Business Services Wage Assessment Tool Payment Scheme Rules 2015 (Cth)
Business Services Wage Assessment Tool Payment Scheme Rules 2015
made under section 102 of the Business Services Wage Assessment Tool Payment Scheme Act 2015
____________________________________________________________________
Compilation No. 2
Compilation date: 16 December 2016
Includes amendments up to: Business Services Wage Assessment Tool Payment Scheme Amendment Rules (No. 2) 2016 (F2016L01965)
Prepared by the Department of Social Services
About this compilation
This compilation
This is a compilation of the Business Services Wage Assessment Tool Payment Scheme Rules 2015 that shows the text of the law as amended and in force on 16 December 2016 (the compilation date).
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Chapter 1— General provisions
Part 1— Preliminary
1.01 Name of rules
1.02 Commencement
Part 2— Interpretation
1.03 Definitions
1.04 Reference to things being done orally or in writing
1.05 Words relating to legal practices
Chapter 2— Eligibility and applications
Part 1— Eligibility
2.01 Evidence of eligibility—intellectual impairment
Part 2— Applications
2.02 Lodging applications
Chapter 3— Calculating the payment amount
Part 1— Outline and general concepts
3.01 Simplified outline
3.02 What is an eligible financial year and eligible period?
3.03 What happens if an eligible period straddles two eligible financial years?
3.04 Decimal places
Part 2— Working out the actual wage
3.05 Actual wage to be worked out in accordance with this Part
3.06 Step 1—Determine the person's gross pay for each eligible period
3.07 Step 2—Determine the number of hours the person worked in each eligible period
3.08 Step 3—Determine the BSWATR assessed rate for each eligible period
3.09 Step 4—Work out the person's actual wage for each eligible period
Part 3— Working out the productivity-scored wage
3.10 How to work out a person's productivity-scored wage
3.11 Step 1—Determine the BSWATR award rate
3.12 Step 2—Determine the BSWATR productivity component percentage for each eligible period
3.13 Step 3—Work out the person's productivity-scored rate for the eligible period
3.14 Step 4—Work out the person's productivity-scored wage for each eligible period
Part 4— Working out the payment amount
3.15 Payment amount to be worked out in accordance with this Part
3.16 Step 1—Determine the excess amount for each eligible period
3.17 Step 2—Determine the excess amount for each eligible financial year
3.18 Step 3—Index the amount for each eligible financial year to calculate the total excess amount
3.19 Step 4—Work out the payment amount
3.20 Calculating the amount on account of tax
Part 5— Training wage determinations
3.21 Purpose
3.22 Making a training wage determination
3.23 When must the Secretary make a training wage determination
3.24 Average BSWATR assessed rate
3.25 Average BSWATR productivity-scored rate
Chapter 4— Extensions of time and acceptance
4.01 Extensions of time for acceptance period and review period
4.02 Lodging an acceptance
Chapter 5— Internal review
5.01 Applications for internal review
5.02 Withdrawal of application for internal review
Chapter 6— External review
Part 1— Applications and withdrawals
6.01 Application for external review
6.02 Withdrawal of application for external review
Part 2— Remuneration of external reviewers
6.03 Remuneration payable to external reviewers
6.04 Where the external reviewer has a Commonwealth rate
6.05 Where the external reviewer does not have a Commonwealth rate
6.06 Hourly and daily rates
6.07 Rates are inclusive of GST
Part 3— External review process
6.08 Requirements for external review
Chapter 7— Nominees
Part 1— Functions and responsibilities of nominees
7.01 Modification of duty in relation to participants who cannot formulate preferences
7.02 Other duties
Part 2— Appointment and cancellation or suspension of appointment
7.03 Persons who must not be appointed as nominees
7.04 Nominee declaration
7.05 Criteria and matters for considering appointment
7.06 Requirement to consult
7.07 Cancellation or suspension of appointment of a nominee
Part 3— Review of certain decisions about nominees
7.08 Applications for review
7.09 Withdrawal of application for review
Chapter 8— Disclosure of protected information
Part 1— Purpose and outline
8.01 Purpose of this Chapter
Part 2— Rules for the purposes of making public interest certificates
8.02 When a public interest certificate may be given
8.03 Secretary must consider disclosure principles
Part 3— Rules for the purposes of disclosures to other agencies
8.04 When disclosures may be made to other agencies
Chapter 9— Legal and financial counselling services
Part 1— General
9.01 Purpose and simplified outline of this Chapter
9.02 Financial counsellors
9.03 Meaning of eligible adviser
Part 2— Publication scheme
9.04 Secretary to establish register of eligible advisers
9.05 Eligible advisers may apply to be included in register
9.06 Removal of eligible advisers from the register
Part 3— Payments for services provided by an eligible adviser
9.07 Eligible adviser may make a claim for payment
9.08 Maximum amount of a claim
9.09 Secretary to decide claim
Chapter 10— Deceased persons
10.01 Purpose of this Chapter
10.02 Making an application to be a legal personal representative
10.03 Secretary may determine that a person is a legal personal representative
10.04 More than one LPR applicant for a deceased person
10.05 Cancellation of determination
10.06 One approved legal personal representative
10.07 Effect of making a payment
Chapter 1—General provisions
Part 1—Preliminary
1.01Name of rules
These rules are the Business Services Wage Assessment Tool Payment Scheme Rules 2015.
1.02Commencement
These rules commence on the day after they are registered.
Part 2—Interpretation
1.03Definitions
(1)In these rules:
Act means the Business Services Wage Assessment Tool Payment Scheme Act 2015.
ADE means Australian Disability Enterprise.
applicable BSWATR—see subsection 3.08(2).
approved legal personal representative—see subsection 10.03(4).
average BSWATR assessed rate—see section 3.24.
BSWATR means a Business Services Wage Assessment Tool Report which records a person's BSWAT assessment.
child welfare agency—see subsection 8.03(2).
conflict of interest—see subsection 7.02(12).
court-appointed decision-maker: a person is a court-appointed decision-maker in relation to a participantif the person, under a law of the Commonwealth, a State or a Territory:
(a)has guardianship of the participant; or
(b)is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee.
eligible financial year—see section 3.02.
eligible period—see section 3.02.
financial counselling certificate means a certificate that complies with section 37 of the Act.
financial year means a period of 12 months starting on 1 July.
legal advice certificate means a certificate that complies with section 36 of the Act.
participant-appointed decision-maker: a person is a participant-appointed decision-maker in relation to a participant if the participant has entered into a formal arrangement with the person under which the person is able to make a decision on the participant’s behalf (for example, an enduring power of attorney, an advance health directive or appointment as an enduring guardian under State or Territory law).
recipient agency—see subsection 8.04(2).
relative—see subsection 7.03(3).
Note: Pursuant to paragraph 13(1)(b) of the Legislative Instruments Act 2003, expressions used in these rules have the same meaning as in the Act. For example, the following words are defined by the Act:
Australian Disability Enterprise
BSWAT
BSWAT assessment
centrelink program
eligible day
legal practitioner
nominee
spouse of a person includes a de facto partner of the person.
training wage determination means a determination made under Part 5 of Chapter 3.
(2)In these rules, a reference to a person's centrelink data means data about that person held for the purposes of a centrelink program.
(3)In these rules, a reference to a person's CRS data means data held about that person for the purposes of administration of the BSWAT by CRS Australia.
1.04Reference to things being done orally or in writing
A reference in these rules to something being done orally or in writing means that the thing may be done:
(a)by telephone by calling the Department on 1800 799 515;
(b)by email to the Department at [email protected]; or
(c)by post by writing to the Department at the following address:
Department of Social Services
BSWAT Payment Scheme
GPO Box 9820
Hobart TAS 7001
1.05Words relating to legal practices
In these rules, the phrases law firm, multidisciplinary partnership, and incorporated legal practice have the meaning given to them by the Legal Profession Uniform Law which is Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria.
Chapter 2—Eligibility and applications
Part 1—Eligibility
2.01Evidence of eligibility—intellectual impairment
The evidence needed to establish that a person met the condition in paragraph 6(2)(a) of the Act for any eligible day is:
(a)if the person was in receipt of a disability support pension because of an intellectual impairment between 1 January 2004 and 31 January 2015—evidence that the person received a disability support pension because of an intellectual impairment on at least one day between those dates; or
(b)if the person was not in receipt of a disability support pension because of an intellectual impairment on any day between 1 January 2004 and 31 January 2015:
(i)information contained in the person's centrelink data which confirms that the person has an intellectual impairment; or
(ii)a document signed by a medical practitioner, clinical psychologist or educational institution which certifies that, in the opinion of the author, the person has an intellectual impairment.
Note: The definition of intellectual impairment is in section 7 of the Act and includes an intellectual disability, autism spectrum disorder, dementia and impaired intellectual functioning as a consequence of an acquired brain injury.
Part 2—Applications
2.02Lodging applications
For paragraph 15(2)(b) of the Act, a person may lodge an application for the BSWAT payment scheme:
(a)by posting the application to the Department at the address specified in paragraph 1.04(c); or
(b)electronically in the manner notified by the Department on its website.
Chapter 3—Calculating the payment amount
Part 1—Outline and general concepts
3.01Simplified outline
The following is a simplified outline of this Chapter.
This Chapter sets out how to calculate the payment amount for a person. It provides both the method and the evidence required to calculate a payment amount.
First, work out the amount the person was actually paid by an ADE using the steps in Part 2. Then, work out the amount the person would have been paid had the wage been calculated using only the productivity-scored component of the BSWAT using the steps in Part 3. Finally, work out the difference between the two amounts and apply the steps in Part 4 to calculate the payment amount. The steps in Part 4 also deal with taxation.
3.02What is an eligible financial year and eligible period?
(1)An eligible financial year for a person is a financial year in which there is an eligible day for the person.
(2)An eligible period for a person is the person's normal pay period in which there was an eligible day for the person.
(3) For the purposes of subsection (2):
(a)the evidence that may be used to determine a person's normal pay period is the evidence mentioned in the table; and
(b)the evidence in the table is in descending order of priority; and
(c)a person making a decision or exercising a power under the Act or these rules is not under any obligation to request information in order to obtain evidence which is higher in the table but may do so.
Note: The Secretary may request further information under sections 68 and 69 of the Act.
Column 1
ItemColumn 2
Prescribed evidence1 Payslip or other document from the ADE verifying the number of hours worked
2 If the centrelink data records a reporting period used by Centrelink in relation to the person, the information recorded in the person's centrelink data 3 If the centrelink data does not record a reporting period used by Centrelink in relation to the person, and the person's CRS data records information in relation to the interval at which the person is normally paid, the information recorded in the person's CRS data 4 If the information recorded in the person's CRS data does not record information in relation to the interval at which the person is normally paid, and other data records such information, the information recorded in the other data
3.03What happens if an eligible period straddles two eligible financial years?
(1)This section sets out what to do if some days in an eligible period are in one eligible financial year (the first financial year) and some days are in the next eligible financial year (the second financial year).
(2)First, any calculation in this Chapter is to be performed as if all days in the eligible period fall within one eligible financial year.
(3)Then, work out the fraction of days of the eligible period falling in the first financial year and the fraction of days of the eligible period falling in the second financial year.
(4)Finally, apportion the amount worked out in accordance with subsection (2) to the first financial year and the second financial year according to the fractions worked out in subsection (3).
3.04Decimal places
In this Chapter, all amounts are to be calculated to three or more decimal places other than the calculation in section 3.19.
Part 2—Working out the actual wage
3.05Actual wage to be worked out in accordance with this Part
For subsection 8(5) of the Act, a person's actual wage is worked out in accordance with this Part.
3.06Step 1—Determine the person's gross pay for each eligible period
(1)For each eligible period, determine the before-tax salary that was paid or was payable by an ADE to the person in respect of employment in that period.
Note: If a wage was not paid or payable by an ADE in respect of a period, that period is not an eligible period. See section 3.02.
(2)For section 11 of the Act:
(a)the evidence prescribed for the purposes of subsection (1) is the evidence mentioned in the table; and
(b)the evidence in the table is in descending order of priority; and
(c)a person making a decision or exercising a power under the Act or these rules is not under any obligation to request information in order to obtain evidence which is higher in the table but may do so.
Note: The Secretary may request further information under sections 68 and 69 of the Act.
Column 1
ItemColumn 2
Prescribed evidence1 Payslip or other document from the ADE verifying the before-tax salary for the eligible period 2 Information recorded in the person's centrelink data
3.07Step 2—Determine the number of hours the person worked in each eligible period
(1)For each eligible period, determine the number of hours that the person worked at an ADE.
(2)For section 11 of the Act:
(a)the evidence prescribed for the purposes of subsection (1) is the evidence mentioned in the table; and
(b)the evidence in the table is in descending order of priority; and
(c)a person making a decision or exercising a power under the Act or these rules is not under any obligation to request information in order to obtain evidence which is higher in the table but may do so.
Note: The Secretary may request further information under sections 68 and 69 of the Act.
Column 1
ItemColumn 2
Prescribed evidence1 Payslip or other document from the ADE verifying the number of hours worked 2 If the centrelink data records the number of hours the person worked at an ADE in the eligible period and that figure is equal to or more than 16 hours, the information recorded in the person's centrelink data 3 If the centrelink data does not record the number of hours the person worked at an ADE in the eligible period or that figure is less than 16 hours—the information recorded in the person's CRS data
3.08Step 3—Determine the BSWATR assessed rate for each eligible period
(1)For each eligible period, the BSWATR assessed rate is:
(a)if the national minimum wage was increased after the date of the applicable BSWATR in the relevant financial year—the assessed wage shown in the applicable BSWATR as adjusted for the national minimum wage increase from the date of that increase;
(b)if there is no BSWATR applicable to any of the days in the eligible period because the person was paid a training wage while waiting for a BSWAT assessment to be completed and a BSWAT assessment was never completed in relation to the person—the average BSWATR assessed rate specified in the applicable training wage determination made under Part 5; or
(c)in all other cases—the assessed wage shown in the applicable BSWATR.
(2)The applicable BSWATR for a person for an eligible period is:
(a)if there is one BSWATR for the person which is applicable to all of the days in the eligible period—that BSWATR;
(b)if there is more than one BSWATR applicable to an eligible period—the BSWATR which shows the highest assessed wage; or
(c)if there is no BSWATR applicable to any of the days in the eligible period because the person was paid a training wage while waiting for a BSWAT assessment to be completed, and a BSWAT assessment was ultimately completed in relation to the person—the BSWATR which records the person's first BSWAT assessment.
(3)In making a determination of the payment amount for a person under section 17 of the Act, the Secretary may presume that the person was employed by the relevant ADE and awaiting a BSWAT assessment for a period of 180 days, unless otherwise indicated by evidence.
3.09Step 4—Work out the person's actual wage for each eligible period
A person's actual wage for an eligible period is the greater of:
(a)the amount the person was paid as determined in Step 1 (section 3.06); and
(b)the amount worked out by multiplying the BSWATR assessed rate determined in Step 3 by the number of hours worked determined in Step 2 (section 3.07).
Part 3—Working out the productivity-scored wage
3.10How to work out a person's productivity-scored wage
(1)For subsection 8(5) of the Act, a person's productivity-scored wage is worked out in accordance with the steps set out in this Part.
(2)If there is no BSWATR applicable to any of the days in the eligible period because the person was paid a training wage while waiting for a BSWAT assessment to be completed, and a BSWAT assessment was never completed in relation to the person, skip Steps 1 to 3 and go straight to Step 4.
3.11Step 1—Determine the BSWATR award rate
For each eligible period, the BSWATR award rate is:
(a)if the national minimum wage was increased after the date of the applicable BSWATR in the relevant eligible financial year—the hourly award rate shown in the applicable BSWATR as adjusted for the national minimum wage increase from the date of that increase; or
(b)in all other cases—the hourly award rate shown in the applicable BSWATR.
3.12Step 2—Determine the BSWATR productivity component percentage for each eligible period
For each eligible period, the BSWATR productivity component percentage is the productivity score (expressed as a percentage) shown in the applicable BSWATR.
3.13Step 3—Work out the person's productivity-scored rate for the eligible period
The person's productivity-scored rate for the eligible period is determined by multiplying the rate determined in Step 1 (section 3.11) by the percentage determined in Step 2 (section 3.12).
3.14Step 4—Work out the person's productivity-scored wage for each eligible period
For each eligible period, the productivity-scored wage of the person is the amount worked out by multiplying:
(a)if there is a BSWATR applicable to any of the days in the eligible period—the following two amounts:
(i)the hours worked determined in accordance with section 3.07; and
(ii)the person's productivity-scored rate determined in accordance with section 3.13.
(b)if there is no BSWATR applicable to any of the days in the eligible period because the person was paid a training wage while waiting for a BSWAT assessment to be completed and a BSWAT assessment was ultimately completed in relation to the person—the following two amounts:
(i)the hours worked determined in accordance with section 3.07; and
(ii)the person's productivity-scored rate determined in accordance with section 3.13.
(c)if there is no BSWATR applicable to any of the days in the eligible period because the person was paid a training wage while waiting for a BSWAT assessment to be completed and a BSWAT assessment was never completed in relation to the person—the following two amounts:
(i)the hours worked determined in accordance with section 3.07; and
(ii)the average productivity-scored wage specified in the applicable training wage determination made under Part 5.
Part 4—Working out the payment amount
3.15Payment amount to be worked out in accordance with this Part
For subsection 8(1) of the Act, the payment amount for a person is worked out in accordance with this Part.
3.16Step 1—Determine the excess amount for each eligible period
(1)If the actual wage for an eligible period (worked out in accordance with section 3.09) is more than the productivity-scored wage for that period (worked out in accordance with section 3.14), the excess amount for the period is nil.
(2)In all other cases, the excess amount is the amount worked out by subtracting the actual wage for an eligible period (worked out in accordance with section 3.09) from the productivity-scored wage for that period (worked out in accordance with section 3.14).
3.17Step 2—Determine the excess amount for each eligible financial year
Add up the excess amount for each eligible period in an eligible financial year to obtain the excess amount for each eligible financial year.
3.18Step 3—Index the amount for each eligible financial year to calculate the total excess amount
(1)Apply subsection 8A(1) of the Act to the amount for each eligible financial year as if the excess amount for each eligible financial year were an annual portion.
(2)The result from Step 5 from the method statement to subsection 8A(1) of the Act is the total excess amount.
3.19Step 4—Work out the payment amount
(1)Multiply the total excess amount for the person worked out in Step 3 (section 3.18) by 0.7.
Note: Paragraph 8(3)(a) of the Act provides that the amount a person should receive should broadly reflect the amount that is 70% of the excess of a productivity-scored wage over an actual wage indexed to reflect compounding increases in the Consumer Price Index since the financial years in which eligible days occurred.
(2)The before-tax payment amount for the person is the amount worked out in subsection (1) rounded to the nearest dollar, unless:
(a)the amount is less than $1—in which case the before-tax payment amount for the person is nil; or
(b)the amount is more than $1, but less than $100—in which case the before-tax payment amount for the person is $100.
Note: This provision of the Rules applies the formula in subsection 8(4) of the Act.
(3)If the person would not be required to pay tax on the before-tax payment amount worked out in subsection (2), the before-tax payment amount is the payment amount.
(4)If the person would be required to pay tax on the before-tax payment amount worked out in subsection (2), the payment amount is the before-tax payment amount plus an amount so that the payment amount is equal to the before-tax payment amount which the person would have been entitled to receive had the payment amount been free and clear of tax.
3.20Calculating the amount on account of tax
(1)In order to work out whether the person would be required to pay tax on the before-tax payment amount, and if so, the amount of that tax, all of the following assumptions must be made:
(a)that the person is single with no dependents;
(b)that the amount that the person earned in the 2015-2016 financial year as recorded in the person's centrelink or CRS data (whichever is higher) is the amount that the person earned in the 2016-2017 financial year;
(c)that the amount that the person earned in the 2016-2017 financial year as recorded in the person's centrelink or CRS data (whichever is higher) is the amount that the person earned in the 2017-2018 financial year;
(d)that the amount that the person earned in the 2017-2018 financial year as recorded in the person's centrelink or CRS data (whichever is higher) is the amount that the person earned in the 2018-2019 financial year; and
(e)that the person is not eligible for the Senior Australians and Pensioners Tax Offset.
(2)If a person makes an application under the BSWAT scheme on behalf of a deceased person (in accordance with Chapter 10 of these Rules), in order to work out whether the person would be required to pay tax on the before-tax payment amount and, if so, the amount of that tax, it is necessary to determine the tax liability (if any) of the deceased estate.
(3)For the purposes of subsection (2), in order to work out the tax liability (if any) of the deceased estate, the following assumptions must be made:
(a)section 99 of the Income Tax Assessment Act 1936 (ITAA) applies to the deceased estate; and
(b)the deceased estate has not received and will not receive any other income in the income tax year that any payment amount was made to the deceased person under the Act or these rules.
Part 5—Training wage determinations
3.21Purpose
The purpose of this Part is to provide a mechanism for calculation of payment amounts for people who were paid a training wage while waiting for a BSWAT assessment to be completed and in relation to whom a BSWAT assessment was never completed.
3.22Making a training wage determination
(1)The Secretary may make a training wage determination which applies to a particular ADE in a particular financial year.
(2)A training wage determination must specify:
(a)the average BSWATR assessed rate for an ADE in a financial year calculated in accordance with section 3.24;
(b)the average BSWATR productivity-scored rate for an ADE in a financial year calculated in accordance with section 3.25.
(3)The Secretary must publish training wage determinations made under this Part on the Department's website.
3.23When must the Secretary make a training wage determination
The Secretary must make a training wage determination for an ADE for a financial year if such a determination is required under paragraph 3.08(2)(c) or subsection 3.14(2).
3.24Average BSWATR assessed rate
The Secretary is to determine the average BSWATR assessed rate for an ADE for a financial year by averaging the following amounts:
(a)the average assessed wage of all employees at the ADE whose wages were assessed with the BSWAT as at 20 September of the eligible financial year (or the next business day), with wages of employees adjusted for any national minimum wage increase from the date of that increase; and
(b)the average assessed wage of all employees at the ADE whose wages were assessed with the BSWAT as at 20 March of the eligible financial year (or the next business day), with wages of employees adjusted for any national minimum wage increase from the date of that increase.
3.25Average BSWATR productivity-scored rate
(1)The Secretary is to determine the average BSWATR productivity scored rate for an ADE for a financial year in accordance with this section.
(2)First, work out the average BSWATR award rate by averaging the following amounts:
(a)the average hourly award rate shown in the applicable BSWATR of all employees at the ADE whose wages were assessed with the BSWAT as at 20 September of the eligible financial year (or the next business day), with rates for employees adjusted for any national minimum wage increase from the date of that increase; and
(b)the average hourly award rate shown in the applicable BSWATR of all employees at the ADE whose wages were assessed with the BSWAT as at 20 March of the eligible financial year (or the next business day), with rates for employees adjusted for any national minimum wage increase from the date of that increase.
(3)Secondly, work out the average BSWATR productivity component percentage by averaging the following amounts:
(a)the average BSWATR productivity score (expressed as a percentage) as shown in the BSWATR of all employees at the ADE whose wages were assessed with the BSWAT as at 20 September of the eligible financial year (or the next business day); and
(b)the average BSWATR productivity score (expressed as a percentage) as shown in the BSWATR of all employees at the ADE whose wages were assessed with the BSWAT as at 20 March of the eligible financial year (or the next business day).
(4)Finally, multiply the amount obtained in subsection (2) by the amount obtained in subsection (3) to get the average BSWATR productivity scored rate.
Chapter 4—Extensions of time and acceptance
4.01Extensions of time for acceptance period and review period
(1)For subsection 22(1) of the Act, a person may request an extension to the acceptance period for an offer or the period for applying for review orally or in writing.
(2)A request must state that an extension is sought and contain sufficient information to enable the Department to identify the person making the request.
4.02Lodging an acceptance
For paragraph 35(2)(b) of the Act, an acceptance must be lodged by posting the signed original document to the address specified in paragraph 1.04(c).
Chapter 5—Internal review
5.01Applications for internal review
(1)For subsection 24(4) of the Act, a person may apply for internal review orally or in writing.
(2)An application must state why the person considers that the decision was wrong and that a review is sought.
(3)An application must also include sufficient information to enable the Department to identify the person and the decision in relation to which internal review is sought.
5.02Withdrawal of application for internal review
(1)For subsection 25(1) of the Act, a person may withdraw an application for internal review orally or in writing.
(2)The withdrawal must include sufficient information to enable the Department to identify the person and the application for internal review which is being withdrawn.
Chapter 6—External review
Part 1—Applications and withdrawals
6.01Application for external review
(1)For subsection 26(4) of the Act, a person may apply for external review orally or in writing.
(2)An application must state why the person considers that the decision was wrong and that a review is sought.
(3)An application must also include sufficient information to enable the Department to identify the person and the decision in relation to which external review is sought.
6.02Withdrawal of application for external review
(1)For subsection 31(1) of the Act, a person may withdraw an application for external review orally or in writing.
(2)The withdrawal must include sufficient information to enable the Department to identify the person and the application for external review which is being withdrawn.
Part 2—Remuneration of external reviewers
6.03Remuneration payable to external reviewers
For subsection 27(4) of the Act, a person appointed as an external reviewer is entitled to remuneration calculated in accordance with this Part.
6.04Where the external reviewer has a Commonwealth rate
If a person appointed as an external reviewer has an approved rate determined pursuant to Appendix D of the Legal Services Directions 2005, the person is entitled to be paid his or her approved hourly and daily rate.
6.05Where the external reviewer does not have a Commonwealth rate
(1)This section applies if a person appointed as an external reviewer does not have an approved rate determined pursuant to Appendix D of the Legal Services Directions 2005.
(2)The person's daily rate is the amount specified in Column 3 of the table which corresponds to the person's experience in Column 2.
Column 1
ItemColumn 2
ExperienceColumn 3
Daily rate1 The person has been a Justice of the High Court or a judge of another federal court or of a court of a State or Territory $4,500 2 Item 1 does not apply to the person and the person has been enrolled for 20 years or more $4,000 3 Item 1 does not apply to the person and the person has been enrolled for 15 years or more but less than 20 years $3,000 4 Item 1 does not apply to the person and the person has been enrolled for 10 years or more but less than 15 years $2,500
(3)The person's hourly rate is one-sixth of the person's daily rate.
6.06Hourly and daily rates
(1)If a person appointed as an external reviewer works more than six hours in any day, he or she is entitled to the daily rate for that day.
(2)If a person appointed as an external reviewer works less than six hours in any day, he or she is entitled to the hourly rate for each of the hours he or she worked on that day.
6.07Rates are inclusive of GST
A person appointed as an external reviewer is not entitled to any additional amount on account of GST.
Part 3—External review process
6.08Requirements for external review
For subsection 28(2) of the Act, an external reviewer must conduct the review on the papers and without an oral hearing.
Chapter 7—Nominees
Part 1—Functions and responsibilities of nominees
7.01Modification of duty in relation to participants who cannot formulate preferences
(1)For subsection 46(4) of the Act, if the participant cannot formulate preferences for the purposes of subsection 46(1) of the Act, it is the duty of a nominee to ascertain what the participant would likely want.
(2)A nominee may ascertain what the participant would likely want by doing any or all of the following things:
(a)considering any previous views or wishes expressed by the participant;
(b)consulting with any court-appointed decision-maker;
(c)consulting with any participant-appointed decision-maker; or
(d)consulting with family members, carers or informal supporters of the participant.
7.02Other duties
(1)For paragraph 46(5) of the Act, this section prescribes other duties of a nominee.
(2)A nominee must support decision-making by the participant personally.
(3)A nominee must have regard, and give appropriate weight, to the views of the participant.
(4)A nominee must become sufficiently familiar with the financial affairs of the participant so that the nominee can discharge his or her duties under the Act and these rules.
(5)A nominee must avoid or manage any conflict of interest in relation to the nominee and the participant.
(6)If more than one person is appointed as nominee, a further duty of each of them is to consult with the others before doing any act under, or for the purposes of, the Act.
(7)A nominee must provide support to the participant to express their preferences in making decisions in respect of accepting or declining an offer from the BSWAT payment scheme.
(8)A nominee must communicate to the participant the process, decision and implications of decisions relating to the BSWAT payment scheme.
(9)A nominee must promote and safeguard the participant's human rights and act in the way least restrictive of those rights when making decisions relating to the BSWAT payment scheme.
(10)A nominee must recognise and respect the cultural and linguistic circumstances of the participant and ensure an appropriate form of communication for the purposes of communicating about the BSWAT payment scheme is used.
(11)A nominee must inform the Secretary of the following circumstances:
(a)the nominee has a conviction for an offence under a law of the Commonwealth, a State or Territory involving abuse, violence or fraud;
(b)the nominee has, or is likely to acquire, a conflict of interest in relation to the nominee and the participant; or
(c)the nominee believes that he or she cannot comply with his or her obligations under the Act and these rules.
(12)A conflict of interest in relation to a nominee and a participant, means any conflict between the interests of the nominee (or an employee of the nominee) and the interests of the participant, whether pecuniary or otherwise, that would impact on the nominee's ability to carry out their role as a nominee.
Part 2—Appointment and cancellation or suspension of appointment
7.03Persons who must not be appointed as nominees
(1)For paragraph 51(5)(a) of the Act, the following persons are persons who must not be appointed as nominees:
(a)a person under 18 years of age;
(b)a person employed by the Department;
(c)a recipient of a grant made under Part II of the Disability Services Act 1986 or an employee of such a recipient;
(d)a person who the Secretary has decided must sign a nominee declaration in accordance with section 7.04 but who has not done so.
(2)However, a person mentioned in paragraph (b) or (c) of subsection (1) may be appointed as a nominee in relation to a participant if:
(a)the person is a relative of the participant; or
(b)the person is a court-appointed decision-maker in relation to the participant; or
(c)the person is a participant-appointed decision-maker in relation to the participant; or
(d)the person is a nominee in relation to the participant for the purposes of the social security law and has powers and responsibilities relevant to the duties of a nominee under the Act and these rules; or
(e)the Secretary determines that there are circumstances which make it inappropriate for paragraph (b) or (c) of subsection (1) to apply in the case of the person and the participant.
(3)In these rules, relative of a participant means any of the following:
(a)the spouse of the participant;
(b)a parent or remoter lineal ancestor of the participant or of the participant's spouse;
(c)a child or remoter lineal descendant of the participant or of the participant's spouse;
(d)a brother or sister of the participant or of the participant's spouse;
(e)an uncle, aunt, nephew or niece of the participant or of the participant's spouse;
(f)the spouse of a person specified in paragraph (b), (c), (d) or (e);
(g)a person who the Secretary is satisfied is in a culturally recognised relationship with the participant.
7.04Nominee declaration
(1)The Secretary may decide that a person must make a declaration in accordance with this section.
(2)A declaration complies with this section if it is made in the approved form and is accompanied by such information and documents as are specified in the approved form.
7.05Criteria and matters for considering appointment
(1)For paragraph 51(5)(b) of the Act, the following criteria and matters are prescribed as criteria and matters which the Secretary is to apply, or have regard to, in considering the appointment of a nominee:
(a)the presumption that, if the participant has a court-appointed decision-maker or a participant-appointed decision-maker, and the powers and responsibilities of that person are comparable with those of a nominee, that person should be appointed as nominee;
(b)the degree to which the person:
(i)knows, and is in a relationship of trust with, the participant; and
(ii)understands and is committed to performing the duties of a nominee; and
(iii)is sensitive to the cultural and linguistic circumstances of the participant; and
(iv)is familiar with, and able to work with, any communication system or other technological supports of the participant;
(c)the degree to which the person is willing and able to:
(i)act in conjunction with other representatives and supporters of, and carers for, the participant to maximise the participant’s wellbeing; and
(ii)undertake the kinds of activities that a nominee is required to undertake in performing their functions under the Act; and
(iii)involve the participant in decision-making processes; and
(iv)assist the participant to make decisions for himself or herself; and
(v)ascertain what judgements and decisions the participant would have made for himself or herself;
(d)the desirability of preserving family relationships and informal support networks of the participant;
(e)any existing arrangements that are in place between the person and the participant;
(f)any relevant views of:
(i)carers who assist the participant to manage their day-to-day activities and make decisions; and
(ii)other persons who provide support to the participant;
(g)any relevant conviction for an offence under Commonwealth, State or Territory law;
(h)any conflict of interest in relation to the person and the participant;
(i)whether there is a court-appointed decision-maker, and if so the views of that person;
(j)whether there is a participant-appointed decision-maker, and if so the views of that person; and
(k)whether the participant already has a nominee appointed under the Act.
Note: The Secretary may appoint more than one person to be a nominee of a participant for the purposes of the Act: see subsection 50(6) of the Act.
(2)To avoid doubt, the Secretary is not required to make inquiries in respect of any matter specified in subsection (1).
7.06Requirement to consult
For paragraph 56(a) of the Act, the Secretary must consult, in writing, with any court-appointed decision-maker or participant-appointed decision-maker in relation to any appointment of a nominee.
7.07Cancellation or suspension of appointment of a nominee
For paragraph 56(b) of the Act, when cancelling or suspending the appointment of a nominee, the Secretary, must have regard to the following:
(a)any breach of a duty the nominee has to the participant under the Act or these rules;
(b)the previous conduct of the nominee in relation to the participant;
(c)the views of the participant, and any person who cares for or supports the participant;
(d)the impact on the participant of any cancellation or suspension of appointment;
(e)whether the nominee has been convicted of an offence under Commonwealth, State or Territory law that is reasonably likely to compromise the ability of the person to act as nominee; and
(f)whether the participant still needs a nominee.
Part 3—Review of certain decisions about nominees
7.08Applications for review
(1)For subsection 59(3) of the Act, an application for review of decisions about nominees may be made orally or in writing.
(2)An application for review must contain sufficient information to enable the Department to identify the decision in respect of which review is sought.
7.09Withdrawal of application for review
(1)For subsection 60(1) of the Act, a person may withdraw an application for review orally or in writing.
(2)The withdrawal must include sufficient information to enable the Department to identify the application for review which is being withdrawn.
Chapter 8—Disclosure of protected information
Part 1—Purpose and outline
8.01Purpose of this Chapter
(1)This Chapter contains rules for the purposes of section 82 of the Act.
(2)Part 2 of this Chapter contains the rules with which the Secretary must comply in making disclosures in the public interest under paragraph 81(1)(a) of the Act.
(3)Part 3 of this Chapter contains the rules with which the Secretary must comply in making disclosures to other agencies under sub-paragraph 81(1)(b)(i) of the Act.
Part 2—Rules for the purposes of making public interest certificates
8.02When a public interest certificate may be given
The Secretary may only certify that it is necessary in the public interest for protected information to be disclosed under paragraph 81(1)(a) if the Secretary is satisfied that:
(a)the information cannot reasonably be obtained from a source other than the Department; and
(b)the recipient:
(i)has a genuine and legitimate interest in the information in light of the purpose for which it is to be disclosed; or
(ii)is a Minister.
8.03Secretary must consider disclosure principles
(1)In exercising the Secretary's power under paragraph 81(1)(a), the Secretary must consider the principle that protected information should ordinarily only be disclosed in a circumstance identified in the table to this section.
Column 1
ItemColumn 2
Circumstance in which protected information may be disclosed1 Disclosure is reasonably necessary to prevent, or lessen, a threat to the life, health, welfare or safety of any person, or to public health or safety. 2 Disclosure is reasonably necessary for the enforcement of the criminal law or a law imposing a pecuniary penalty, or for the protection of the public revenue. 3 Disclosure is reasonably necessary to brief a Minister about:
(a) complaints or issues raised by or on behalf of a person with the Minister so that the Minister can respond to the complaints or issues; or
(b) a meeting or forum that the Minister is to attend; or
(c) issues raised or proposed to be raised publicly by or on behalf of the person to whom the protected information relates so that the Minister can respond by correcting a mistake of fact, a misleading perception or impression, or a misleading statement; or
(d) the operation of the BSWAT payment scheme.4 Disclosure is reasonably necessary to enable any person or body to locate a person who has been reported as missing. 5 Disclosure is reasonably necessary to:
(a) assist a court, coronial enquiry, Royal Commission, department, or any other authority of the Commonwealth, a State or Territory in relation to the death of the person; or
(b) help a person locate a relative or beneficiary of a deceased person; or
(c) help an individual or authority responsible for the administration of the estate of a deceased person in relation to the administration of the estate of the deceased person.6 Disclosure is reasonably necessary for the establishment, exercise or defence of a legal or equitable claim. 7 Disclosure is to a child welfare agency and is reasonably necessary in order for a child protection agency to contact the parent or relative of a child or to assist a child welfare agency to carry out its responsibilities relating to the safety, welfare or wellbeing of a child. 8 Disclosure is reasonably necessary for the purposes of research or analysis into any of the following:
(a) calculation and payment of wages using the BSWAT; or;
(b) the management, operation or administration of the Act or these rules.
(2)In these rules, child welfare agency means an agency of the Commonwealth or of a State or Territory that has responsibilities relating to the safety, welfare or care of children.
Part 3—Rules for the purposes of disclosures to other agencies
8.04When disclosures may be made to other agencies
(1)The Secretary may only disclose protected information under sub-paragraph 81(1)(b)(i) of the Act to a recipient agency if:
(a)the recipient agency requests it for a purpose related to the functions of the recipient agency; or
(b)the Secretary considers that it is necessary to disclose the protected information in order for the recipient agency to discharge its functions in relation to the person to whom the information relates.
(2)In these rules, recipient agency means the Secretary of a Department of State of the Commonwealth or the head of an authority of the Commonwealth.
Chapter 9—Legal and financial counselling services
Part 1—General
9.01Purpose and simplified outline of this Chapter
(1)The purpose of this Chapter is to give effect to some of the Commonwealth's functions and powers under section 98A of the Act.
(2)The following is a simplified outline of this Chapter.
Eligible advisers can apply to the Secretary to be included on a published list of people who are interested in providing legal advice certificates or financial counselling certificates. Legal practitioners (and legal practices) are eligible advisers. Financial counsellors who receive funding from a local or State government, or the Commonwealth, are also eligible advisers.
Eligible advisers can also make claims for payments from the Secretary for providing services in relation to a legal advice certificate or financial counselling certificate.
9.02Financial counsellors
For subsection 37(2) of the Act, the associations of financial counsellors identified in the table are prescribed.
Column 1
ItemColumn 2
Prescribed financial counselling associations1 Financial Counselling Tasmania 2 Financial and Consumer Rights Council 3 Financial Counsellors Association of New South Wales 4 Financial Counsellors Association of Queensland 5 Money Workers Association of the NT 6 Financial Counsellors ACT 7 Financial Counsellors Association of Western Australia 8 South Australian Financial Counsellors' Association
9.03Meaning of eligible adviser
In these rules, eligible adviser means any of the following:
(a) a legal practitioner;
(b) a law firm;
(c) a multidisciplinary partnership;
(d)an incorporated legal practice;
(e)a financial counsellor;
(f)an organisation which:
(i)employs at least one financial counsellor; and
(ii)is established to provide financial counselling services.
Part 2—Publication scheme
9.04Secretary to establish register of eligible advisers
(1)The Secretary must establish a register of eligible advisers who have applied to be included on the register.
(2)The Secretary must publish the register on the Department's website.
9.05Eligible advisers may apply to be included in register
(1)An eligible adviser may apply in the approved form to be included in the register.
(2)An application must be accompanied by such information and documents as are specified in the approved form.
(3)The Secretary must include the details of the eligible adviser on the register unless the Secretary is satisfied that the eligible adviser is not a fit and proper person.
9.06Removal of eligible advisers from the register
The Secretary must remove a person's details from the register of eligible advisers if:
(a) the person requests, in writing, the Secretary to do so; or
(b) the Secretary is satisfied that the person is not an eligible adviser; or
(c) the Secretary is satisfied that the person is not a fit and proper person.
Part 3—Payments for services provided by an eligible adviser
9.07Eligible adviser may make a claim for payment
(1)An eligible adviser may make a claim in the approved form for a payment under this Part.
(2)The claim must include:
(a) the amount claimed; and
(b) a copy of the legal advice certificate or financial counselling certificate as applicable.
(3)A claim must be accompanied by such information and documents as are specified in the approved form.
9.08Maximum amount of a claim
General rule
(1)The maximum amount of a claim under section 9.07 is:
(a) in the case of a claim in respect of a financial counselling certificate—$435; or
(b)in the case of a claim in respect of a legal advice certificate—$850.
Where the nominee is a public trustee or public guardian
(2)However, if a nominee of the participant is a public trustee or public guardian (however described), the maximum amount of a claim in respect of a legal advice certificate is $290.
Maximum amounts of claim inclusive of GST
(3)The maximum amounts of a claim are inclusive of GST and an eligible adviser is not entitled to make any further claim on account of GST.
9.09Secretary to decide claim
(1)If the Secretary receives a claim for payment under section 9.07, the Secretary must decide whether to:
(a)approve payment of the claim; or
(b)refuse payment of the claim.
(2)In deciding whether to approve or refuse payment of the claim, the Secretary:
(a)must consider whether the amount claimed reflects the work undertaken; and
(b)may consider any other relevant matter.
(3)If the Secretary refuses payment of a claim, the Secretary must provide a statement to the person who made the claim setting out why the claim was refused and inviting the person to make another claim under section 9.07 addressing those issues.
Chapter 10—Deceased persons
10.01 Purpose of this Chapter
This Chapter is made under subsection 97(3) of the Act and sets out the way in which a person can apply to be recognised by the Secretary as a deceased person's legal personal representative.
10.02 Making an application to be a legal personal representative
(1)A person may apply to the Secretary in the approved form for a determination that the person is a legal personal representative for a deceased person for the purposes of the Act and these rules.
(2)An application must be accompanied by such information and documents as are specified in the approved form.
10.03 Secretary may determine that a person is a legal personal representative
(1)If the Secretary receives an application under section 10.02, the Secretary may determine that the person (the LPR applicant) is a legal personal representative for a deceased person (the deceased person) for the purposes of the Act and these rules if the Secretary is satisfied that:
(a)the LPR applicant is an executor of the deceased person's estate; or
(b)the LPR applicant is an administrator of the deceased person's estate; or
(c)the LPR applicant has control of the deceased person's estate under a law of the Commonwealth or of a state or territory; or
(d)there is no executor or administrator of the deceased person's estate and it is appropriate (having regard to the matters specified in subsection (3)) for the LPR applicant to be the deceased person's legal personal representative for the purposes of the Act and these rules.
(2)To avoid doubt, for the purposes of paragraph 10.03(1)(d), the Secretary is not required to make inquiries about whether there is an executor or administrator of the deceased person's estate.
(3)The matters to which the Secretary must have regard in making a decision under paragraph 10.03(1)(d) are:
(a)whether it is likely that a person would be appointed as an executor or administrator of the deceased person's estate within the three months following an application under section 10.02; and
(b)the size of the deceased person's estate; and
(c)whether the LPR applicant is a relative of the deceased person; and
(d)whether there is another person who would be a more appropriate legal personal representative for the deceased person; and
(e)whether, prior to the deceased person's death, the LPR applicant was:
(i)a nominee of the deceased person under the Act or for the purposes of the social security law; or
(ii)a court-appointed decision-maker in relation to the deceased person; or
(iii)a participant-appointed decision-maker in relation to the deceased person; and
(f)any other relevant matter.
(4)When the Secretary determines that a LPR applicant is the legal personal representative for a deceased person, the LPR applicant is an approved legal personal representative for that deceased person.
10.04 More than one LPR applicant for a deceased person
If the Secretary receives applications under section 10.02 from more than one LPR applicant in respect of the same deceased person, the Secretary may decline to consider the applications because the Secretary believes that the matter should be dealt with by a court.
10.05Cancellation of determination
(1)The Secretary may cancel a determination that a person is an approved legal personal representative if the Secretary is satisfied that:
(a)in the case of a determination made under paragraph 10.03(1)(d)—either:
(i)the Secretary is satisfied that there is another person who meets a description in paragraph 10.03(1)(a), (b) or (c); or
(ii)the Secretary is satisfied that it is no longer appropriate (having regard to the matters specified in subsection 10.03(3)) for the person to be the legal personal representative of the deceased person; or
(b)in any case—the Secretary is satisfied that the person has not acted or is not acting in the best interests of the estate of the deceased person.
(2)The Secretary may make a decision under subsection (1) without giving notice to any person affected by the decision or affording an opportunity to make submissions if the Secretary is satisfied that to do so is in the best interests of the estate of the deceased person.
(3)The Secretary may decline to consider whether to make a decision under subsection 10.05(1) because the Secretary believes that the matter should be dealt with by a court.
10.06 One approved legal personal representative
At any one time, there can only be one approved legal personal representative in respect of a deceased person.
10.07 Effect of making a payment
If the Secretary makes a payment under section 40 of the Act to an approved legal personal representative, no other person may make any claim or bring any action against the Secretary on account of any payment made under the Act to the approved legal personal representative.
Note to the Business Services Wage Assessment Tool Payment Scheme Rules 2015
The Business Services Wage Assessment Tool Payment Scheme Rules 2015 in force under section 102 of the Business Services Wage Assessment Tool Payment Scheme Act 2015 as shown in this compilation is amended as indicated in the Tables below.
Table of Instruments
| Title | Registration number | Date of registration | Date of | Application, saving or |
| Business Services Wage Assessment Tool Payment Scheme Rules 2015 Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2016 Business Services Wage Assessment Tool Payment Scheme Amendment Rules | F2015L01129 F2016L00508 F2016L01965 | 9 July 2015 14 April 2016 15 December 2016 | 10 July 2015 15 April 2016 16 December 2016 |
Table of Amendments
| ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted | ||
| Provision affected | How affected | |
| Subsection 1.03(1) Subsection 3.02(3) Section 3.05 Subsection 3.08(1) Paragraph 3.08(2)(c) Subsection 3.08(3) Section 3.10 Paragraph 3.11(a) Section 3.14 Subsection 3.19(1) Subsection 3.20(1) Subsection 3.20(2) Subsection 3.20(3) Part 5, Chapter 3 Subsection 8.03(1) Chapter 10 | am. F2016L00508; F2016L01965 ad. F2016L01965 am. F2016L01965 rs. F2016L01965 rs. F2016L01965 rs. F2016L01965 rs. F2016L01965 am. F2016L01965 rs. F2016L01965 rs. F2016L00508 rs. F2016L01965 ad. F2016L01965 ad. F2016L01965 ad. F2016L01965 am. F2016L00508 ad. F2016L00508 | |
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