Employment Services Act 1994 (Cth)
This compilation was prepared on 19 April 2001
taking into account amendments up to Act No. 10 of 2001
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra
Contents
This Act may be cited as the
Employment Services Act 1994 .
(1) This Chapter, Chapters 2 and 3, Part 4.6 and Chapter 5 commence on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act commence on a day to be fixed by Proclamation.
(3) If a provision referred to in subsection (2) does not commence under that subsection within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
Aim
(1) The aim of this Act is to promote full employment by providing employment services that are free of charge to job seekers.
Objects
(2) The objects of this Act are:
(a) to establish the Commonwealth Employment Service (see Chapter 2); and
(b) to establish Employment Assistance Australia (see Chapter 3); and
(c) to set up and regulate the case management system (see Chapter 4).
In this Act, unless the contrary intention appears:
accreditation means accreditation under the accreditation scheme.
accreditation scheme means the scheme in force under section 49.
accredited case manager means an entity accredited under the accreditation scheme.
authorised review officer means a person authorised under section 146.
Case Management Activity Agreement has the meaning given by section 38.
case management services has the meaning given by section 37.
case management system means the system under which case managers:
(a) provide case management services to people referred to them under Part 4.3; and
(b) perform functions conferred on case managers under this Act.
case manager means:
(a) Employment Assistance Australia; or
(b) a contracted case manager.
CES means the Commonwealth Employment Service established by section 8.
contracted case manager means an accredited case manager engaged under section 58.
document has the meaning given by section 5.
employee , in relation to the Services Delivery Agency, has the same meaning as in theCommonwealth Services Delivery Agency Act 1997 .
Employment Assistance Australia means the organisation established by section 18.
Employment Secretary means the Secretary to the Department.
entity means:
(a) an individual; or
(b) a body corporate; or
(c) a partnership; or
(d) an unincorporated association; or
(e) an authority of the Commonwealth, a State or a Territory; or
(f) a Department of the government of the Commonwealth, a State or a Territory.
ESRA means the Employment Services Regulatory Authority established by section 68.
ESRA Board means the Board of ESRA referred to in section 74.
ESRA Board member means a member of the ESRA Board.
ESRA Chairperson means the Chairperson of the ESRA Board referred to in section 74.
ESRA Chief Executive Officer means the Chief Executive Officer of ESRA referred to in section 91.
inspector means a person appointed as an inspector under section 131.
participant in the case management system has the meaning given by section 25.
service arrangements has the same meaning as in theCommonwealth Services Delivery Agency Act 1997 .
Services Delivery Agency means the Commonwealth Services Delivery Agency established by theCommonwealth Services Delivery Agency Act 1997 .
Social Security Secretary means the Secretary to the Department administering theSocial Security Act 1991 .
Basic meaning of document
(1) In this Act:
document means any record of information, and includes:
(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph.
Extended meaning of document
(2) A reference in this Act to a document includes a reference to:
(a) any part of the document; or
(b) any copy, reproduction or duplicate of the document or of any part of the document; or
(c) any part of such a copy, reproduction or duplicate.
For the purposes of this Act, a change in the composition of a partnership does not affect the continuity of the partnership.
(1) This Act binds the Crown in the right of the Commonwealth, of each of the States, of the Northern Territory and of the Australian Capital Territory .
(2) Nothing in this Act renders the Crown liable to be prosecuted for an offence.
There is to be, within the Department, a Commonwealth Employment Service.
(1) There is to be a National Director of the Commonwealth Employment Service.
(2) The Employment Secretary is to be the National Director.
For the purposes of this Act, anything done in the name of, or on behalf of, the Commonwealth Employment Service by an officer of the Department or by the Chief Executive Officer or an employee of the Services Delivery Agency is taken to have been done by the Commonwealth Employment Service.
The Minister may establish a national committee.
The function of the national committee established under section 11 is to advise the National Director of the CES on the operations of the Commonwealth Employment Service in Australia .
Provisions relating to the national committee
(1) This section applies to the national committee established under section 11.
Composition of the committee
(2) The committee consists of such members as are appointed by the Minister by written instrument.
Period of appointment
(3) A member of the committee holds office for such period as is specified in the instrument of appointment.
Resignation
(4) A member of the committee may resign from the committee by writing signed by him or her and sent to the Minister.
Termination of appointment
(5) The Minister may, at any time, terminate the appointment of a member of the committee.
The National Director of the CES may establish a committee for a specified area.
The function of a committee established under section 14 for an area is to advise the National Director of the CES about the following matters, to the extent to which they relate to the area:
(a) the creation of employment opportunities and training opportunities;
(b) increasing the responsiveness of the CES to regional labour markets;
(c) linking DEET programs with regional development.
For this purpose, a
DEET program is a program administered by the Department.
Committee to be established in accordance with guidelines
(1) The establishment of a committee under section 14 is to be in accordance with written guidelines formulated by the National Director of the CES. The guidelines may deal with, but are not limited to, the following matters:
(a) the appointment of members of the committee;
(b) the resignation of members of the committee;
(c) the termination of the appointment of members of the committee.
Composition of committee
(2) In formulating guidelines under subsection (1), the National Director of the CES is to have regard to the desirability of ensuring that, as far as practicable, the membership of each committee includes people with experience of, or expertise in, matters of concern to the following sectors:
(a) employers;
(b) trade unions or other organisations of employees;
(c) community organisations;
(d) regional organisations;
(e) the Commonwealth government and State and Territory governments;
(f) local government bodies;
(g) major providers of education or training.
When this section applies
(1) This section applies to a committee established under this Part.
Member to disclose pecuniary interests
(2) If a member of the committee has a direct or indirect pecuniary interest in a matter being considered by the committee, the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the committee. The disclosure must be recorded in the minutes of the meeting.
Member not to be present during deliberations unless committee otherwise determines
(3) A member who makes a disclosure under subsection (2) must not, unless the committee otherwise determines:
(a) be present during any deliberation of the committee with respect to that matter; or
(b) take any part in any decision of the committee with respect to that matter.
Member not to be present during deliberations about determinations under subsection (3)
(4) For the purposes of the making of a determination by the committee under subsection (3) in relation to a disclosure under subsection (2), the member who made the disclosure must not:
(a) be present during any deliberation of the committee for the purpose of making the determination; or
(b) take part in the making of the determination by the committee.
There is to be, within the Department, an organisation to be known as Employment Assistance Australia.
The functions of Employment Assistance Australia are:
(a) to provide case management services to participants in the case management system referred to it under Part 4.3; and
(b) to perform functions conferred on case managers under this Act.
Note: Employment Assistance Australia is a case manager—see the definition of
case manager in section 4.
(1) There is to be a National Director of Employment Assistance Australia.
(2) The Employment Secretary is to be the National Director.
For the purposes of this Act, anything done in the name of, or on behalf of, Employment Assistance Australia by an officer of the Department is taken to have been done by Employment Assistance Australia.
Functions
(1) The functions of ESRA include:
(a) monitoring the operations of Employment Assistance Australia; and
(b) making recommendations to the Minister about those operations.
Note:
ESRA means the Employment Services Regulatory Authority (see section 4).
Financial arrangements—recommendations
(2) Without limiting subsection (1), ESRA may make recommendations to the Minister about the payment arrangements relating to Employment Assistance Australia.
The object of this Chapter is to set up and regulate the case management system.
Note:
Case management system is defined by section 4.
The following is a simplified outline of this Chapter:
• people registered with the CES may become
participants in the case management system (Part 4.2)• the CES will refer participants in the case management system to
case managers (Part 4.3)• case managers provide
case management services to people referred to them•
contracted case managers areengaged to provide case management services (Part 4.5)• only
accredited case managers can be engaged to provide case management services (Part 4.5)• the
Employment Services Regulatory Authority (ESRA) is established to regulate the case management system (Part 4.6).
Determinations about participants—general
(1) The Minister may make a written determination that a person included in a specified class of persons becomes a participant in the case management system at a specified time if, at that time:
(a) persons included in that class are registered with the CES; or
(b) unemployment benefits (within the meaning of paragraph 51(xxiiiA) of the Constitution) are being provided by the Commonwealth to or in respect of persons included in that class.
A determination has effect accordingly.
Determinations about participants—special
(2) If the Employment Secretary is satisfied that there are special circumstances, the Employment Secretary may make a written determination that a specified person becomes a participant in the case management system at a specified time if, at that time:
(a) the person is registered with the CES; or
(b) unemployment benefits (within the meaning of paragraph 51(xxiiiA) of the Constitution) are being provided by the Commonwealth to or in respect of the person.
A determination has effect accordingly.
Registration with the CES
(3) For the purposes of this section, a person is registered with the CES if, and only if, the person is registered by the CES as being unemployed.
Disallowable instrument
(4) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901 .
Delegation
(5) The Employment Secretary may, by writing, delegate all or any of his or her powers under subsection (2) to an officer of the Department.
Person remains participant until terminating event happens
(1) If a person becomes a participant in the case management system, the person remains a participant in the case management system until a terminating event happens.
Note:
Terminating event is defined by subsections (2) and (3).
Determinations about terminating events
(2) The Minister may make a written determination that a specified event or circumstance is a terminating event for the purposes of subsection (1). A determination has effect accordingly.
Terminating event—Constitutional requirements
(3) A particular event or circumstance is a terminating event for the purposes of subsection (1) if a failure to make a determination under subsection (2) specifying the event or circumstance would result in the invalidity, in whole or in part, of this Act.
Note: Under paragraph 51(xxiiiA) of the Constitution, the Parliament may make laws with respect to the provision of unemployment benefits.
Cessation of participant status terminates referral to case manager
(4) If a person ceases to be a participant in the case management system, the cessation terminates any referral of the person to a case manager under Part 4.3.
Disallowable instrument
(5) A determination under subsection (2) is a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901 .
Notification and interview before a person becomes a participant
(1) If the CES forms the opinion that it is reasonably likely that a person will become a participant in the case management system on a particular day, the CES may, not earlier than 28 days before that day:
(a) notify the person (in writing or otherwise) of that opinion; and
(b) ask the person:
(i) to attend an interview with the CES; or
(ii) to take part in an interview with the CES by telephone, video‑link or similar means.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a written notice given under this subsection.
Notification and interview after a person becomes a participant
(2) If:
(a) a person has become a participant in the case management system; and
(b) the person has not already been interviewed under subsection (1) in connection with so becoming a participant; and
(c) the person has not been referred to a case manager at any time since so becoming a participant; and
(d) the CES becomes of the opinion that if:
(i) the CES were to ask the person to attend or take part in an interview with the CES under this subsection; and
(ii) the person were to attend or take part in the interview;
the person could reasonably be referred to a case manager within 24 days after the date of the interview;
the CES must:
(e) give the person a written notice stating that he or she has become a participant in the case management system; and
(f) ask the person:
(i) to attend an interview with the CES; or
(ii) to take part in an interview with the CES by telephone, video‑link or similar means.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a notice given under this subsection.
Further request for interview
(5) If:
(a) the CES asks a person to attend or take part in an interview under subsection (2) or under this subsection; and
(b) the person does not attend or take part in the interview, as the case requires; and
(c) the person is a participant in the case management system;
the CES may ask the person to attend or take part in another interview.
If a person refuses or fails to comply with a request under subsection 27(2) or (5) of this Act, section 630C of the
Social Security Act 1991 and section 114 of theStudent and Youth Assistance Act 1973 have effect, in relation to the person, as if:
(a) the conditions set out in paragraphs (1)(b), (c), (d) and (e) of each of those sections were satisfied; and
(b) the reference in subsection (2) of each of those sections to the requirement were a reference to the request.
Note: This means that newstart allowance or youth training allowance would cease to be payable to the person and an administrative breach rate reduction period would apply to the person unless the person had a reasonable excuse for not complying with the request.
When section applies
(1) This section applies to a person if the CES has asked the person to attend or take part in an interview under section 27.
Information to be provided by CES
(2) At or before the interview, the CES must:
(a) give the person such information about the case management system as ESRA approves in writing; and
(b) if the CES considers that the person could reasonably be referred to one of a number of case managers—tell the person that he or she may nominate a preferred case manager in accordance with subsection (3).
Nomination of preferred case manager
(3) The nomination of a preferred case manager must be:
(a) in writing; and
(b) given to the CES within 14 days after the date of the interview.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a nomination given under this subsection.
CES to refer person to case manager
(4) The CES must, within 24 days after the date of the interview, decide to refer the person to a specified case manager. The decision takes effect on the day on which the decision is made or the day on which the person becomes a participant in the case management system, whichever is later. However, the decision does not take effect if the person does not become a participant in the case management system within 28 days after the decision is made.
Matters to be taken into account by CES
(5) In making a decision under this section to refer the person to a case manager, the CES must:
(a) take into account the following matters:
(i) any nomination of a preferred case manager given by the person in accordance with subsection (3);
(ii) such other matters (if any) as are specified in a written determination made by the Minister for the purposes of this subsection;
(iii) such other matters (if any) as the CES considers appropriate; and
(b) give the greatest weight to the matter mentioned in subparagraph (a)(i).
Disallowable instrument
(6) A determination under subsection (5) is a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901 .
When section applies
(1) This section applies to a person:
(a) who is a participant in the case management system; and
(b) who has been referred to a case manager (the
original case manager ) under this Part.
CES may terminate referral to case manager
(2) The CES may decide to terminate the person’s referral to the original case manager.
Notification after decision to terminate
(3) As soon as practicable after the CES decides to terminate the person’s referral to the original case manager, the CES must give the person a written notice stating that the referral has been terminated.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a notice given under this subsection.
Procedure after termination—no waiting list
(4) If the CES is of the opinion that a person given a notice under subsection (3) could reasonably be referred to another case manager within 24 days after the day on which the notice is given to the person:
(a) the notice must contain a statement to the effect that:
(i) the CES proposes to refer the person to a new case manager; and
(ii) if the CES considers that the person could reasonably be referred to one of a number of other case managers—the person may nominate a preferred case manager in accordance with subsection 32(2); or
(b) the CES must ask the person:
(i) to attend an interview with the CES; or
(ii) to take part in an interview with the CES by telephone, video‑link or similar means.
Procedure after termination—waiting list
(5) If the CES is of the opinion that a person given a notice under subsection (3) could not reasonably be referred to another case manager within 24 days after the day (the
notice day ) on which the notice was given to the person:
(a) the notice must contain a statement to that effect; and
(b) if, on a day (the
later day ) later than the notice day, the CES becomes of the opinion that the person could reasonably be referred to a new case manager within 24 days after the later day—the CES must:
(i) give the person a written notice containing a statement to the effect that:
(A) the CES proposes to refer the person to a new case manager; and
(B) if the CES considers that the person could reasonably be referred to one of a number of other case managers—the person may nominate a preferred case manager in accordance with subsection 32(2); or
(ii) ask the person:
(A) to attend an interview with the CES; or
(B) to take part in an interview with the CES by telephone, video‑link or similar means.
Further requests for interview
(6) If:
(a) the CES asks a person to attend or take part in an interview under subsection (4) or (5) or under this subsection; and
(b) the person does not attend or take part in the interview, as the case requires; and
(c) the person is a participant in the case management system;
the CES may ask the person to attend or take part in another interview.
If a person refuses or fails to comply with a request under paragraph 30(4)(b), subparagraph 30(5)(b)(ii) or subsection 30(6) of this Act, section 630C of the
Social Security Act 1991 and section 114 of theStudent and Youth Assistance Act 1973 have effect, in relation to the person, as if:
(a) the conditions set out in paragraphs (1)(b), (c), (d) and (e) of each of those sections were satisfied; and
(b) the reference in subsection (2) of each of those sections to the requirement were a reference to the request.
Note: This means that newstart allowance or youth training allowance would cease to be payable to the person and an administrative breach rate reduction period would apply to the person unless the person had a reasonable excuse for not complying with the request.
When section applies
(1) This section applies to a person if the CES has given the person a notice, in accordance with paragraph 30(4)(a) or (5)(b), stating that it proposes to refer the person to a new case manager.
Nomination of preferred case manager
(2) If the notice states that the person may nominate a preferred case manager, the nomination must be:
(a) in writing; and
(b) given to the CES within 14 days after the day on which the notice was given to the person.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a nomination given under this subsection.
CES to refer person to case manager
(3) The CES must, within 24 days after the day on which the notice was given to the person, decide to refer the person to a specified case manager. The decision takes effect on the day on which the decision is made.
Matters to be taken into account by CES
(4) In making a decision under this section to refer the person to a case manager, the CES must:
(a) take into account the following matters:
(i) any nomination of a preferred case manager given by the person in accordance with subsection (2);
(ii) such other matters (if any) as are specified in a written determination made by the Minister for the purposes of this subsection;
(iii) such other matters (if any) as the CES considers appropriate; and
(b) give the greatest weight to the matter mentioned in subparagraph (a)(i).
Disallowable instrument
(5) A determination under subsection (4) is a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901 .
When section applies
(1) This section applies to a person if the CES has asked the person to attend or take part in an interview under section 30.
Information to be provided by CES
(2) If the CES considers that the person could reasonably be referred to one of a number of case managers, the CES must, at or before the interview, tell the person that he or she may nominate a preferred case manager in accordance with subsection (3).
Nomination of preferred case manager
(3) The nomination of a preferred case manager must be:
(a) in writing; and
(b) given to the CES within 14 days after the date of the interview.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a nomination given under this subsection.
CES to refer person to case manager
(4) The CES must, within 24 days after the date of the interview, decide to refer the person to a specified case manager. The decision takes effect on the day on which the decision is made.
Matters to be taken into account by CES
(5) In making a decision under this section to refer the person to a case manager, the CES must:
(a) take into account the following matters:
(i) any nomination of a preferred case manager given by the person in accordance with subsection (3);
(ii) such other matters (if any) as are specified in a written determination made by the Minister for the purposes of this subsection;
(iii) such other matters (if any) as the CES considers appropriate; and
(b) give the greatest weight to the matter mentioned in subparagraph (a)(i).
Disallowable instrument
(6) A determination under subsection (5) is a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901 .
A decision of the CES to refer a person to a case manager must be consistent with the conditions of accreditation that apply to that case manager.
CES to notify person and case manager of decision
(1) If the CES makes a decision to refer a person to a case manager, the CES must give the person and the case manager notice of the decision. The CES must also notify the original case manager (within the meaning of section 30) if the CES makes a decision to refer the person to a new case manager under section 32 or 33.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a notice given under this subsection.
Notice to be in writing
(2) The notice must be in writing.
Note: Section 25 of the
Acts Interpretation Act 1901 defineswriting sufficiently broadly to include electronic transmission.
Notice to be given as soon as practicable after decision
(3) The notice must be given as soon as practicable after the date of the decision.
Provision of case management services
(1) If a person is referred to a case manager under Part 4.3, the case manager will provide
case management services to the person:
•
Case management services is defined by section 37• If the case manager is a
contracted case manager engaged under section 58, those services will be provided in accordance with an agreement under that section• If the case manager is
Employment Assistance Australia , those services will be provided by way of the performance of the function mentioned in paragraph 19(a).
Case Management Activity Agreements
(2) A person who is referred to a case manager under Part 4.3 will be required to enter into an agreement with the case manager, to be known as a
Case Management Activity Agreement (see section 38). If the person fails to enter into such an agreement, the person could lose his or her qualification for newstart allowance under theSocial Security Act 1991 or his or her qualification for youth training allowance under Part 8 of theStudent and Youth Assistance Act 1973 .
Basic meaning
(1) For the purposes of this Act, the provision of
case management services consists of assisting a participant in the case management system to obtain sustainable employment.
Extended meaning
(2) The ESRA Board may make a written determination providing that the provision of specified services to participants in the case management system is taken to be the provision of case management services for the purposes of this Act. A determination has effect accordingly.
Contracted meaning
(3) The ESRA Board may make a written determination providing that the provision of specified services to participants in the case management system is taken not to be the provision of case management services for the purposes of this Act. A determination has effect accordingly.
Disallowable instrument
(4) A determination under this section is a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901 .
Persons to whom this section applies
(1) This section applies to a person who has been referred to a case manager under Part 4.3.
Agreement
(2) The person is to have a written agreement with the case manager. The agreement is to be known as a
Case Management Activity Agreement . The agreement is to be in a form approved by the Employment Secretary.
Requirement to enter into agreement
(3) If the person is not a party to a Case Management Activity Agreement, the Employment Secretary must require the person to enter into such an agreement.
Replacement agreement
(4) If the person is already a party to a Case Management Activity Agreement, the Employment Secretary may require the person to enter into another such agreement instead of the existing one.
Notification of requirement to enter into agreement
(5) If the person is required to enter into a Case Management Activity Agreement under subsection (3) or (4), the Employment Secretary must give the person written notice of:
(a) the requirement; and
(b) the places and times at which the agreement is to be negotiated.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a notice given under this subsection.
Delegation
(6) The Employment Secretary may, by writing, delegate all or any of his or her powers under subsection (3), (4) or (5) in relation to agreements with a particular case manager to:
(a) if the case manager is an individual—the case manager; or
(b) if the case manager is a body corporate—a director or employee of the case manager; or
(c) if the case manager is a partnership—an individual who is a partner in, or an employee of, the case manager; or
(d) in any other case—an officer or employee of the case manager.
Note: Section 34AA of the
Acts Interpretation Act 1901 (which deals with delegations to people holding specified offices or positions) applies to delegations under this subsection.
Delegated power to be treated as a function conferred on a case manager
(7) A reference in this Act or any other law of the Commonwealth to a function conferred on a case manager under this Act includes a reference to a power delegated under subsection (6) in relation to the case manager.
Terms
(1) A Case Management Activity Agreement between a case manager and a person is to be directed to securing employment for the person. The agreement is to require the person to undertake one or more of the following activities approved by the Employment Secretary:
(a) a job search;
(b) a vocational training course;
(c) training that would help in searching for work;
(d) paid work experience;
(e) measures designed to eliminate or reduce any disadvantage the person has in the labour market (other than measures compelling the person to work in return for payment of newstart allowance under the
Social Security Act 1991 or in return for payment of youth training allowance under Part 8 of theStudent and Youth Assistance Act 1973 );(f) subject to section 40, development of self‑employment;
(g) subject to section 41, development of, and/or participation in, group enterprises or co‑operative enterprises;
(h) participation in a labour market program;
(i) participation in a rehabilitation program (within the meaning of the
Social Security Act 1991 );(j) an activity proposed by the person (such as unpaid voluntary work proposed by the person).
Job Compact
(2) A Case Management Activity Agreement between a case manager and a person is taken to include a term to the effect that, at any time when the person is eligible for the Job Compact, the person is required to:
(a) accept any offer of paid work, other than work that is unsuitable to be undertaken by the person; or
(b) accept any offer of a placement under the New Work Opportunities Program administered by the Department; or
(c) accept any offer of a placement under the New Enterprise Incentive Scheme administered by the Department; or
(d) accept any offer of a placement under the Landcare and Environment Action Program administered by the Department; or
(e) accept any offer of a placement under Jobskills (within the meaning of the
Social Security Act 1991 ).Note 1:
Eligibility for the Job Compact is defined by subsections (10), (12) and (13).Note 2: See section 42 on what paid work is unsuitable.
Attendance at offices of the CES or the case manager etc.
(3) A Case Management Activity Agreement between a case manager and a person may include terms requiring the person (on request or otherwise) to:
(a) attend an office of the CES or of the case manager; or
(b) contact the CES or the case manager; or
(c) give information to the CES or to the case manager.
Substantiation of compliance with agreement
(4) A Case Management Activity Agreement between a case manager and a person must include terms requiring the person (on request or otherwise) to substantiate his or her compliance with the terms of the agreement.
Approval of terms by Employment Secretary
(5) The terms of an agreement (which include the specification of the activities that the person is to be required to undertake) are to be approved by the Employment Secretary.
Matters relevant to approval
(6) In considering whether to approve the terms of an agreement between a case manager and a person, the Employment Secretary is to have regard to the person’s capacity to comply with the proposed agreement and the person’s needs.
Matters relevant to capacity to comply with proposed agreement
(7) In having regard to a person’s capacity to comply with an agreement and the person’s needs, the Employment Secretary is to take into account:
(a) the person’s education, experience, skills, age and physical condition; and
(b) the state of the labour market in the locality where the person resides; and
(c) the training opportunities available to the person; and
(d) any other matters that the Employment Secretary considers relevant in the circumstances.
Delegation
(8) The Employment Secretary may, by writing, delegate all or any of his or her powers under this section in relation to agreements with a particular case manager to:
(a) if the case manager is an individual—the case manager; or
(b) if the case manager is a body corporate—a director or employee of the case manager; or
(c) if the case manager is a partnership—an individual who is a partner in, or an employee of, the case manager; or
(d) in any other case—an officer or employee of the case manager.
Note: Section 34AA of the
Acts Interpretation Act 1901 (which deals with delegations to people holding specified offices or positions) applies to delegations under this subsection.
Delegated power to be treated as a function conferred on a case manager
(9) A reference in this Act or any other law of the Commonwealth to a function conferred on a case manager under this Act includes a reference to a power delegated under subsection (8) in relation to the case manager.
Becoming eligible for the Job Compact—long‑term recipient of newstart allowance or youth training allowance
(10) For the purposes of this section, a person becomes eligible for the Job Compact at a particular time if:
(a) at that time, the person is receiving a newstart allowance under the
Social Security Act 1991 or a youth training allowance under Part 8 of theStudent and Youth Assistance Act 1973 ; and(b) throughout the period of 18 months ending at that time, the person received an income support payment; and
(c) throughout the period of 18 months ending at that time, the person was registered with the CES.
Note:
Income support payment is defined by subsection (17).
Gaps in receipt of income support payment
(11) For the purposes of paragraph (10)(b), if:
(a) a person is in receipt of an income support payment; and
(b) in a case where the person has been in receipt of an income support payment for a period of less than 12 months—the person ceases for a period (the
gap period ) of not longer than 6 weeks to be in receipt of an income support payment; and(c) in a case where the person has been in receipt of an income support payment for a period of at least 12 months—the person ceases for a period (the
gap period ) of not longer than 13 weeks to be in receipt of an income support payment; and(d) at the end of the gap period, the person begins to receive an income support payment;
the person is taken to have been in receipt of an income support payment throughout the gap period.
Note:
Income support payment is defined by subsection (17).
Becoming eligible for the Job Compact—Ministerial determination
(12) For the purposes of this section, the Minister may make a written determination that a person included in a specified class of persons becomes eligible for the Job Compact at a specified time. A determination has effect accordingly.
Ceasing to be eligible for the Job Compact
(13) For the purposes of this section, if a person becomes eligible for the Job Compact, the person remains eligible for the Job Compact until a terminating event happens.
Note:
Terminating event is defined by subsection (14).
Determinations about terminating events and resetting CES registration to zero
(14) The Minister may make a written determination:
(a) that a specified event or circumstance is a terminating event for the purposes of subsection (13); or
(b) that a specified event or circumstance resets a person’s CES registration to zero for the purposes of paragraph (10)(c).
A determination has effect accordingly.
When determination resets CES registration to zero
(14A) A determination covered by paragraph (14)(b)
resets a person’s CES registration to zero if, and only if, the determination provides that the person is taken, for the purposes of paragraph (10)(c):
(a) to have ceased, at a specified time, to be registered with the CES; and
(b) to have recommenced, 24 hours later, to be registered with the CES.
Disallowable instrument
(15) A determination under subsection (12) or (14) is a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901 .
Registration with the CES
(16) For the purposes of this section, a person is registered with the CES if, and only if, the person is registered by the CES as being unemployed.
Definition
(17) In this section:
income support payment means:
(a) newstart allowance under the
Social Security Act 1991 ; or(b) youth training allowance under Part 8 of the
Student and Youth Assistance Act 1973 .
Prior receipt of allowance and commercial viability of self‑employment
(1) A Case Management Activity Agreement must not require a person to undertake as an activity any development of self‑employment unless:
(a) at all times during the 6 months immediately preceding the undertaking of the activity, the person has been, or will have been, receiving either of the following:
(ii) a newstart allowance under the
Social Security Act 1991 ;(iii) a youth training allowance under the
Student and Youth Assistance Act 1973 ; and(b) the Employment Secretary is satisfied that the activity:
(i) will be commercially viable 12 months after the person begins the activity; and
(ii) is likely to provide the person with sustainable full‑time employment that will provide the person with a level of income at least equivalent to the person’s maximum basic rate.
Maximum basic rate
(2) For the purposes of subparagraph (1)(b)(ii), a person’s maximum basic rate is:
(a) if the person had been receiving newstart allowance and is under 18—the person’s maximum basic rate worked out under Module B of Benefit Rate Calculator A (within the meaning of the
Social Security Act 1991 ); or(b) if the person had been receiving newstart allowance and is 18 or over—the person’s maximum basic rate worked out under Module B of Benefit Rate Calculator B (within the meaning of the
Social Security Act 1991 ); or(c) if the person had been receiving youth training allowance—the person’s maximum basic rate worked out under Module B of Schedule 1 to the
Student and Youth Assistance Act 1973 .
Other conditions
(3) A Case Management Activity Agreement must not require a person to undertake as an activity any development of self‑employment if:
(a) the person is to undertake the activity for more than 12 months; or
(b) subject to subsection (4), the person has previously been subject to a requirement under:
(i) that agreement; or
(ii) any other Case Management Activity Agreement; or
(iii) a Job Search Activity Agreement; or
(iv) a Newstart Activity Agreement; or
(v) a Youth Training Activity Agreement;
to undertake the same activity or a similar activity; or
(c) at any time during the 6 months immediately preceding the time at which the activity is to start, the person has been subject to a requirement under:
(i) that agreement; or
(ii) any other Case Management Activity Agreement; or
(iii) a Job Search Activity Agreement; or
(iv) a Newstart Activity Agreement; or
(v) a Youth Training Activity Agreement;
to undertake as an activity other development of self‑employment.
Special circumstances
(4) Paragraph (3)(b) does not apply if the Employment Secretary determines in writing that there are special circumstances that justify inclusion of the activity in the Case Management Activity Agreement.
Activities to which section does not apply
(5) This section does not apply to an activity to which a paragraph of subsection 39(1) other than paragraph 39(1)(f) or (g) applies.
Definitions
(6) In this section:
Job Search Activity Agreement has the same meaning as in theSocial Security Act 1991 as in force immediately before 20 September 1996.
Newstart Activity Agreement has the same meaning as in theSocial Security Act 1991 .
Youth Training Activity Agreement has the same meaning as in Part 8 of theStudent and Youth Assistance Act 1973 .
Development
(1) A Case Management Activity Agreement must not require a person to undertake as an activity any development of a group enterprise or co‑operative enterprise unless:
(a) at all times during the 6 months immediately preceding the undertaking of the activity, the person has been, or will have been, receiving either of the following:
(ii) a newstart allowance under the
Social Security Act 1991 ;(iii) a youth training allowance under Part 8 of the
Student and Youth Assistance Act 1973 ; and(b) the Employment Secretary is satisfied that the activity:
(i) will be viable 12 months after the person begins the activity; and
(ii) is likely to provide the person with skills, training or work experience that will assist the person to obtain paid employment, being paid employment that will provide the person with a level of income at least equivalent to the person’s maximum basic rate.
Participation
(2) A Case Management Activity Agreement must not require a person to undertake as an activity any participation in a group enterprise or co‑operative enterprise unless:
(a) at all times during the 6 months immediately preceding the undertaking of the activity, the person has been, or will have been, receiving either of the following:
(ii) a newstart allowance under the
Social Security Act 1991 ;(iii) a youth training allowance under Part 8 of the
Student and Youth Assistance Act 1973 ; and(b) the Employment Secretary is satisfied that the activity is likely to provide the person with skills, training or work experience that will assist the person to obtain self‑employment or paid employment, being self‑employment or paid employment that will provide the person with a level of income at least equivalent to the person’s maximum basic rate.
Maximum basic rate
(3) For the purposes of this section, a person’s maximum basic rate is:
(a) if the person had been receiving newstart allowance and is under 18—the person’s maximum basic rate worked out under Module B of Benefit Rate Calculator A (within the meaning of the
Social Security Act 1991 ); or(b) if the person had been receiving newstart allowance and is 18 or over—the person’s maximum basic rate worked out under Module B of Benefit Rate Calculator B (within the meaning of the
Social Security Act 1991 ); or(c) if the person had been receiving youth training allowance—the person’s maximum basic rate worked out under Module B of Schedule 1 to the
Student and Youth Assistance Act 1973 .
Other conditions
(4) A Case Management Activity Agreement must not require a person to undertake as an activity any development of, or participation in, a group enterprise or co‑operative enterprise if:
(a) the person is to undertake the activity for more than 12 months; or
(b) the person has previously been subject to a requirement under:
(i) that agreement; or
(ii) any other Case Management Activity Agreement; or
(iii) a Job Search Activity Agreement; or
(iv) a Newstart Activity Agreement; or
(v) a Youth Training Activity Agreement;
to undertake the same activity or a similar activity; or
(c) at any time during the 6 months immediately preceding the time at which the activity is to start, the person has been subject to a requirement under:
(i) that agreement; or
(ii) any other Case Management Activity Agreement; or
(iii) a Job Search Activity Agreement; or
(iv) a Newstart Activity Agreement; or
(v) a Youth Training Activity Agreement;
to undertake as an activity other development of, or participation in, a group enterprise or co‑operative enterprise.
Activities to which section does not apply
(5) This section does not apply to an activity to which a paragraph of subsection 39(1) other than paragraph 39(1)(f) or (g) applies.
Definitions
(6) In this section:
Job Search Activity Agreement has the same meaning as in theSocial Security Act 1991 as in force immediately before 20 September 1996.
Newstart Activity Agreement has the same meaning as in theSocial Security Act 1991 .
Youth Training Activity Agreement has the same meaning as in Part 8 of theStudent and Youth Assistance Act 1973 .
Unsuitable work
(1) Subject to subsection (2A), for the purposes of paragraph 39(2)(a), particular paid work is taken to be unsuitable for a person if, and only if, in the Employment Secretary’s opinion:
(a) the person lacks the particular skills, experience or qualifications that are needed to perform the work and no training will be provided by the employer; or
(b) it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or
(c) performing the work in the conditions in which the work would be performed would constitute a risk to health or safety and would contravene a law of the Commonwealth, a State or a Territory relating to occupational health and safety; or
(d) the work would involve the person being self‑employed; or
(e) the work would be covered by an industrial award but the employer would only employ the person if the person agreed to become a party to an agreement reducing or abolishing rights that the award confers on employees; or
(f) the work would not be covered by an industrial award and the remuneration for the work would be lower than the minimum applicable rate of remuneration for comparable work that is covered by an industrial award; or
(g) commuting between the person’s home and the place of work would be unreasonably difficult; or
(h) the work would require enlistment in the Defence Force or the the Reserves; or
(i) the work requires the person to move from a home in a place to a home in another place and subsection (2B) applies to the person; or
(j) for any other reason, the work is unsuitable for the person.
Commuting—unreasonable difficulty
(2) For the purposes of paragraph (1)(g), commuting is taken not to be unreasonably difficult if:
(a) both:
(i) apart from this subsection, commuting would be unreasonably difficult; and
(ii) the sole or principal reason for the difficulty is that the commuting involves a journey, either from the person’s home to the place of work or from the place of work to the person’s home, that does not normally exceed 90 minutes in duration; or
(b) in the Employment Secretary’s opinion, a substantial number of people living in the same area as the person regularly commute to their places of work in circumstances similar to those of the person.
Remuneration
(3) A reference in subsection (1) to remuneration for work is a reference to any income derived from the work that is income from personal exertion.
Definition
(4) In this section:
income from personal exertion has the same meaning as in theSocial Security Act 1991 .
(5) In this section:
Reserves has the same meaning as in subsection 601(7) of theSocial Security Act 1991 .
Agreement may be varied, suspended, cancelled or reviewed
(1) A Case Management Activity Agreement between a case manager and a person:
(a) may be varied or suspended; and
(b) if another Case Management Activity Agreement is made with the person—may be cancelled; and
(c) may be reviewed from time to time at the request of either party to the agreement.
Cancellation resulting from termination of referral
(2) If:
(a) a Case Management Activity Agreement between a case manager and a person is in force; and
(b) a decision of the CES under section 30 to terminate the person’s referral to the case manager takes effect;
the agreement is taken to be cancelled when the decision takes effect.
Note: The effect of section 593 of the
Social Security Act 1991 and section 65 of theStudent and Youth Assistance Act 1973 is that, as a general rule, a person is not qualified for newstart allowance or youth training allowance unless the person satisfies the activity test.
When this section applies
(1) This section applies if:
(a) a person has been given notice under subsection 38(5) of a requirement to enter into a Case Management Activity Agreement; and
(b) the Employment Secretary is satisfied that the person is unreasonably delaying entering into the agreement.
Reasons for delay
(2) The Employment Secretary may be so satisfied:
(a) because of the person’s failure to:
(i) attend the negotiation of the agreement; or
(ii) respond to correspondence about the agreement; or
(iii) agree to terms of the agreement proposed by the case manager; or
(b) for any other reason.
Notification
(3) The Employment Secretary may give the person a written notice stating that the person is being taken to have failed to enter into the agreement. If such a notice is given, the person is taken to have failed to have entered into the agreement.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a notice given under this subsection.
Rules about notice
(4) A notice under subsection (3) must:
(a) set out the reasons for the decision to give the notice; and
(b) include a statement describing the rights of the person to apply for a review of the decision.
Persons to whom this section applies
(1) This section applies to a person who is a participant in the case management system throughout a particular period (the
participation period ).
Case management period
(2) For the purposes of this section, the person’s
case management period is the period:
(a) beginning on the first occasion during the participation period when a decision under Part 4.3 referring the person to a case manager took effect; and
(b) ending at the end of the participation period.
Newstart Activity Agreement and Youth Training Activity Agreement superseded
(3) If:
(a) the person was a party to a Newstart Activity Agreement or a Youth Training Activity Agreement that was in force immediately before the beginning of the person’s case management period; and
(b) the person enters into a Case Management Activity Agreement with a case manager;
the Newstart Activity Agreement or Youth Training Activity Agreement, as the case requires, ceases to be in force immediately before the Case Management Activity Agreement comes into force.
Participant not to be required to enter into a Newstart Activity Agreement or Youth Training Activity Agreement
(4) The person is not to be required to enter into a Newstart Activity Agreement or a Youth Training Activity Agreement during the person’s case management period.
Qualification for newstart allowance or youth training allowance
(5) The person is not qualified for a newstart allowance or a youth training allowance in respect of a period unless (in addition to meeting any other requirements set out in the
Social Security Act 1991 or Part 8 of theStudent and Youth Assistance Act 1973 , as the case may be):
(a) when the person is required under section 38 to enter into a Case Management Activity Agreement in relation to the period, the person enters into that agreement; and
(b) while the agreement is in force, the person satisfies the Employment Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and
(c) 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 section 38.
Compliance with Case Management Activity Agreement
(6) For the purposes of paragraph (5)(b), a person is taking reasonable steps to comply with the terms of a Case Management Activity Agreement unless the person has failed to comply with the terms of the agreement and:
(a) the main reason for failing to comply involved a matter that was within the person’s control; or
(b) the circumstances that prevented the person from complying were reasonably foreseeable by the person.
Modification of power to treat person as unemployed for the purposes of the Social Security Act 1991
(7) During the person’s case management period, section 595 of the
Social Security Act 1991 has effect, in relation to the person, as if a reference in that section to a Newstart Activity Agreement were a reference to a Case Management Activity Agreement.
Modification of power to treat person as unemployed for the purposes of Part 8 of the Student and Youth Assistance Act 1973
(8) During the person’s case management period, section 68 of the
Student and Youth Assistance Act 1973 has effect, in relation to the person, as if a reference in that section to a Youth Training Activity Agreement were a reference to a Case Management Activity Agreement.
Modification of activity test requirements under the Social Security Act 1991
(9) During the person’s case management period, section 601 of the
Social Security Act 1991 has effect, in relation to the person, as if a reference in that section to a Newstart Activity Agreement between the CES and the person were a reference to a Case Management Activity Agreement between a case manager and the person.
Modification of activity test requirements under Part 8 of the Student and Youth Assistance Act 1973
(10) During the person’s case management period, section 75 of the
Student and Youth Assistance Act 1973 has effect, in relation to the person, as if a reference in that section to a Youth Training Activity Agreement between the Commonwealth Employment Service and the person were a reference to a Case Management Activity Agreement between a case manager and the person.
Modification of rules in the Social Security Act 1991 relating to failure to enter into, or to comply with, agreements
(11) During the person’s case management period, sections 608, 625 and 626 of the
Social Security Act 1991 have effect, in relation to the person, as if a reference in those sections to a Newstart Activity Agreement were a reference to a Case Management Activity Agreement.
Modification of rules in Part 8 of the Student and Youth Assistance Act 1973 relating to failure to enter into, or to comply with, agreements
(12) During the person’s case management period, sections 104 and 105 of the
Student and Youth Assistance Act 1973 have effect, in relation to the person, as if a reference in those sections to a Youth Training Activity Agreement were a reference to a Case Management Activity Agreement.
Modification of rules in the Social Security Act 1991 relating to enrolment in a full‑time course of education etc.
(13) During the person’s case management period, section 613 of the
Social Security Act 1991 has effect, in relation to the person, as if a reference in that section to a Newstart Activity Agreement were a reference to a Case Management Activity Agreement.
This section has effect despite the Social Security Act 1991 and Part 8 of the Student and Youth Assistance Act 1973
(14) This section has effect despite anything in the
Social Security Act 1991 and Part 8 of theStudent and Youth Assistance Act 1973 .
Definitions
(15) In this section:
case management period has the meaning given by subsection (2).
newstart allowance has the same meaning as in theSocial Security Act 1991 .
Newstart Activity Agreement has the same meaning as in theSocial Security Act 1991 .
participation period has the meaning given by subsection (1).
youth training allowance has the same meaning as in Part 8 of theStudent and Youth Assistance Act 1973 .
Youth Training Activity Agreement has the same meaning as in Part 8 of theStudent and Youth Assistance Act 1973 .
When this section applies
(1) This section applies if a Case Management Activity Agreement between a case manager and a person is in force.
Notification requirements—allowees under the Social Security Act 1991 and recipients of youth training allowance
(2) If a person is an allowee (within the meaning of Part 2.12 of the
Social Security Act 1991 ) or a recipient of youth training allowance under Part 8 of theStudent and Youth Assistance Act 1973 , the person must notify the Employment Secretary of any circumstances preventing or affecting the person’s compliance with the agreement.
Requirements to provide information about compliance
(3) The Employment Secretary may, by written notice given to the person or the case manager, require the person or the case manager, as the case requires, to give the Employment Secretary such information about the person’s compliance with the agreement as is specified in the notice.
Note 1: Section 53 deals with a case manager who contravenes the notice.
Note 2: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a notice given under this subsection.
Manner in which information is to be given
(4) The information is to be given within the period and in the manner specified in the notice.
Person to comply
(5) If the person refuses or fails to comply with subsection (2) or with a notice under subsection (3), section 630C of the
Social Security Act 1991 and section 114 of theStudent and Youth Assistance Act 1973 have effect, in relation to the person, as if:
(a) the conditions set out in paragraphs (1)(b), (c), (d) and (e) of each of those sections were satisfied; and
(b) the reference in subsection (2) of each of those sections to the requirement were a reference to the requirement arising under subsection (2) of this section or to the requirement set out in the notice under subsection (3) of this section, as the case requires.
Note: This means that newstart allowance or youth training allowance would cease to be payable to the and an administrative breach rate reduction period would apply to the person unless the person had a reasonable excuse for not complying with the request.
(1) The Employment Secretary may, by writing, delegate all or any of his or her powers under section 40, 41, 42, 44, 45 or 46 to an officer of the Department or, in accordance with service arrangements, to the Chief Executive Officer or an employee of the Services Delivery Agency.
(2) The Employment Secretary may, by writing, delegate all or any of his or her powers under section 45 or 46 to an officer of the Department of Social Security.
Without limiting subsection 26(2), a determination under that subsection may specify that a person’s failure to comply with a requirement made of the person by or under this Division is a terminating event for the purposes of subsection 26(1).
Note: If such a determination were made, the person would cease to be a participant in the case management system.
Accreditation scheme
(1) The ESRA Board must, by written instrument, formulate a scheme for the accreditation of entities as case managers. The scheme is to be known as the
accreditation scheme .Note 1:
Entity is defined by section 4.Note 2: Accreditation means that the entity is eligible to be engaged as a contracted case manager under section 58.
Accreditation decisions
(2) The accreditation scheme must empower ESRA to make decisions:
(a) accrediting entities; and
(b) varying or cancelling the accreditation of entities.
Application fees etc.
(3) The accreditation scheme may make provision for fees to be charged by ESRA in respect of the making of applications under the scheme.
Surrender of accreditation
(4) The accreditation scheme may make provision for an entity to surrender its accreditation to ESRA.
Register of accredited case managers
(5) The accreditation scheme must make provision for and in relation to the keeping of a register by ESRA of entities accredited under the accreditation scheme. In particular, the accreditation scheme may make provision for the following:
(a) the register to be kept in such form and manner as ESRA directs;
(b) persons to inspect the register;
(c) persons to obtain information contained in the register;
(d) fees to be charged by ESRA for such an inspection or for providing such information.
Copies of scheme to be made available
(6) ESRA must give a free copy of the accreditation scheme to any person who requests a copy.
Disallowable instrument
(7) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901 .
Conditions of accreditation
(1) The accreditation scheme must empower ESRA to accredit an entity subject to one or more conditions specified in the instrument of accreditation. The accreditation scheme may also empower ESRA to:
(a) impose one or more further conditions to which the accreditation is subject; and
(b) revoke or vary any condition:
(i) specified in the instrument of accreditation; or
(ii) imposed under paragraph (a).
Conditions applicable to contracted case managers
(2) A condition may be expressed to have effect only if the entity is engaged under section 58.
Conditions may confer discretionary powers on ESRA
(3) A condition of an accreditation may make provision for or in relation to a matter by conferring a power on ESRA. For example, a condition could require that case management services be provided at premises approved by ESRA.
Cancellation of accreditation for breach of condition
(4) Without limiting paragraph 49(2)(b), the accreditation scheme may empower ESRA to make a decision cancelling the accreditation of an entity if the entity contravenes a condition of the accreditation.
Formal warnings—breach of condition
(5) The accreditation scheme may empower ESRA to issue a formal warning if an entity contravenes a condition of its accreditation.
Additional condition of accreditation
(1) In addition to the conditions to which an entity’s accreditation is subject under the accreditation scheme, the accreditation is subject to the condition mentioned in subsection (2).
No fees
(2) It is a condition of the accreditation of an entity that the entity must not demand or receive any fee or other consideration from a participant in the case management system referred to it under Part 4.3, where the fee or consideration is in respect of the provision of case management services to the participant.
Condition has effect only if the entity is a contracted case manager
(3) The condition mentioned in subsection (2) has effect only if the entity is a contracted case manager.
This section does not limit accreditation scheme
(4) This section does not, by implication, limit the generality of section 50 (which deals with conditions under the accreditation scheme). In particular, a condition of accreditation may deal with the entering into, or carrying out, of arrangements for the purpose of avoiding the application of this section.
Additional condition of accreditation
(1) In addition to the conditions to which an entity’s accreditation is subject under the accreditation scheme, the accreditation is subject to the condition mentioned in subsection (2).
Compliance with rules of conduct
(2) It is a condition of the accreditation of an entity that the entity must comply with any rules of conduct formulated under section 62.
Condition has effect only if the entity is a contracted case manager
(3) The condition mentioned in subsection (2) has effect only if the entity is a contracted case manager.
This section does not limit accreditation scheme
(4) This section does not, by implication, limit the generality of section 50 (which deals with conditions under the accreditation scheme).
Additional conditions of accreditation
(1) In addition to the conditions to which an entity’s accreditation is subject under the accreditation scheme, the accreditation is subject to the conditions mentioned in subsections (2) and (3).
Copies of agreements to be sent to the CES
(2) It is a condition of accreditation of an entity that, if the entity enters into a Case Management Activity Agreement, the entity will send a copy of the agreement to the CES as soon as practicable after the terms of the agreement have been approved under section 39.
Information about compliance with agreements
(3) It is a condition of accreditation of an entity that the entity must comply with a notice given to the entity under section 46 (which deals with information about compliance with Case Management Activity Agreements).
This section does not limit accreditation scheme
(4) This section does not, by implication, limit the generality of section 50 (which deals with conditions under the accreditation scheme).
Possible condition of accreditation
(1) A condition of an entity’s accreditation under the accreditation scheme may relate to the giving of:
(a) one or more guarantees; or
(b) one or more security deposits;
in respect of compliance by the entity with the entity’s obligations under, or arising out of, this Act.
Examples of cases where guarantees or security deposits could be given
(2) The following are examples of cases where a guarantee or security deposit might be given:
(a) each of the directors of a company give ESRA a guarantee that the company will pay any case management debts (within the meaning of section 170) owed by the company;
(b) a holding company gives ESRA a guarantee that a subsidiary of the holding company will pay any case management debts (within the meaning of section 170) owed by the subsidiary;
(c) an entity gives ESRA a security deposit in respect of compliance by the entity with the entity’s obligations to pay any case management debts (within the meaning of section 170).
This section does not limit accreditation scheme
(3) This section does not, by implication, limit the generality of section 50 (which deals with conditions under the accreditation scheme).
Maximum number of client referrals
(1) A condition of an entity’s accreditation under the accreditation scheme may relate to the acceptance of client referrals and, in particular, may relate to the maximum number of client referrals that the entity can be required, or is permitted, to accept. For this purpose, a
client referral is a referral of a person to the entity under Part 4.3.
Maximum workloads
(2) A condition of an entity’s accreditation under the accreditation scheme may relate to the maximum case management workload of any of the following individuals:
(a) if the entity is a body corporate—a director or employee of the entity; or
(b) if the entity is a partnership—an individual who is a partner in, or an employee of, the partnership; or
(c) in any other case—an officer or employee of the entity.
For this purpose, a
case management workload is so much of an individual’s workload as relates to the provision of case management services.
This section does not limit accreditation scheme
(3) This section does not, by implication, limit the generality of section 50 (which deals with conditions under the accreditation scheme).
Classes of specialisation
(1) The accreditation scheme may specify a special class of case management services.
Accreditation as generalist or specialist case manager
(2) The accreditation scheme may empower ESRA to accredit an entity:
(a) generally; or
(b) in relation to one or more classes specified under subsection (1);
or both.
Disqualified individuals or bodies corporate not to be accredited
(1) ESRA must not accredit an individual or a body corporate under the accreditation scheme at a particular time if the individual or body corporate is a disqualified person at that time.
Note:
Disqualified person is defined by subsection (6).
Disqualified company directors etc.
(2) ESRA must not accredit a body corporate under the accreditation scheme at a particular time if any of the following individuals is a disqualified person at that time:
(a) a director of the body corporate;
(b) the secretary of the body corporate;
(c) a person (by whatever name called and whether or not a director of the body corporate) who is concerned in, or takes part in, the management of the body corporate.
Note:
Disqualified person is defined by subsection (6).
Disqualified partners
(3) ESRA must not accredit a partnership under the accreditation scheme at a particular time if:
(a) in a case where a partner is an individual—the partner is a disqualified person at that time; or
(b) in a case where a partner is a body corporate—any of the following individuals is a disqualified person at that time:
(i) a director of the body corporate;
(ii) the secretary of the body corporate;
(iii) a person (by whatever name called and whether or not a director of the body corporate) who is concerned in, or takes part in, the management of the body corporate.
Note:
Disqualified person is defined by subsection (6).
Disqualified members of the executive committees of unincorporated associations etc.
(4) ESRA must not accredit an unincorporated association under the accreditation scheme at a particular time if any of the following individuals is a disqualified person at that time:
(a) a member of the executive committee of the unincorporated association;
(b) a person (by whatever name called and whether or not a member of the executive committee of the unincorporated association) who is concerned in, or takes part in, the management of the unincorporated association.
Note:
Disqualified person is defined by subsection (6).
Cancellation of accreditation
(5) ESRA must cancel the accreditation of an entity under the accreditation scheme at a particular time if, assuming that the entity had not been accredited at that time, ESRA would have been prevented by this section from accrediting the entity at that time.
Disqualified person
(6) For the purposes of this section, a person is a
disqualified person at a particular time if:
(a) the person has been convicted (whether before or after the commencement of this section):
(i) of an offence against section 60 (which deals with false or misleading statements in connection with claims for payments); or
(ii) of an offence that:
(A) is an offence against a law of the Commonwealth, a State, a Territory or a foreign country; and
(B) involves fraud or dishonesty; and
(C) is punishable by imprisonment for life or for a period, or maximum period, of at least 2 years; or
(iii) on indictment of an offence that:
(A) is an offence against a law of the Commonwealth, a State, a Territory or a foreign country; and
(B) is in connection with the promotion, formation or management of a body corporate; or
(iv) of an offence for a contravention of any of the following provisions of the Corporations Law of a State or an internal Territory:
(A) section 232;
(B) section 590;
(C) section 591;
(D) section 592;
(E) section 595;
(F) section 996;
(G) section 1307;
(H) Part 6.6;
(I) Division 2 of Part 7.11; or
(v) of an offence of which the person is guilty because of subsection 1317FA(1) of the Corporations Law of a State or an internal Territory; and
(b) the time occurs during whichever of the following periods is applicable:
(i) if the person was sentenced to imprisonment—the period:
(A) beginning when the person was convicted; and
(B) ending 5 years after the person’s release from prison;
(ii) in any other case—the period:
(A) beginning when the person was convicted; and
(B) ending 5 years after the conviction.
Note 1: Section 232 of the Corporations Law deals with duties of directors and other company officers.
Note 2: Sections 590, 591, 592 and 595 of the Corporations Law deal with fraud etc. in relation to the winding‑up of a company etc.
Note 3: Section 996 of the Corporations Law deals with false or misleading prospectuses.
Note 4: Section 1307 of the Corporations Law deals with falsification of the books of a company.
Note 5: Part 6.6 of the Corporations Law deals with misleading statements relating to company takeovers etc.
Note 6: Division 2 of Part 7.11 of the Corporations Law deals with fraud etc. in relation to dealing in securities.
Note 7: Section 1317FA of the Corporations Law deals with criminal contraventions of civil penalty provisions. Civil penalty provisions include provisions relating to the following:
(a) the duties of directors and other company officers;
(b) financial benefits to directors etc.;
(c) financial statements and directors’ reports;
(d) trading while insolvent.
Extended meaning of conviction —orders under section 19B of the Crimes Act 1914 etc.
(7) A reference in this section to a conviction of a person of an offence includes a reference to the making of an order under section 19B of the
Crimes Act 1914 , or under a corresponding provision of a law of a State, a Territory or a foreign country, in relation to a person in respect of an offence.Note: Section 19B of the
Crimes Act 1914 empowers a court that has found a person to have committed an offence to take action without proceeding to record a conviction.
This section does not limit accreditation scheme
(8) This section does not, by implication, limit the generality of sections 49 and 50 (which deal with the accreditation scheme).
Spent convictions scheme not affected by this section
(9) This section does not affect the operation of Part VIIC of the
Crimes Act 1914 (which includes provisions relieving persons from requirements to disclose spent convictions).
Transitional—previous company law
(10) A reference in this section to a section, Division or Part of the Corporations Law of a State or an internal Territory includes a reference to a corresponding previous law, within the meaning of that Corporations Law, in relation to that section, Division or Part.
Engagement
(1) ESRA may engage an accredited case manager to:
(a) provide case management services to participants in the case management system referred to the accredited case manager under Part 4.3; and
(b) perform functions conferred on case managers under this Act.
An accredited case manager engaged under this section is to be known as a
contracted case manager .
Terms and conditions—general
(2) The terms and conditions of the engagement are to be set out in a written agreement between ESRA and the contracted case manager. The terms and conditions must be consistent with the accreditation scheme.
Conditions of accreditation taken to be conditions of engagement
(3) Without limiting subsection (2), each condition of the accreditation of the contracted case manager is taken to be a condition of the engagement.
Cancellation or surrender of accreditation terminates the engagement
(4) Without limiting subsection (2), the cancellation or surrender of the accreditation of the contracted case manager terminates the engagement without giving the case manager any entitlement to compensation or damages.
Amounts to be payable to contracted case managers
(1) Without limiting subsection 58(2), an agreement under that subsection may provide for amounts to be paid by ESRA to a contracted case manager.
ESRA to deal with claims for payments
(2) A payment referred to in subsection (1) must not be paid unless:
(a) a claim for the payment is given to ESRA; and
(b) ESRA accepts the claim.
Claims may be made in electronic form
(3) ESRA may authorise a claim for a payment to be given to ESRA, in accordance with specified software requirements:
(a) on a specified kind of data processing device; or
(b) by way of a specified kind of electronic transmission.
This section has effect subject to section 32 of the Navigation Act 1912
(4) This section has effect subject to section 32 of the
Navigation Act 1912 (which deals with payments in relation to providing seamen with employment on ships).
Definition
(5) In this section:
data processing device means any article or material (for example, a disk) from which information is capable of being reproduced with or without the aid of any other article or device.
Procedure where variation or substitution before determination
(3) If:
(a) a person applies to the Social Security Appeals Tribunal for review of a decision under this Act; and
(b) before determination of the review:
(i) the decision is varied; or
(ii) the decision is set aside and a new decision is substituted;
the person may either:
(c) proceed with the application for review of the decision as varied or the new decision; or
(d) withdraw the application under section 1274 of the
Social Security Act 1991 .
Parties to review
(1) The parties to a review by the Social Security Appeals Tribunal of a decision under this Act are:
(a) the applicant; and
(b) the Employment Secretary; and
(c) any other person who has been made a party to the review under subsection (4).
Application to be made a party
(2) If a person has applied under subsection 153(1) for review of a decision, any other person whose interests are affected by the decision may apply to the National Convenor of the Social Security Appeals Tribunal to be made a party to the review.
Written application
(3) An application under subsection (2) must be in writing.
National Convenor of the Social Security Appeals Tribunal may make order
(4) The National Convenor of the Social Security Appeals Tribunal may order that a person who has applied under subsection (2) be made a party to the review.
The Social Security Appeals Tribunal must, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
Application
(1) Subject to the changes set out below, the provisions of Parts 6.3 and 6.4 of the
Social Security Act 1991 apply in relation to:
(a) applications to the Social Security Appeals Tribunal under subsection 153(1) of this Act for review of decisions under this Act; and
(b) reviews under this Act by the Social Security Appeals Tribunal; and
(c) decisions that have been reviewed by the Social Security Appeals Tribunal under this Act;
in a corresponding way to the way in which they apply in relation to:
(d) applications to the Social Security Appeals Tribunal under the
Social Security Act 1991 for review of decisions under that Act; and(e) reviews under that Act by the Social Security Appeals Tribunal; and
(f) decisions that have been reviewed by the Social Security Appeals Tribunal under that Act.
References to the Social Security Secretary
(2) The first change is that each reference to the Social Security Secretary (other than each reference in section 1269 of the
Social Security Act 1991 ) is to be replaced by a reference to the Employment Secretary.
References to the Social Security Act 1991
(3) The second change is that each reference in subsections 1279(2) and (5) and 1283(4) of the
Social Security Act 1991 to that Act is to be replaced by a reference to:
(a) in the case of subsections 1279(2) and (5) of the
Social Security Act 1991 —that Act and this Act; and(b) in the case of subsection 1283(4) of the
Social Security Act 1991 — this Act.
References to Department of Social Security
(4) The third change is that each reference to the Department of Social Security is to be replaced by a reference to the Department of Employment, Education and Training.
Reference to section 1260
(5) The fourth change is that the reference in subsection 1264(2) of the
Social Security Act 1991 to section 1260 of that Act is to be replaced by a reference to section 162 of this Act.Note: This subsection deals with advice about a person’s right to apply to the National Convenor of the Social Security Appeals Tribunal to be added as a party to a review.
References to section 1246
(6) The fifth change is that each reference to section 1246 of the
Social Security Act 1991 is to be replaced by a reference to section 163 of this Act.Note: This subsection deals with the Social Security Appeals Tribunal’s objectives.
References to officer in section 1284
(7) The sixth change is that each reference in section 1284 of the
Social Security Act 1991 to an officer is to be replaced by a reference to the Employment Secretary.Note: This subsection deals with the variation etc. of decisions.
In this Part:
reviewable decision means a decision made by ESRA under:
(a) the accreditation scheme; or
(b) a condition of accreditation; or
(c) section 57 (which deals with disqualification for fraud, dishonesty etc.).
Request for reconsideration
(1) An entity who is affected by a reviewable decision may, if dissatisfied with the decision, request ESRA to reconsider the decision.
Note:
Reviewable decision is defined by section 165.
How request must be made
(2) The request must be made by written notice given to ESRA within the period of 21 days after the day on which the entity first receives notice of the decision, or within such further period as ESRA allows.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a notice given under this subsection.
Request must set out reasons
(3) The request must set out the reasons for making the request.
ESRA to reconsider decision
(4) Upon receipt of the request, ESRA must reconsider the decision and may, subject to subsection (5), confirm or revoke the decision or vary the decision in such manner as ESRA thinks fit.
Deemed confirmation of decision if delay
(5) If ESRA does not confirm, revoke or vary a decision before the end of the period of 60 days after the day on which ESRA received the request under subsection (1) to reconsider the decision, ESRA is taken, at the end of that period, to have confirmed the decision under subsection (4).
Notice of ESRA’s action
(6) If ESRA confirms, revokes or varies a decision before the end of the period referred to in subsection (5), ESRA must give written notice to the entity telling the entity:
(a) the result of the reconsideration of the decision; and
(b) the reasons for confirming, varying or revoking the decision, as the case may be.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a notice given under this subsection.
Applications may be made to the Administrative Appeals Tribunal for review of decisions that have been confirmed or varied under subsection 166(4).
Period for making certain AAT applications
(1) If a decision is taken to be confirmed because of subsection 166(5), section 29 of the
Administrative Appeals Tribunal Act 1975 applies as if the prescribed time for making application for review of the decision were the period of 28 days beginning on the day on which the decision is taken to be confirmed.
Section 41 of AAT Act
(2) If a request is made under subsection 166(1) in respect of a reviewable decision, section 41 of the
Administrative Appeals Tribunal Act 1975 (which deals with the operation etc. of a decision subject to review) applies as if the making of the request were the making of an application to the Administrative Appeals Tribunal for a review of that decision.
Original decision
(1) If written notice is given to an entity affected by a reviewable decision telling the entity that the reviewable decision has been made, that notice is to include a statement to the effect that:
(a) the entity may, if dissatisfied with the decision, seek a reconsideration of the decision by ESRA in accordance with subsection 166(1); and
(b) the entity may, subject to the
Administrative Appeals Tribunal Act 1975 , if dissatisfied with a decision made by ESRA upon that reconsideration confirming or varying the first‑mentioned decision, make application to the Administrative Appeals Tribunal for review of the decision so confirmed or varied.Note:
Reviewable decision is defined by section 165.
Reconsidered decision
(2) If:
(a) ESRA confirms or varies a reviewable decision under subsection 166(4); and
(b) gives to an entity written notice of the confirmation or variation of the decision;
that notice is to include a statement to the effect that the entity may, subject to the
Administrative Appeals Tribunal Act 1975 , if dissatisfied with the decision so confirmed or varied, make application to the Administrative Appeals Tribunal for review of the decision.Note:
Reviewable decision is defined by section 165.
Validity of decision
(3) A failure to comply with this section does not affect the validity of a decision.
For the purposes of this Part, the following amounts are
case management debts :
(a) so much of an amount paid, or purportedly paid, to an entity as mentioned in subsection 59(1) as represents an overpayment;
(b) an amount that is repayable as mentioned in section 61 (which deals with conditional payments).
A case management debt is a debt due to ESRA.
Note:
Case management debt is defined by section 170.
A case management debt may be recovered by ESRA by action in a court of competent jurisdiction.
Note:
Case management debt is defined by section 170.
If an entity is liable to pay a case management debt, the case management debt may be deducted from one or more other amounts that are payable to an entity as mentioned in subsection 59(1), and if it is so deducted, the other amounts are taken to have been paid in full to the entity.
Note:
Case management debt is defined by section 170.
What this section does
(1) This section allows ESRA to collect money from a person who owes money to an entity that has a case management debt.
Note:
Case management debt is defined by section 170.
ESRA may give direction
(2) ESRA may direct a person (the
third party ) who owes, or may later owe, money (theavailable money ) to the entity to pay some or all of the available money to ESRA in accordance with the direction. ESRA must give a copy of the direction to the entity.Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 (which deal with service of documents) apply to a copy given under this subsection.
Limit on directions
(3) The direction cannot require an amount to be paid to ESRA at a time before it becomes owing by the third party to the entity.
Third party to comply
(4) The third party must comply with the direction, so far as the third party is able to do so.
Penalty: 20 penalty units.
Court orders
(5) If a person is convicted of an offence in relation to a refusal or failure of the third party to comply with subsection (4), the court may (in addition to imposing a penalty on the convicted person) order the convicted person to pay to ESRA an amount up to the amount involved in the refusal or failure of the third party.
Indemnity
(6) Any payment made by the third party under this section is taken to have been made with the authority of the entity and of all other persons concerned, and the third party is indemnified for the payment.
Notice
(7) If the whole of the case management debt of the entity is discharged before any payment is made by the third party, ESRA must immediately give notice to the third party of that fact.
When third party is taken to owe money
(8) The third party is taken to owe money to the entity if:
(a) money is due or accruing by the third party to the entity; or
(b) the third party holds money for or on account of the entity; or
(c) the third party holds money on account of some other person for payment to the entity; or
(d) the third party has authority from some other person to pay money to the entity;
whether or not the payment of the money to the entity is dependent on a pre‑condition that has not been fulfilled.
Co‑operative housing societies—withdrawable shares
(9) For the purposes of this section, money that has been paid by a person to a co‑operative housing society for the issue of withdrawable shares in the capital of the society, but has not been repaid, is taken to be:
(a) if the money is payable on demand—money due by the co‑operative housing society to the person; or
(b) if the money is repayable on demand—money that may become due by the co‑operative housing society to the person.
Definition
(10) In this section:
co‑operative housing society means a society registered or incorporated as a co‑operative housing society or similar society under a law of a State or Territory.
Restraining injunctions
(1) If an entity has engaged, is engaging or is proposing to engage in any conduct in contravention of:
(a) this Act; or
(b) if the entity is accredited under the accreditation scheme—a condition of that accreditation; or
(c) if the entity is engaged under section 58—an agreement under that section; or
(d) the case management document rules in force under section 66; or
(e) a duty of non‑disclosure in force under section 67;
the Federal Court of Australia may, on the application of ESRA, grant an injunction:
(f) restraining the entity from engaging in the conduct; and
(g) if, in the court’s opinion, it is desirable to do so—requiring the entity to do something.
Performance injunctions
(2) If:
(a) an entity has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of:
(i) this Act; or
(ii) if the entity is accredited under the accreditation scheme—a condition of that accreditation; or
(iii) if the entity is engaged under section 58—an agreement under that section; or
(iv) the case management document rules in force under section 66; or
(v) a duty of non‑disclosure in force under section 67;
the Federal Court of Australia may, on the application of ESRA, grant an injunction requiring the person to do that act or thing.
Grant of interim injunction
(1) If an application is made to the court for an injunction under section 175, the court may, before considering the application, grant an interim injunction restraining an entity from engaging in conduct of a kind referred to in that section.
No undertakings as to damages
(2) The court is not to require an applicant for an injunction under section 175, as a condition of granting an interim injunction, to give any undertakings as to damages.
The court may discharge or vary an injunction granted under this Part.
Restraining injunctions
(1) The power of the court under this Part to grant an injunction restraining an entity from engaging in conduct of a particular kind may be exercised:
(a) if the court is satisfied that the entity has engaged in conduct of that kind—whether or not it appears to the court that the entity intends to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the entity will engage in conduct of that kind—whether the entity has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the entity engages in conduct of that kind.
Performance injunctions
(2) The power of the court to grant an injunction requiring an entity to do an act or thing may be exercised:
(a) if the court is satisfied that the entity has refused or failed to do that act or thing—whether or not it appears to the court that the entity intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the entity will refuse or fail to do that act or thing—whether or not the entity has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the entity refuses or fails to do that act or thing.
The powers conferred on the court under this Part are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
State of mind
(1) If, in proceedings for an offence against this Act in respect of conduct engaged in by a corporation, it is necessary to establish the state of mind of the corporation, it is sufficient to show that:
(a) a director, employee or agent of the corporation engaged in that conduct; and
(b) the director, employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and
(c) the director, employee or agent had that state of mind.
Conduct
(2) If:
(a) conduct is engaged in on behalf of a corporation by a director, employee or agent of the corporation; and
(b) the conduct is within the scope of his or her actual or apparent authority;
the conduct is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in by the corporation unless the corporation establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.
Extended meaning of state of mind
(3) A reference in subsection (1) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Extended meaning of director
(4) A reference in this section to a director of a corporation includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.
Extended meaning of engaging in conduct
(5) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
Extended meaning of offence against this Act
(6) A reference in this section to an offence against this Act includes a reference to an offence created by section 5, 6, 7 or 7A or subsection 86(1) of the
Crimes Act 1914 that relates to this Act.
State of mind
(1) If, in proceedings for an offence against this Act in respect of conduct engaged in by a person other than a corporation, it is necessary to establish the state of mind of the person, it is sufficient to show that:
(a) the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
(b) the employee or agent had that state of mind.
Conduct
(2) If:
(a) conduct is engaged in on behalf of a person other than a corporation by an employee or agent of the person; and
(b) the conduct is within the employee’s or agent’s actual or apparent authority;
the conduct is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in by the person unless the person establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.
Limitation on imprisonment
(3) Despite any other provision in this Act, if:
(a) a person is convicted of an offence; and
(b) the person would not have been convicted of the offence if subsections (1) and (2) had not been in force;
the person is not liable to be punished by imprisonment for that offence.
Extended meaning of state of mind
(4) A reference in this section to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Extended meaning of engaging in conduct
(5) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
Extended meaning of offence against this Act
(6) A reference in this section to an offence against this Act includes a reference to an offence created by section 5, 6, 7 or 7A or subsection 86(1) of the
Crimes Act 1914 that relates to this Act.
For the purposes of this Chapter, if a document is given to a partner of a partnership in accordance with section 28A of the
Acts Interpretation Act 1901 , the document is taken to have been given to the partnership.
For the purposes of this Chapter, if a document is given to a member of the executive committee of an unincorporated association in accordance with section 28A of the
Acts Interpretation Act 1901 , the document is taken to have been given to the unincorporated association.
General
(1) The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Write‑off and waiver of debts
(2) In particular, the regulations may provide for ESRA to write off or waive a debt due to ESRA under Chapter 4.
Penalties
(3) The regulations may make provision for penalties by way of a fine not exceeding 10 penalty units for offences against the regulations.
The
All relevant information pertaining to application, saving or transitional provisions prior to 17 June 1999 is not included in this compilation. For subsequent information
Act | Number and year | Date of Assent | Date of commencement | Application, saving or transitional provisions | |
176, 1994 | 19 Dec 1994 | Chapters 1–3 (ss. 1–22), Part 4.6 (ss. 68–115) and Chapter 5 (s. 184): Royal Assent Remainder: 1 Jan 1995 ( | |||
184, 1994 | 23 Dec 1994 | 1 Jan 1995 | — | ||
| |||||
| 43, 1996 | 25 Oct 1996 | Schedule 3 (items 75–112): 23 Dec 1994 | — | |
88, 1995 | 20 July 1995 | S. 77: 6 Nov 1995 ( | — | ||
148, 1995 | 16 Dec 1995 | Schedule 1 (Part 4): 20 Sept 1996 Remainder: Royal Assent | Sch. 1 (items 4, 5, 9, 10 and 56) | ||
84, 1996 | 23 Dec 1996 | Schedule 5 (items 12–16): 1 Jan 1997 Schedule 5 (items 120–122): 20 Mar 1997 | — | ||
29, 1997 | 17 Apr 1997 | 1 July 1997 ( | — | ||
152, 1997 | 24 Oct 1997 | Schedule 2 (items 724–733): 1 Jan 1998 ( | — | ||
44, 1999 | 17 June 1999 | Schedule 7 (items 30, 31): 1 July 1999 ( | Sch. 8 (items 22, 23) [ S. 3(2)(e) (am. by 160, 2000, Sch. 4 [item 4]) | ||
| |||||
| 160, 2000 | 21 Dec 2000 | Schedule 1 (item 21): Royal Assent Remainder: 18 Jan 2001 | — | |
146, 1999 | 11 Nov 1999 | Schedule 1 (items 412–415): 5 Dec 1999 ( | — | ||
156, 1999 | 24 Nov 1999 | Schedule 10 (items 80, 81): 13 Mar 2000 ( | — | ||
10, 2001 | 22 Mar 2001 | Schedule 2 (items 60, 61, 94, 95): 19 Apr 2001 | Sch. 2 (items 94, 95) [ | ||
(a) Section 2 of theStudent Assistance (Youth Training Allowance —Transitional Provisions and Consequential Amendments) Act 1994 provides as follows:
2. This Act commences on 1 January 1995 immediately after the commencement of the
Student Assistance (Youth Training Allowance) Amendment Act 1994 .
(b) TheStudent Assistance (Youth Training Allowance—Transitional Provisions and Consequential Amendments) Act 1994 was amended by Schedule 3 (items 75 –112) only of theStatute Law Revision Act 1996 , subsection 2(3) of which provides as follows:
(3) Each item in Schedule 3 is taken to have commenced when the Act containing the provision amended by the item received the Royal Assent.
(c) TheEmployment Services Act 1994 was amended by section 77 only of theCompetition Policy Reform Act 1995 , subsection 2(2) of which provides as follows:
(2) Part 3 commences on a day to be fixed by Proclamation. However, if Part 3 does not commence by Proclamation within the period of 6 months beginning on the day on which this Act receives the Royal Assent, then it commences on the first day after the end of that period.
(d) TheEmployment Services Act 1994 was amended by Schedule 5 (items 12–16, 120–122) only of theSocial Security Legislation Amendment (Budget and Other Measures) Act 1996 , subsections 2(2) and (3) of which provide as follows:
(2) Schedules 3, 6 and 19, Parts 1, 2 and 5 of Schedule 5 and Part 1 of Schedule 21 commence on 1 January 1997.
(3) Schedules 8, 9, 10, 11, 12 and 17, Parts 3 and 4 of Schedule 5 and Part 2 of Schedule 21 commence on 20 March 1997.
(e) TheEmployment Services Act 1994 was amended by Schedule 2 (items 724–733) only of theAudit (Transitional Provisions) Amendment Act 1997 , subsection 2(2) of which provides as follows:
(2) Schedules 1, 2 and 4 commence on the same day as the
Financial Management and Accountability Act 1997 .
(f) TheEmployment Services Act 1994 was amended by Schedule 7 (items 30, 31) only of theFinancial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 , subsections 3(2)(e) and (16) of which provide as follows:
(2) The following provisions commence on the transfer date:
(e) subject to subsection (12), Schedule 7, other than items 43, 44, 118, 205 and 207 (the commencement of those items is covered by subsections (10), (11) and (13)).
(16) The Governor‑General may, by Proclamation published in the
Gazette , specify the date that is to be the transfer date for the purposes of this Act.
(g) TheEmployment Services Act 1994 was amended by Schedule 1 (items 412–415) only of thePublic Employment (Consequential and Transitional) Amendment Act 1999 , subsections 2(1) and (2) of which provide as follows:
(1) In this Act,
commencing time means the time when thePublic Service Act 1999 commences.(2) Subject to this section, this Act commences at the commencing time.
(h) TheEmployment Services Act 1994 was amended by Schedule 10 (items 81 and 82) only of theCorporate Law Economic Reform Program Act 1999 , subsection 2(2)(c) of which provides as follows:
(2) The following provisions commence on a day or days to be fixed by Proclamation:
(c) the items in Schedules 10, 11 and 12.
(i) TheEmployment Services Act 1994 was amended by Schedule 2 (items 60 and 61) only of theDefence Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001 , subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the 28th day after the day on which it receives the Royal Assent.
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Provision affected | How affected |
S. 4......................................... | am. No. 29, 1997 |
S. 10....................................... | am. No. 29, 1997 |
S. 27....................................... | am. No. 148, 1995 |
S. 28....................................... |
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S. 31....................................... |
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S. 36....................................... |
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S. 39....................................... |
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Subhead. to s. 39(10)............. | am. No. 148, 1995 |
Ss. 40, 41............................... |
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S. 42....................................... | am. No. 84, 1996; No. 10, 2001 |
S. 43....................................... |
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Heading to s. 45..................... | am. No. 148, 1995 |
S. 45....................................... |
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Subheads. to s. 45(3)–(5)....... | am. No. 148, 1995 |
S. 46....................................... |
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S. 47....................................... | am. No. 29, 1997 |
Note to s. 68(2)....................... | am. No. 152, 1997 |
S. 70....................................... | am. No. 148, 1995 |
Ss. 72, 73............................... | rep. No. 152, 1997 |
S. 83....................................... | am. No. 146, 1999 |
Heading to s. 85..................... | rs. No. 152, 1997 |
S. 85....................................... | am. No. 152, 1997 |
S. 87....................................... | am. No. 152, 1997; No. 156, 1999 |
S. 89....................................... | am. No. 152, 1997; No. 156, 1999 |
S. 98....................................... | am. No. 146, 1999 |
S. 105..................................... | rep. No. 152, 1997 |
S. 106..................................... | am. No. 152, 1997 |
S. 107..................................... | rs. No. 152, 1997 |
S. 108..................................... | rep. No. 152, 1997 |
S. 110..................................... | rs. No. 146, 1999 |
S. 111..................................... | am. No. 146, 1999 |
Heading to s. 125................... | am. No. 88, 1995 |
Subheads. to s.125(2)–(4)...... | am. No. 88, 1995 |
S. 125..................................... | am. No. 88, 1995 |
S. 146..................................... | am. No. 29, 1997 |
Heading to s. 149................... | am. No. 148, 1995 |
S. 149..................................... |
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Heading to s. 155................... | am. No. 148, 1995 |
S. 155..................................... |
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S. 160..................................... | am. No. 29, 1997 |
S. 174..................................... | am. No. 44, 1999 |
Subhead to s. 174(9).............. | am. No. 44, 1999 |
Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 (No. 44, 1999)
22
Regulations may deal with transitional, saving or application matters (1) The regulations may deal with matters of a transitional, saving or application nature relating to:
(a) the transition from the application of provisions of the replaced legislation to the application of provisions of the
Banking Act 1959 , theLife Insurance Act 1995 , theFinancial Sector (Transfers of Business) Act 1999 , theFinancial Sector (Shareholdings) Act 1998 or theAustralian Prudential Regulation Authority Act 1998 ; or(b) the transition, for The Cairns Cooperative Weekly Penny Savings Bank Limited, from the application of provisions of the
Financial Intermediaries Act 1996 of Queensland to the application of provisions of any of the Acts referred to in paragraph (a); or(c) the amendments and repeals made by the Schedules to this Act.
(2) Without limiting subitem (1), the regulations may provide for a matter to be dealt with, wholly or partly, in any of the following ways:
(a) by applying (with or without modifications) to the matter:
(i) provisions of a law of the Commonwealth, or of a State or Territory; or
(ii) provisions of a repealed or amended law of the Commonwealth, or of a State or Territory, in the form that those provisions took before the repeal or amendment; or
(iii) a combination of provisions referred to in subparagraphs (i) and (ii);
(b) by otherwise specifying rules for dealing with the matter;
(c) by specifying a particular consequence of the matter, or of an outcome of the matter, for the purposes of a law of the Commonwealth.
(3) Without limiting subitems (1) and (2), the regulations may provide for the continued effect, for the purposes of a provision of a law of the Commonwealth, of a thing done or instrument made, or a class of things done or instruments made, before the transfer date under or for the purposes of a provision of a law of a State or Territory. In the case of an instrument or class of instruments, the regulations may provide for the instrument or instruments to continue to have effect subject to modifications.
(4) Without limiting subitem (3), regulations providing for the continued effect of things done or instruments made may permit all or any of the following matters to be determined in writing by a specified person, or by a person included in a specified class of persons:
(a) the identification of a thing done or instrument made, or a class of things done or instruments made, that is to continue to have effect;
(b) the purpose for which a thing done or instrument made, or a class of things done or instruments made, is to continue to have effect;
(c) any modifications subject to which an instrument made, or a class of instruments made, is to continue to have effect.
(5) Despite subsection 48(2) of the
Acts Interpretation Act 1901 , regulations for the purposes of this item:
(a) may be expressed to take effect from a date before the regulations are notified in the
Gazette ; and(b) may provide for a determination of a kind referred to in subitem (4) to take effect from a date before the determination is made (including a date before the regulations are notified in the
Gazette ).(6) In this item, a reference to a
law ,whether of the Commonwealth or of a State or Territory, includes a reference to an instrument made under such a law.
(7) In this item:
replaced legislation means:
(a) the AFIC Codes; and
(b) the Financial Institutions Codes; and
(c) the Friendly Societies Codes; and
(d) the
Australian Financial Institutions Commission Act 1992 of Queensland, and any Act of another State or of a Territory that provides for the application, as a law of the State or Territory, of the Code set out in section 21 of theAustralian Financial Institutions Commission Act 1992 of Queensland; and(e) the
Financial Institutions (Queensland) Act 1992 of Queensland, and any Act of another State or of a Territory that provides for the application, as a law of the State or Territory, of the Code set out in section 30 of theFinancial Institutions ( Queensland ) Act 1992 of Queensland; and(f) the
Friendly Societies (Victoria) Act 1996 of Victoria, and any Act of another State or of a Territory that provides for the application, as a law of the State or Territory, of the Code set out in the Schedule to theFriendly Societies (Victoria) Act 1996 of Victoria; and(g) the
Friendly Societies ( Western Australia ) Act 1999 ; and(h) any other law of a State or Territory prescribed by the regulations for the purposes of this definition.
The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters required or permitted by this Act to be prescribed.
Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001 (No. 10, 2001)
(1) Regulations that were in effect under any Act immediately before the commencement of this item continue to have effect after that time as if members of an arm of the Defence Force who were members of a particular part or component of that arm immediately before the commencement of this item were still members of that part or component after that time, even if that part or component no longer exists.
Example: Assume that, immediately before the commencement of this item, regulations imposed training obligations on members of the Air Force Specialist Reserve. Those obligations would continue to apply to former members of that Reserve after commencement, even though the Air Force Specialist Reserve itself is no longer mentioned in the
Air Force Act 1923 and the members have now become members of the Air Force Reserve.(2) However, regulations that continue in effect under this item do so only to the extent that they are not amended or revoked by later regulations.
(1) The regulations may make provision in relation to other saving and transitional matters in connection with the amendments made by this Schedule.
(2) In particular, such regulations may deal with the status, after the commencement of the amendments, of persons who were members of the Defence Force immediately before that time.
(3) Subitem (2) does not limit the scope of subitem (1).
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