test breach rate reduction period applicable to the person is 8 weeks rather than 26 weeks.

          (1B)  For the purposes of subparagraph (1A)(a)(iii), a person has an intention of obtaining a social security advantage if the person has an intention of:

                     (a)  obtaining, or enabling the person to obtain, a social security payment that the person would not otherwise obtain; or

                     (b)  obtaining, or enabling the person to obtain, a social security payment at a higher rate than that which would otherwise be payable; or

                     (c)  ensuring that the person would be qualified for fringe benefits for the purposes of this Act or the Veterans’ Entitlements Act.

          (1C)  For the purposes of subparagraph (1A)(a)(iv), a job search requirement of a Newstart Allowance Activity Agreement is a requirement that the person to whom the Agreement relates:

                     (a)  undertake a certain number of job searches per fortnight; and

                     (b)  keep a record of the person’s job searches in a document referred to in the agreement as a job seeker diary; and

                     (c)  return the job seeker diary to the Department at the end of the period specified in the Agreement.

          (1D)  If:

                     (a)  under paragraph (1A)(c), the Secretary has notified a person of an activity or activities; and

                     (b)  the person has not:

                              (i)  undertaken the activity or any one or more of the activities referred to in paragraph (a); or

                             (ii)  if another activity or other activities is notified to the person in substitution for the activity or activities so referred to (or for any previously substituted activity or activities)—undertaken that other activity or any one or more of those other activities;

                            before the end of 8 weeks after the start of the activity test breach rate reduction period applicable to the person; and

                     (c)  the Secretary is satisfied that the failure to undertake the activity or any one or more of the activities referred to in paragraph (a) and any substituted activity or activities was for reasons outside the person’s control;

the Secretary may determine that the activity test breach rate reduction period applicable to the person is 8 weeks rather than 26 weeks.

6  At the end of section 644B

Add:

          (1A)  If:

                     (a)  an administrative breach rate reduction period is applicable to a person because the person has refused or failed, without reasonable excuse, to comply with a requirement made of the person under section 63, 64, 67, 68, 75 or 192 of the Administration Act; and

                     (b)  the refusal or failure is the first refusal or failure in the period of 2 years ending immediately before the day after the refusal or failure; and

                     (c)  the Secretary notifies the person, either orally or in writing, of an activity or activities that, if undertaken by the person, would satisfy the Secretary that the administrative breach rate reduction period should be modified in accordance with this subsection; and

                     (d)  at the earliest opportunity available to the person but in no case later than 8 weeks after the start of the administrative breach rate reduction period applicable to the person, the person undertakes the activity or each of the activities;

the administrative breach rate reduction period applicable to the person is 8 weeks rather than 13 weeks.

          (1B)  If:

                     (a)  under paragraph (1A)(c), the Secretary has notified a person of an activity or activities; and

                     (b)  the person has not:

                              (i)  undertaken the activity or any one or more of the activities referred to in paragraph (a); or

                             (ii)  if another activity or other activities is notified to the person in substitution for the activity or activities so referred to (or for any previously substituted activity or activities)—undertaken that other activity or any one or more of those other activities;

                            before the end of 8 weeks after the start of the administrative breach rate reduction period applicable to the person; and

                     (c)  the Secretary is satisfied that the failure to undertake the activity or any one or more of the activities referred to in paragraph (a) and any substituted activity or activities was for reasons outside the person’s control;

the Secretary may determine that the administrative breach rate reduction period applicable to the person is 8 weeks rather than 13 weeks.

7  After subsection 729(2C)

Insert:

        (2CA)  The Secretary must not determine that a person has failed to take reasonable steps to comply with the terms of a Special Benefit Activity Agreement unless the Secretary:

                     (a)  is satisfied that the terms of the agreement were intended to assist the person over time in gaining employment or undertaking study or training; and

                     (b)  has made reasonable attempts to contact the person in relation to the requirement to comply with the terms of the agreement (and has documented each attempt to contact); and

                     (c)  if contact was able to be made, has had regard to the reasons, if any, provided by the person for not complying with the terms of the agreement; and

                     (d)  has confirmed the adequacy of the support that the Secretary agreed to provide under the agreement.

8  After subsection 731M(1)

Insert:

       (1AA)  If the person is at least 50 years of age but less than 60 years of age, the particular number of job vacancies shall not exceed 24 per 12 weeks in the period specified in the notice.

        (1AB)  If the person is at least 60 years of age, the particular number of job vacancies shall not exceed 12 per 12 weeks in the period specified in the notice.

        (1AC)  Subsection (1AA) does not apply unless the person has been receiving an income support payment for a continuous period of at least 9 months and the person satisfies the Secretary that the person has no recent workforce experience.

9  Subsection 731M(5)

Repeal the subsection, substitute:

             (5)  In having regard to a person’s capacity to comply with an agreement, the Secretary is to take into account, but is not limited to, the following matters:

                     (a)  the person’s education, experience, skills, age, disability, illness, and mental and physical condition;

                     (b)  the state of the local labour market and the transport options available to the person in accessing that market;

                     (c)  the participation opportunities available to the person;

                     (d)  the family and caring responsibilities of the person;

                     (e)  the length of travel time required for compliance with the agreement, by reference to what constitutes unreasonably difficult commuting for the purposes of paragraph 731B(1)(g);

                      (f)  the financial costs of compliance with the agreement, such as travel costs, and the capacity to pay for such compliance;

                     (g)  any other matters that the Secretary or the person considers relevant in the circumstances.

10  Paragraph 731M(6)(a)

After “varied”, insert “(in negotiation with the person)”.

11  After subsection 731M(6)

Insert:

          (6A)  Within 14 days of the day of the agreement being approved, those terms may be varied by the person with the approval of the Secretary.

          (6B)  The Secretary must advise the person in writing of the effect of subsection (6A).

          (6C)  To avoid doubt, subsection (6A) does not prevent the person at any time from requesting a review of an agreement under paragraph (6)(c).

12  Subparagraph 731N(1)(b)(iii)

After “agree to”, insert “the reasonable”.

13  Subsection 745C(2)

Repeal the subsection, substitute:

             (2)  Subject to subsection (4) of this section and to section 745D, the activity test non-payment period starts on the 14th day after the day on which the notice is given to the person.

14  At the end of section 748

Add:

          (1A)  If:

                     (a)  an activity test breach rate reduction period is applicable to a person because of an activity test breach other than:

                              (i)  a breach for failing to take reasonable steps to comply with a requirement of the Secretary to undertake particular paid work as set out in a notice under subsection 731A(7); or

                             (ii)  a breach of subsection 731C(1), of section 743, 744 or 745 or of paragraph 745A(1)(a); or

                            (iii)  a breach of paragraph 745A(1)(b) where the Secretary is satisfied that the person has acted with an intention of obtaining a social security advantage; or

                            (iv)  a breach because of a failure to take reasonable steps to comply with a job search requirement of a Special Benefit Activity Agreement as described in subsection (1C); and

                     (b)  the activity test breach is the first activity test breach of any kind that is applicable to the person in the period of 2 years ending immediately before the day after the activity test breach; and

                     (c)  the Secretary notifies the person, either orally or in writing, of an activity or activities that, if undertaken by the person, would satisfy the Secretary that the activity test breach rate reduction period should be modified in accordance with this subsection; and

                     (d)  at the earliest opportunity available to the person but in no case later than 8 weeks after the start of the activity test breach rate reduction period applicable to the person, the person undertakes the activity or each of the activities;

the activity test breach rate reduction period applicable to the person is 8 weeks rather than 26 weeks.

          (1B)  For the purposes of subparagraph (1A)(a)(iii), a person has an intention of obtaining a social security advantage if the person has an intention of:

                     (a)  obtaining, or enabling the person to obtain, a social security payment that the person would not otherwise obtain; or

                     (b)  obtaining, or enabling the person to obtain, a social security payment at a higher rate than that which would otherwise be payable; or

                     (c)  ensuring that the person would be qualified for fringe benefits for the purposes of this Act or the Veterans’ Entitlements Act.

          (1C)  For the purposes of subparagraph (1A)(a)(iv), a job search requirement of a Special Benefit Activity Agreement is a requirement that the person to whom the Agreement relates:

                     (a)  undertake a certain number of job searches per fortnight; and

                     (b)  keep a record of the person’s job searches in a document referred to in the agreement as a job seeker diary; and

                     (c)  return the job seeker diary to the Department at the end of the period specified in the Agreement.

          (1D)  If:

                     (a)  under paragraph (1A)(c), the Secretary has notified a person of an activity or activities; and

                     (b)  the person has not:

                              (i)  undertaken the activity or any one or more of the activities referred to in paragraph (a); or

                             (ii)  if another activity or other activities is notified to the person in substitution for the activity or activities so referred to (or for any previously substituted activity or activities)—undertaken that other activity or any one or more of those other activities;

                            before the end of 8 weeks after the start of the activity test breach rate reduction period applicable to the person; and

                     (c)  the Secretary is satisfied that the failure to undertake the activity or any one or more of the activities referred to in paragraph (a) and any substituted activity or activities was for reasons outside the person’s control;

the Secretary may determine that the activity test breach rate reduction period applicable to the person is 8 weeks rather than 26 weeks.

15  Subsection 749(2)

Repeal the subsection, substitute:

             (2)  Subject to subsection (4) of this section and to section 750, the activity test breach rate reduction period starts on the 14 th day after the day on which the notice is given to the person.

16  At the end of section 752

Add:

          (1A)  If:

                     (a)  an administrative breach rate reduction period is applicable to a person because the person has refused or failed, without reasonable excuse, to comply with a requirement made of the person under section 63, 64, 67, 68, 75 or 192 of the Administration Act; and

                     (b)  the refusal or failure is the first refusal or failure in the period of 2 years ending immediately before the day after the refusal or failure; and

                     (c)  the Secretary notifies the person, either orally or in writing, of an activity or activities that, if undertaken by the person, would satisfy the Secretary that the administrative breach rate reduction period should be modified in accordance with this subsection; and

                     (d)  at the earliest opportunity available to the person but in no case later than 8 weeks after the start of the administrative breach rate reduction period applicable to the person, the person undertakes the activity or each of the activities;

the administrative breach rate reduction period applicable to the person is 8 weeks rather than 13 weeks.

          (1B)  If:

                     (a)  under paragraph (1A)(c), the Secretary has notified a person of an activity or activities; and

                     (b)  the person has not:

                              (i)  undertaken the activity or any one or more of the activities referred to in paragraph (a); or

                             (ii)  if another activity or other activities is notified to the person in substitution for the activity or activities so referred to (or for any previously substituted activity or activities)—undertaken that other activity or any one or more of those other activities;

                            before the end of 8 weeks after the start of the administrative breach rate reduction period applicable to the person; and

                     (c)  the Secretary is satisfied that the failure to undertake the activity or any one or more of the activities referred to in paragraph (a) and any substituted activity or activities was for reasons outside the person’s control;

the Secretary may determine that the administrative breach rate reduction period applicable to the person is 8 weeks rather than 13 weeks.

17  Subsection 753(2)

Repeal the subsection, substitute:

             (2)  Subject to subsection (4), the administrative breach rate reduction period starts on the 14 th day after the day on which the notice is given to the person.