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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
THE SENATE
Presented
and read a first
time
Reform of Employment
Services Bill 1996
No. ,
1996
(Employment, Education, Training and Youth
Affairs)
A Bill for an Act to reform
employment services, and for related
purposes
9621520—1,165/10.12.1996—(215/96) Cat.
No. 96 5703 7 ISBN 0644 483792
Contents
A Bill for an Act to reform employment services, and for
related purposes
The Parliament of Australia enacts:
This Act may be cited as the Reform of Employment Services Act
1996.
This Act commences on 1 December 1997.
(a) to establish mechanisms to deliver employment services, including
employment assistance; and
(b) to permit the establishment of a competitive market for the provision
of employment services, including employment assistance; and
(c) to provide for flexibility in the forms of employment services,
including employment assistance, that are available.
The following is a simplified outline of this Act:
• This Act sets up a system for the
provision of employment services.
• One part of this system is the
employment assistance scheme.
• The system is based on the Commonwealth
making agreements with entities who will provide employment services. The
agreements are called employment services agreements.
• There are 2 main kinds of employment services
agreement:
(a) employment assistance agreements, which relate to the
employment assistance scheme;
(b) all other types of employment services agreements.
• Under the employment assistance scheme, an
unemployed person who is a participant in the scheme can be
referred to an entity called an employment placement
enterprise.
• The employment placement enterprise provides
employment assistance to the participant.
• The aim of employment assistance is to help
the participant to get work. Employment assistance is intended to be tailored to
the participant’s individual circumstances.
• A participant in the scheme must have an
agreement with the employment placement enterprise. The agreement is called an
Employment Assistance Activity Agreement.
• There are rules to protect personal
information about a person using employment services provided under the
Act.
• There is a system for investigating
complaints about the provision of employment services. There is also a
monitoring system, to ensure that the providers of employment services are
complying with their obligations.
• Advisory committees may be set up to advise
the Employment Secretary about the provision of employment services under the
Act.
• Certain administrative decisions that are
made about the employment assistance scheme can be reviewed.
• If entities who have employment services
agreements owe debts to the Commonwealth related to those agreements, the
Commonwealth can recover the debts in various ways.
• The Commonwealth can seek injunctions in the
Federal Court to ensure employment services providers comply with this Act and
with employment services agreements. There are also criminal penalties for
non-compliance with some provisions of this Act.
In this Act, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
Agency means the Commonwealth Services Delivery Agency
established by the Commonwealth Services Delivery Agency Act
1996.
business day, in relation to the period within which an act
must or may be done, means a day that is not:
(a) a Saturday or Sunday; or
(b) a public holiday in the place in which the act must or may be
done.
document has the meaning given by section 6.
eligible person has the meaning given by
section 17.
employment assistance has the meaning given by
section 10.
Employment Assistance Activity Agreement has the meaning
given by section 40.
employment assistance agreement has the meaning given by
section 13.
employment assistance scheme means the scheme
under which employment placement enterprises provide employment assistance to
participants referred to them under Part 3.
employment placement enterprise means an entity engaged by
the Commonwealth under Part 2 to provide employment assistance.
Employment Secretary means the Secretary to the
Department.
employment services means unemployment benefits (within the
meaning of paragraph 51(xxiiiA) of the Constitution).
employment services agreement has the meaning given by
section 13.
employment services provider means an entity that is engaged
by the Commonwealth under Part 2 to provide employment services.
employment services record has the meaning given by
subsection 52(2).
employment services record rules means:
(a) the rules made under section 53; and
(b) the rules stated in section 54.
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.
participant has the meaning given by
section 27.
personal information means information or an opinion
(including information or an opinion forming part of a database), whether true
or not, and whether recorded in a material form or not, about an individual
whose identity is apparent, or can reasonably be ascertained, from the
information or opinion.
record means:
(a) a document; or
(b) a database (however kept); or
(c) a photograph or other pictorial representation of a person;
but does not include:
(d) a generally available publication; or
(e) anything kept in a library, art gallery or museum for the purposes of
reference, study or exhibition; or
(f) Commonwealth records as defined by subsection 3(1) of the
Archives Act 1983 that are in the open access period for the purposes of
that Act; or
(g) documents placed by or on behalf of a person (other than an agency) in
the memorial collection within the meaning of the Australian War Memorial Act
1980; or
(h) letters or other articles in the course of transmission by
post.
sensitive personal information means personal information
about a person that relates to the person’s:
(a) racial or ethnic origin; or
(b) religious or philosophical beliefs; or
(c) trade union membership; or
(d) sexual orientation; or
(e) health; or
(f) criminal record.
Social Security Secretary means the Secretary to the
Department administered by the Minister administering the Social Security Act
1991.
SSAT means the Social Security Appeals Tribunal.
(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 writing can be reproduced with
or without the aid of anything else; or
(d) a map, plan, drawing or photograph.
(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 any part of the
document; or
(c) any part of such a copy, reproduction or duplicate.
This Act binds the Crown in right of the Commonwealth, of each of the
States, of the Australian Capital Territory and of the Northern Territory.
However, the Crown is not liable to prosecution for an offence against this
Act.
The following is a simplified outline of this Part:
• The Commonwealth may make an employment
services agreement with an entity under which the entity agrees to provide
employment services.
• One kind of employment services agreement is
an employment assistance agreement. Under this kind of agreement, the employment
placement enterprise agrees to provide employment assistance to participants in
the employment assistance scheme.
• Factors specified by the Minister may affect
the Commonwealth’s choice of an employment placement enterprise to provide
employment assistance.
(1) The Employment Secretary may, on behalf of the Commonwealth, engage an
entity to provide employment services.
(2) The terms and conditions of the engagement of an entity under this
Part are to be set out in a written agreement between the Employment Secretary,
on behalf of the Commonwealth, and the entity.
(1) Without limiting section 9, the Employment Secretary may, on
behalf of the Commonwealth, engage an entity (an employment placement
enterprise) to provide employment assistance to participants who are
referred to the enterprise under Part 3.
(2) For the purposes of this Act, the provision of employment
assistance consists of assistance to a person that:
(a) is based on an assessment of the person’s individual
circumstances; and
(b) is aimed either at enabling the person to gain employment or at
improving the person’s prospects of gaining employment.
(3) The Minister may make a written determination providing that the
provision of specified services to participants is taken to be the provision of
employment assistance for the purposes of this Act. A determination has effect
accordingly.
(4) The Minister may make a written determination providing that the
provision of specified services to participants is taken not to be the provision
of employment assistance for the purposes of this Act. A determination has
effect accordingly.
(5) A determination under this section is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) The Minister may make a written determination specifying:
(a) the matters to be taken into account by the Employment Secretary in
deciding, on behalf of the Commonwealth, to engage an employment placement
enterprise under section 10; and
(b) the procedures to be followed by the Employment Secretary in relation
to the decision and the engagement.
A determination has effect accordingly.
(2) A determination under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) This section applies to employment assistance agreements.
(2) It is a condition of an agreement that employment placement
enterprises must not demand or receive any fee or other similar consideration
from a participant in respect of employment assistance provided by the
enterprise under the agreement.
(3) It is a condition of an agreement that the employment placement
enterprise must comply with a notice given to the enterprise under section 51
(which deals with information about compliance with Employment Assistance
Activity Agreements).
(1) An agreement under this Part is an employment services
agreement.
(2) An employment services agreement must contain a statement to the
effect that it is an employment services agreement within the meaning of this
Act.
(3) An employment services agreement may also:
(a) be an employment assistance agreement; or
(b) include an employment assistance agreement.
(4) An employment assistance agreement is an agreement under
this Part under which an employment placement enterprise undertakes to provide
employment assistance to participants referred to it under Part 3.
(5) An employment assistance agreement must contain a statement to the
effect that it is an employment assistance agreement within the meaning of this
Act.
(1) An employment services agreement is not rendered unlawful or
unenforceable by a prescribed State or Territory enactment.
(2) Nothing in a prescribed State or Territory enactment
operates:
(a) to prevent an entity discharging obligations or exercising rights
under an employment services agreement; or
(b) to prevent a person who is acting on behalf of an entity assisting the
entity to discharge obligations or exercise rights under an employment services
agreement; or
(c) to subject an entity to a liability or a penalty by reason only that
the entity has discharged such obligations or exercised such rights;
or
(d) to subject a person who is acting on behalf of an entity to a
liability or a penalty by reason only that the person has assisted the entity to
discharge such obligations or exercise such rights.
(3) A prescribed State or Territory enactment that would, but for this
subsection, apply to, or in relation to, the conduct of an entity, or a person
acting on behalf of the entity, does not so apply if the conduct in question is
required or authorised by:
(a) this Act or the regulations; or
(b) an employment services agreement to which the entity is a
party.
(4) In this section:
State or Territory enactment means:
(a) a State Act; or
(b) an Act of the Australian Capital Territory or the Northern Territory;
or
(c) an instrument made or issued under such an Act; or
(d) a part of such an Act, enactment or instrument.
The Employment Secretary may enter into service arrangements with
the Chief Executive Officer of the Agency in connection with employment
services.
The following is a simplified outline of this Part:
• People registered as unemployed with the
Employment Secretary may become eligible persons.
• Eligible persons may be interviewed, and
after interview they may become participants in the
employment assistance scheme.
• If a person is a participant, he or she will
be referred to an employment placement enterprise by the
Employment Secretary.
• Referral to an employment placement
enterprise means the participant receives employment assistance
from the enterprise.
• Certain events may mean that a person stops
being an eligible person, or a participant, or that a referral to an employment
placement enterprise comes to an end.
(1) The Minister may make a written determination that a person included
in a specified class of persons becomes an eligible person for the purposes of
this Act at a specified time if, at that time:
(a) persons included in that class are registered with the Employment
Secretary; or
(b) employment services are being provided by or on behalf of the
Commonwealth to or in respect of persons included in that class.
(2) A determination may also specify:
(a) events or circumstances that are disqualifying events for the purposes
of this Act; and
(b) matters to be taken into account by the Employment Secretary for the
purposes of making a determination under section 25.
Note 1: A disqualifying event, in relation to a person,
means that the person ceases to be an eligible person (see sections 19 and
25).
Note 2: The Employment Secretary may make a determination
under section 25 that a person is no longer an eligible
person.
(3) A determination has effect accordingly.
(4) If the Employment Secretary is satisfied that there are special
circumstances, the Employment Secretary may make a written determination that a
specified person becomes an eligible person for the purposes of this Act at a
specified time if, at that time:
(a) the person is registered with the Employment Secretary; or
(b) employment services are being provided by or on behalf of the
Commonwealth to or in respect of the person.
A determination has effect accordingly.
(5) For the purposes of this section, a person is registered with the
Employment Secretary if, and only if, the person is registered by the Employment
Secretary as being unemployed.
(6) A determination under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
A determination by the Minister under subsection 17(1) does not have
effect in relation to a person if a determination has been made in relation to
the person under section 23 (determination that person is not to become
eligible person).
(1) An eligible person remains an eligible person until a disqualifying
event happens in relation to the person.
(2) A particular event or circumstance is a disqualifying event for the
purposes of subsection (1) if a failure to make a determination under
section 17 specifying the event or circumstance as a disqualifying event
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.
(1) If the Employment Secretary forms the opinion that it is reasonably
likely that a person will become an eligible person, the Employment Secretary
may notify the person (in writing or otherwise) of that opinion and of the fact
that the person may be considered for referral to an employment placement
enterprise for employment assistance.
(2) If the Employment Secretary has so notified the person, the Employment
Secretary may do either or both of the following:
(a) ask the person:
(i) to attend an interview with the Agency; or
(ii) to take part in an interview with the Agency by telephone, video-link
or similar means;
(b) ask the person to attend an interview with a person nominated by the
Employment Secretary.
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.
Person to be notified
(1) If:
(a) a person becomes an eligible person; and
(b) the person has not been referred to an employment placement enterprise
at any time since becoming an eligible person;
the Employment Secretary may give the person a written notice stating that
the person is an eligible person and may be considered for referral to an
employment placement enterprise for employment assistance.
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.
Person may be interviewed
(2) If the Employment Secretary has given notice under
subsection (1), the Employment Secretary may do either or both of the
following:
(a) ask the person:
(i) to attend an interview with the Agency; or
(ii) to take part in an interview with the Agency by telephone, video-link
or similar means;
(b) ask the person to attend an interview with a person nominated by the
Employment Secretary.
Person may be interviewed more than once
(3) If:
(a) a person has attended or taken part in an interview under this
section; and
(b) the person is an eligible person; and
(c) the Employment Secretary considers it desirable for the person to
attend or take part in another interview, either with the Agency or with a
person nominated by the Employment Secretary;
the Employment Secretary may ask the person to attend or take part in
another interview.
Person who fails to attend interview
(4) If:
(a) the Employment Secretary asks the person to attend or take part in an
interview under this section; and
(b) the person does not attend or take part in an interview, as the case
requires; and
(c) the person is an eligible person;
the Employment Secretary may ask the person to attend or take part in
another interview.
(1) If a person refuses or fails to comply with a reasonable request under
section 20 or 21 of this Act, section 630C of the Social Security Act
1991 and section 114 of the Student 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:
(i) subsection 630C(3) of the Social Security Act 1991;
and
(ii) subsection 114(2) of the Student and Youth Assistance Act
1973;
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 for a period unless the person
had a reasonable excuse for not complying with the request.
(2) This section applies whether the person refuses or fails to comply
with a request under section 20 or 21 once or more than
once.
(1) If:
(a) a person has attended or taken part in an interview with the Agency
under section 20; and
(b) the person is not an eligible person; and
(c) the Employment Secretary forms the opinion that it is reasonably
likely that the person will, but for this section, become an eligible
person;
the Employment Secretary may make a written determination that the person
is not, despite section 17, to become an eligible person. A determination
has effect accordingly.
(2) In making a determination under subsection (1), the Employment
Secretary must take into account any matters specified in a written
determination made by the Minister for the purposes of
section 17.
If the Employment Secretary makes a determination about a person under
section 23, the Employment Secretary must give the person written notice of the
determination.
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.
(1) If a person has attended or taken part in an interview with the Agency
under section 20 or 21, the Employment Secretary may make a written
determination that the person is no longer an eligible person. A
determination is a disqualifying event for the purposes of
subsection 19(1).
(2) In making a determination under subsection (1), the Employment
Secretary must take into account any matters specified in a written
determination made by the Minister for the purposes of
section 17.
If the Employment Secretary makes a determination about a person under
section 25, the Employment Secretary must give the person written notice of
the determination.
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.
If:
(a) a person has attended or taken part in an interview with the Agency
under section 20 or 21; and
(b) the person is an eligible person; and
(c) the Employment Secretary considers that the person could reasonably be
referred to an employment placement enterprise;
the Employment Secretary may make a written determination that the person
is a participant in the employment assistance scheme. A determination has effect
accordingly.
(1) If the Employment Secretary considers that a participant could not
reasonably be referred to an employment placement enterprise, the Employment
Secretary may make a determination to that effect. The determination is a
terminating event for the purposes of section 29.
(2) If the Employment Secretary makes a determination about a person under
subsection (1), the Employment Secretary must give the person written notice of
the determination.
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.
(1) A participant remains a participant until a terminating event happens
in relation to the participant.
(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.
(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
benefit.
(4) A determination under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) If the Employment Secretary makes a determination about a person under
section 27, the Employment Secretary must give the person written notice of
the determination.
(2) The notice must:
(a) give the person such information about the employment assistance
scheme as the Employment Secretary approves in writing; and
(b) inform the person that the Employment Secretary proposes to refer the
person to an employment placement enterprise; and
(c) inform the person that upon referral to an employment placement
enterprise the person is required to enter an Employment Assistance Activity
Agreement.
Note 1: The requirement to enter an Employment Assistance
Activity Agreement is imposed by section 40.
Note 2: Sections 28A and 29 of the Acts Interpretation
Act 1901 (which deal with service of documents) apply to a written notice
given under this section.
(1) If the Employment Secretary considers that the person could reasonably
be referred to one of a number of employment placement enterprises, the notice
under section 30 must also ask the person to nominate, from that number, an
employment placement enterprise to which he or she wishes to be
referred.
(2) If the notice asks the person to nominate an enterprise, the notice
must also state that the person’s nomination must be in writing and must
be given to the Employment Secretary within 5 business days after the day on
which the person is given the notice.
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 section.
Person nominates within 5 business
days
(1) If:
(a) the notice under section 30 asks the person to nominate an
employment placement enterprise; and
(b) the Employment Secretary receives a written nomination from a person
within 5 business days after the day on which the person was given the notice;
and
(c) the Employment Secretary considers that the person could reasonably be
referred to the employment placement enterprise nominated;
the Employment Secretary must decide to refer the person to the enterprise
nominated.
Person fails or declines to nominate within 5 business
days
(2) If:
(a) the notice under section 30 asks the person to nominate an
employment placement enterprise; and
(b) either:
(i) the Employment Secretary does not receive a written nomination from
the person within 5 business days after the day on which the person was given
the notice; or
(ii) within 5 business days after the day on which the person was given
the notice, the person tells the Employment Secretary that the person does not
intend to nominate an employment placement enterprise; and
(c) the Employment Secretary considers that the person could reasonably be
referred to an employment placement enterprise;
the Employment Secretary must decide to refer the person to an enterprise
nominated by the Employment Secretary.
No choice of enterprise available
(3) If the Employment Secretary considers that the person could reasonably
be referred to one employment placement enterprise only, the Employment
Secretary must decide to refer the person to that enterprise.
(1) This section applies to a person who has been referred to an
employment placement enterprise (the original employment placement
enterprise) under this Part.
(2) The Employment Secretary may decide to terminate the person’s
referral to the original employment placement enterprise.
(3) As soon as practicable after the Employment Secretary decides to
terminate the person’s referral to the original employment placement
enterprise, the Employment Secretary 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.
(4) A decision to terminate the person’s referral takes effect when
the notice under subsection (3) is given.
(5) If the Employment Secretary is of the opinion that a person given a
notice under subsection (3) could reasonably be referred to another employment
placement enterprise:
(a) the notice must:
(i) inform the person that the Employment Secretary proposes to refer the
person to another employment placement enterprise; and
(ii) if the Employment Secretary considers that the person could
reasonably be referred to one of a number of employment placement
enterprises—ask the person to nominate, from that number, an employment
placement enterprise to which he or she wishes to be referred; and
(iii) if the notice asks the person to nominate an enterprise—state
that the person’s nomination must be in writing and must be given to the
Employment Secretary within 5 business days after the day on which the person is
given the notice; or
(b) the Employment Secretary must ask the person to do either or both of
the following:
(i) to attend an interview with the Agency, or to take part in an
interview with the Agency by telephone, video-link or similar means;
or
(ii) to attend an interview with a person nominated by the Employment
Secretary.
(6) If:
(a) the Employment Secretary asks a person to attend or take part in an
interview under paragraph (5)(b) 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;
the Employment Secretary may ask the person to attend or take part in
another interview.
(1) If a person refuses or fails to comply with a reasonable request under
paragraph 33(5)(b) or subsection 33(6) of this Act, section 630C
of the Social Security Act 1991 and section 114 of the Student
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:
(i) subsection 630C(3) of the Social Security Act 1991;
and
(ii) subsection 114(2) of the Student and Youth Assistance Act
1973;
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 for a period unless the person
had a reasonable excuse for not complying with the request.
(2) This section applies whether the person refuses or fails to comply
with a request under section 33 once or more than once.
(1) This section applies to a person if the Employment Secretary has given
the person a notice, under paragraph 33(5)(a), stating that the Employment
Secretary proposes to refer the person to another employment placement
enterprise.
Person nominates within 5 business days
(2) If:
(a) the notice asks the person to nominate an employment placement
enterprise; and
(b) the Employment Secretary receives a written nomination from a person
within 5 business days after the day on which the person was given the notice;
and
(c) the Employment Secretary considers that the person could reasonably be
referred to the employment placement enterprise nominated;
the Employment Secretary must decide to refer the person to the enterprise
nominated.
Person fails or declines to nominate within 5 business
days
(3) If:
(a) the notice asks the person to nominate an employment placement
enterprise; and
(b) either:
(i) the Employment Secretary does not receive a written nomination from a
person within 5 business days after the day on which the person was given the
notice; or
(ii) within 5 business days after the day on which the person was given
the notice, the person tells the Employment Secretary that the person does not
intend to nominate an employment placement enterprise; and
(c) the Employment Secretary considers that the person could reasonably be
referred to an employment placement enterprise;
the Employment Secretary must decide to refer the person to an enterprise
nominated by the Employment Secretary.
No choice of enterprise available
(4) If the Employment Secretary considers that the person could reasonably
be referred to one employment placement enterprise only, the Employment
Secretary must decide to refer the person to that enterprise.
(1) This section applies to a person if the Employment Secretary has asked
the person to attend or take part in an interview under
section 33.
Person nominates within 5 business days
(2) If:
(a) the person is asked at, before or after, the interview, to nominate an
employment placement enterprise to which he or she wishes to be referred;
and
(b) the Employment Secretary receives a written nomination from a person
within 5 business days after the day on which the person was asked;
and
(c) the Employment Secretary considers that the person could reasonably be
referred to the employment placement enterprise nominated;
the Employment Secretary must decide to refer the person to the enterprise
nominated.
Person fails or declines to nominate within 5 business
days
(3) If:
(a) the person is asked, at, before or after, the interview, to nominate
an employment placement enterprise to which he or she wishes to be referred;
and
(b) either:
(i) the Employment Secretary does not receive a written nomination from a
person within 5 business days after the day on which the person was asked;
or
(ii) within 5 business days after the day on which the person was asked,
the person tells the Employment Secretary that the person does not intend to
nominate an employment placement enterprise; and
(c) the Employment Secretary considers that the person could reasonably be
referred to an employment placement enterprise;
the Employment Secretary must decide to refer the person to an enterprise
nominated by the Employment Secretary.
No choice of enterprise available
(4) If the Employment Secretary considers that the person could reasonably
be referred to one employment placement enterprise only, the Employment
Secretary must decide to refer the person to that enterprise.
(1) If the Employment Secretary decides to refer a person to an employment
placement enterprise, the Employment Secretary must give the person and the
enterprise written notice of the decision.
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.
(2) The notice must be given as soon as practicable after the date of the
decision.
(1) If the Employment Secretary decides to terminate a person’s
referral to an employment placement enterprise (under section 33), the
Employment Secretary must give the person and the enterprise written notice of
the decision.
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.
(2) The notice must be given as soon as practicable after the date of the
decision.
The following is a simplified outline of this Part:
• A participant in the employment
assistance scheme must enter an Employment Assistance Activity
Agreement.
• The Agreement is an agreement between the
participant and the employment placement enterprise to which the participant is
referred.
• Rules under the Social Security Act and the
Student and Youth Assistance Act apply to Employment Assistance Activity
Agreements.
(1) This section applies to a person who has been referred to an
employment placement enterprise under Part 3.
(2) The person is to have a written agreement with the employment
placement enterprise. The agreement is to be known as the Employment
Assistance Activity Agreement. The agreement is to be in a form approved
by the Employment Secretary and the Social Security Secretary.
(3) If the person is not a party to an Employment Assistance Activity
Agreement, the Employment Secretary must require the person to enter into such
an agreement.
(4) If the person is already a party to an Employment Assistance Activity
Agreement, the Employment Secretary may require the person to enter into another
such agreement instead of the existing one.
(5) If the person is required to enter into an Employment Assistance
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.
(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 employment placement enterprise to:
(a) if the enterprise is an individual—the enterprise; or
(b) if the enterprise is a body corporate—a director or employee of
the enterprise; or
(c) if the enterprise is a partnership—an individual who is a
partner in, or an employee of, the enterprise; or
(d) in any other case—an officer or employee of the
enterprise.
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.
(7) A reference in this Act or any other law of the Commonwealth to a
function conferred on an employment placement enterprise under this Act includes
a reference to a power delegated under subsection (6) in relation to the
enterprise.
(1) An Employment Assistance Activity Agreement between an employment
placement enterprise and a person is to be directed to gaining employment for
the person. The agreement is to require the person to undertake activities that
will, in the opinion of the Employment Secretary, enable the person to gain
employment or improve the person’s prospects of gaining
employment.
(2) Without limiting subsection (1), the activities the person may be
required to undertake include the following:
(a) a job search;
(b) a training course;
(c) paid work experience;
(d) voluntary work;
(e) measures designed to remedy or reduce any disadvantage the person has
in the labour market.
(3) An Employment Assistance Activity Agreement between an employment
placement enterprise and a person may include terms requiring the person (on
request or otherwise) to:
(a) attend an office of the Agency or of the employment placement
enterprise; or
(b) contact the Agency or the employment placement enterprise;
or
(c) give information to the Agency or to the employment placement
enterprise.
(4) An Employment Assistance Activity Agreement between an employment
placement enterprise and a person may include terms requiring the person (on
request or otherwise) to establish to the enterprise his or her compliance with
the terms of the agreement.
(1) The terms of an Employment Assistance Activity 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.
(2) In considering whether to approve the terms of an agreement between an
employment placement enterprise 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.
(3) In having regard to the 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.
(4) 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
employment placement enterprise to:
(a) if the enterprise is an individual—the enterprise; or
(b) if the enterprise is a body corporate—a director or employee of
the enterprise; or
(c) if the enterprise is a partnership—an individual who is a
partner in, or an employee of, the enterprise; or
(d) in any other case—an officer or employee of the
enterprise.
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.
(5) A reference in this Act or any other law of the Commonwealth to a
function conferred on an employment placement enterprise under this Act includes
a reference to a power delegated under subsection (4) in relation to the
enterprise.
(1) An Employment Assistance Activity Agreement between an employment
placement enterprise and a person:
(a) may be varied or suspended; and
(b) if another Employment Assistance 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.
(2) If:
(a) an Employment Assistance Activity Agreement between an employment
placement enterprise and a person is in force; and
(b) a decision of the Employment Secretary under section 33 to terminate
the person’s referral to the employment placement enterprise takes
effect;
the agreement is taken to be cancelled when the decision takes
effect.
(1) This Division applies to a person who is a participant in the
employment assistance scheme.
(2) For the purposes of this Division, the person’s
participation period is the period:
(a) beginning when the determination that the person is a participant was
made (under section 27); and
(b) ending when the person ceases to be a participant.
(1) 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 participation period; and
(b) the person enters into an Employment Assistance Activity Agreement
with an employment placement enterprise;
the Newstart Activity Agreement or Youth Training Activity Agreement, as
the case requires, ceases to be in force immediately before the Employment
Assistance Activity Agreement comes into force.
(2) The person is not to be required to enter into a Newstart Activity
Agreement or Youth Training Activity Agreement during the person’s
participation period.
(1) 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
the Student and Youth Assistance Act 1973, as the case may be):
(a) when the person is required under section 40 to enter into an
Employment Assistance 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 relevant
Secretary that the person is taking reasonable steps to comply with the terms of
the agreement; and
(c) if the person is required under section 40 to enter into another
agreement instead of the existing agreement, the person enters into that other
agreement.
(2) For the purposes of paragraph (1)(b), a person is taking reasonable
steps to comply with the terms of an Employment Assistance 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.
(3) In this section:
relevant Secretary means:
(a) in relation to qualification for a newstart allowance—the Social
Security Secretary; and
(b) in relation to qualification for a youth training allowance—the
Secretary to the Department administered by the Minister administering the
Student and Youth Assistance Act 1973.
(1) During the person’s participation 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
an Employment Assistance Activity Agreement.
(2) During the person’s participation 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 Secretary
and the person were a reference to an Employment Assistance Activity Agreement
between an employment placement enterprise and the person.
(3) During the person’s participation period, section 607 of the
Social Security Act 1991 has effect, in relation to the person, as
if:
(a) a reference in that section to a notice under subsection 605(3) of
that Act were a reference to a notice under subsection 40(5) of this Act;
and
(b) a reference in that section to a Newstart Activity Agreement were a
reference to an Employment Assistance Activity Agreement.
(4) During the person’s participation period, sections 608, 613, 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 an Employment Assistance Activity Agreement.
(1) During the person’s participation 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 an Employment Assistance Activity Agreement.
(2) During the person’s participation 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 Secretary and the person were a reference to an Employment
Assistance Activity Agreement between an employment placement enterprise and the
person.
(3) During the person’s participation period, section 81 of the
Student and Youth Assistance Act 1973 has effect, in relation to the
person, as if:
(a) a reference in that section to a notice under subsection 79(3) of that
Act were a reference to a notice under subsection 40(5) of this Act;
and
(b) a reference in that section to a Youth Training Activity Agreement
were a reference to an Employment Assistance Activity Agreement.
(4) During the person’s participation 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 an Employment Assistance Activity
Agreement.
This Division has effect despite anything in the Social Security Act
1991 and Part 8 of the Student and Youth Assistance Act
1973.
In this Division:
Newstart Activity Agreement has the same meaning as in the
Social Security Act 1991.
newstart allowance has the same meaning as in the Social
Security Act 1991.
participation period has the meaning given by subsection
44(2).
Youth Training Activity Agreement has the same meaning as in
Part 8 of the Student and Youth Assistance Act 1973.
youth training allowance has the same meaning as in Part 8 of
the Student and Youth Assistance Act 1973.
(1) This section applies if an Employment Assistance Activity Agreement
between an employment placement enterprise and a person is in force.
(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 the Student 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.
(3) The Employment Secretary may, by written notice given to the person or
the employment placement enterprise, require the person or the employment
placement enterprise, 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: An employment placement enterprise that contravenes
the notice is in breach of its employment services agreement with the
Commonwealth (see section 12).
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.
(4) The information is to be given within the period and in the manner
specified in the notice.
(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 the Student 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:
(i) subsection 630C(3) of the Social Security Act 1991;
and
(ii) subsection 114(2) of the Student and Youth Assistance Act
1973;
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 person for a period unless the person
had a reasonable excuse for not complying.
(1) This Division applies to a record that:
(a) is connected with the provision, or anticipated provision, of
employment services to a person by an employment services provider under an
employment services agreement; and
(b) is a record of personal information about the person.
Note: Personal information is defined in
section 5.
(2) The Employment Secretary may make a written determination that
specified records are employment services records for the purposes
of this Part.
(3) The Employment Secretary must consult the Privacy Commissioner before
making a determination under this section.
(4) A determination under this section is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) The Employment Secretary may, by written instrument, make rules about
any or all of the following:
(a) the provision of employment services records by the Employment
Secretary to employment services providers;
(b) the creation of such records by employment services
providers;
(c) the handling, copying and storage of such records;
(d) the amendment of such records;
(e) the return of such records to the Employment Secretary;
(f) the destruction of copies of such records held by employment services
providers;
(g) the retention of such records by employment services
providers;
(h) the giving of information relating to the employment services record
rules, where the information is provided to a person who is or has been using
employment services provided under an employment services agreement;
(i) the imposing of penalties, of not more than $500, for any breach of
the employment services record rules;
(j) the form in which a consent under section 54 is to be
given.
(2) The Employment Secretary must consult the Privacy Commissioner and the
Director-General of the Australian Archives before making an instrument under
this section.
(3) An instrument under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) This section sets out rules relating to records that consist of, or
contain, sensitive personal information about a person.
Note: Sensitive personal information is
defined in section 5.
Prohibition on Employment Secretary
(2) The Employment Secretary may not provide a record referred to in
subsection (1) to an employment services provider unless both subsections (3)
and (4) apply.
Circumstances that may affect prohibition
(3) This subsection applies if either:
(a) the person to whom the record relates consents; or
(b) the person to whom the record relates:
(i) was made aware, at the time the sensitive personal information was
collected, that the information could be provided to an employment services
provider; and
(ii) has been consulted, to the extent practicable, about the proposed
provision of the record to the employment services provider.
More circumstances that may affect prohibition
(4) This subsection applies if the Employment Secretary is satisfied that
the record does not include:
(a) information about another person; or
(b) information that is irrelevant to the purpose for which the record is
provided.
Guidelines
(5) The Employment Secretary must publish guidelines to assist in
identifying information that is irrelevant for the purposes of paragraph
(4)(b).
Consultation with Privacy Commissioner
(6) The Employment Secretary must consult the Privacy Commissioner before
publishing the guidelines.
Prohibition on employment services provider
(7) An employment services provider must not provide a record of sensitive
personal information to a person unless:
(a) the person to whom the record relates consents; or
(b) the Employment Secretary is satisfied that the provision of the record
is justified despite the absence of the person’s consent.
Guidelines
(8) The Employment Secretary must publish guidelines to assist in
identifying circumstances in which the provision of a record is justified under
paragraph (7)(b).
Consultation with Privacy Commissioner
(9) The Employment Secretary must consult the Privacy Commissioner before
publishing the guidelines.
Form of consent
(10) The consent of a person to the provision of sensitive personal
information under paragraph (3)(a) or (7)(a) must be in writing and in a form
specified in the rules made under section 53.
Crimes Act 1914 not affected
(11) 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).
(1) The employment services record rules must not be inconsistent with the
Archives Act 1983.
(2) An employment services record is taken to be a Commonwealth record for
the purposes of the Archives Act 1983.
(3) The employment services record rules must not be inconsistent with the
Privacy Act 1988.
Note: Employment services record rules and
employment services record are defined in
section 5.
(1) The object of this section is to create duties of non-disclosure for
the purposes of the application to employment services providers of section 70
of the Crimes Act 1914.
Note: Section 70 of the Crimes Act 1914 deals with
disclosure of information by Commonwealth officers. Under
paragraph (c) of the definition of Commonwealth officer in
subsection 3(1) of the Crimes Act 1914, a person who performs services
for or on behalf of the Commonwealth (such as an employee of an employment
services provider providing services under an employment services agreement) is
treated as a Commonwealth officer.
(2) This section applies to the following individuals associated with an
entity that is an employment services provider:
(a) if the entity is an individual—the entity; or
(b) if the entity is a body corporate—a director or employee of the
entity; or
(c) if the entity is a partnership—an individual who is a partner
in, or an employee of, the entity; or
(d) in any other case—an officer or employee of the
entity.
(3) Subject to subsections (4) and (5), a person who is or has been a
person mentioned in subsection (2) must not disclose:
(a) information concerning a person (the person concerned)
that is contained in an employment services record; or
(b) information concerning a person (the person concerned),
if the information has been acquired in the course of performing functions under
or for the purposes of this Act;
to any person other than the person concerned.
(4) Subsection (3) does not apply to a person who discloses the
information for the purpose of performing functions under or for the purposes of
this Act.
(5) Subsection (3) does not apply to the disclosure of information
if:
(a) the person concerned has consented to the disclosure; or
(b) the person concerned is aware, or is reasonably likely to be aware,
that information of that kind is usually communicated to that person;
or
(c) the employment services provider concerned reasonably believes the
disclosure is necessary to prevent or lessen a serious and imminent threat to
the life or health of the person concerned or of any other individual;
or
(d) the disclosure is required, or authorised, by or under a law;
or
(e) the disclosure is reasonably necessary for the enforcement of a
criminal law or of a law imposing a pecuniary penalty, or for the protection of
the public revenue.
The object of this Part is to empower the Employment Secretary to
investigate certain matters relating to the provision of employment services by
entities under employment services agreements.
This Part applies to the following matters:
(a) the performance of functions, and the exercise of powers, by
persons acting as delegates of the Employment Secretary under Part 3 (which
deals with the referral of persons to employment placement
enterprises);
(b) the provision of employment services by entities under employment
services agreements;
(c) a breach of an employment services agreement;
(d) a contravention of the employment services record rules in force under
Division 1 of Part 5;
(e) a contravention of a duty of non-disclosure in force under
section 56.
(1) A person may complain to the Employment Secretary about a
matter.
Note: Matter is defined in
section 58.
(2) A complaint must be in writing.
(3) A complaint must specify, as the respondent in relation to the
complaint, the entity against whom the complaint is made.
(1) The Employment Secretary may investigate a matter if:
(a) a complaint is made under section 59; or
(b) the Employment Secretary considers that it is desirable to investigate
the matter.
Note: Matter is defined in
section 58.
(2) The Employment Secretary must investigate a matter if the Minister
asks the Employment Secretary to investigate the matter.
Note: Matter is defined in
section 58.
If a complaint has been made, or purportedly made, to the Employment
Secretary under section 59, the Employment Secretary may make inquiries of
the respondent for the purposes of determining:
(a) whether the Employment Secretary has power to investigate the matter
to which the complaint relates; or
(b) whether the Employment Secretary should, in his or her discretion,
investigate the matter.
(1) This section applies if:
(a) a complaint has been made, or purportedly made, to the Employment
Secretary under section 59; and
(b) the Employment Secretary decides that:
(i) he or she does not have power to investigate the matter to which the
complaint relates; or
(ii) he or she should not investigate the matter; and
(c) the Employment Secretary forms the opinion that the matter could be
more conveniently dealt with by the Chief Executive Officer of the Agency or by
the Social Security Secretary.
(2) The Employment Secretary must refer the complaint to the Chief
Executive Officer of the Agency or to the Social Security Secretary, as the case
requires.
(1) Before starting an investigation of a matter to which a complaint
relates, the Employment Secretary must tell the respondent that the matter is to
be investigated. However, this rule does not apply if the Employment Secretary
considers that, because of special circumstances, the investigation could be
prejudiced if the respondent were to be told at that stage.
(2) An investigation under this Part is to be conducted as the Employment
Secretary thinks fit.
(3) The Employment Secretary may, for the purposes of an investigation,
obtain information from such persons, and make such inquiries, as he or she
thinks fit.
(4) Subject to subsection (5), it is not necessary for a complainant
or a respondent to be given an opportunity to appear before the Employment
Secretary in connection with an investigation.
(5) The Employment Secretary must not, as a result of an investigation,
make a finding that is adverse to a complainant or a respondent unless the
Employment Secretary has given the complainant or respondent, as the case
requires, an opportunity to make submissions about the matter to which the
investigation relates.
(1) This section applies if, after starting an investigation of a matter
to which a complaint relates, the Employment Secretary decides not to
investigate the matter further.
(2) The Employment Secretary must inform the complainant and the
respondent of the decision and of the reasons for the decision.
(3) The Employment Secretary must so inform the complainant and the
respondent:
(a) as soon as practicable after the Employment Secretary makes the
decision; and
(b) in such manner as the Employment Secretary thinks fit.
(1) If, before the Employment Secretary starts, or after he or she has
started, an investigation of a matter to which a complaint relates, the
Employment Secretary forms the opinion that:
(a) a complaint relating to that matter has been, or could have been, made
by the complainant to the Ombudsman under the Ombudsman Act 1976;
and
(b) the matter could be more conveniently or effectively dealt with by the
Ombudsman;
the Employment Secretary may decide not to investigate the matter, or not
to investigate the matter further, as the case may be.
(2) If the Employment Secretary so decides, he or she must:
(a) transfer the complaint to the Ombudsman; and
(b) give written notice to the complainant stating that the complaint has
been so transferred; and
(c) give to the Ombudsman any information or documents that relate to the
complaint and that are in the Employment Secretary’s possession or under
his or her control.
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.
(3) A complaint transferred under this section to the Ombudsman is taken
to be a complaint made to the Ombudsman under the Ombudsman Act
1976.
(1) If, before the Employment Secretary starts, or after he or she has
started, an investigation of a matter to which a complaint relates, the
Employment Secretary forms the opinion that the matter could be more
conveniently or effectively dealt with by the Australian Competition and
Consumer Commission, the Employment Secretary may decide not to investigate the
matter, or not to investigate the matter further, as the case may be.
(2) If the Employment Secretary so decides, he or she must:
(a) transfer the complaint to the Australian Competition and Consumer
Commission; and
(b) give written notice to the complainant stating that the complaint has
been so transferred; and
(c) give to the Australian Competition and Consumer Commission any
information or documents that relate to the complaint and that are in the
Employment Secretary’s possession or under his or her control.
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.
(3) The Australian Competition and Consumer Commission may hold an
investigation into the matter and, if it decides to do so, it must report to the
Employment Secretary on:
(a) the conduct of the investigation; and
(b) any findings it has made as a result of the investigation.
(4) If the Australian Competition and Consumer Commission decides not to
hold an investigation into the matter, it must give to the Employment Secretary
a written notice informing the Employment Secretary of its decision and of the
reasons for its decision.
(1) If, before the Employment Secretary starts, or after he or she has
started, an investigation of a matter to which a complaint relates, the
Employment Secretary forms the opinion that the matter could be more
conveniently or effectively dealt with by the Privacy Commissioner, the
Employment Secretary may decide not to investigate the matter, or not to
investigate the matter further, as the case may be.
(2) If the Employment Secretary so decides, he or she must:
(a) transfer the complaint to the Privacy Commissioner; and
(b) give written notice to the complainant stating that the complaint has
been so transferred; and
(c) give to the Privacy Commissioner any information or documents that
relate to the complaint and that are in the Employment Secretary’s
possession or under his or her control.
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.
(3) A complaint transferred under this section to the Privacy Commissioner
is taken to be a complaint made to the Privacy Commissioner under the Privacy
Act 1988.
(1) This section applies if the Employment Secretary becomes aware that a
matter being investigated by him or her is, or is related to, a matter that is
under investigation by the Auditor-General.
(2) Except with the consent of the Auditor-General, the Employment
Secretary must not continue to investigate the matter until the investigation by
the Auditor-General has been completed.
(1) After concluding an investigation under subsection 60(1), the
Employment Secretary may prepare and give to the Minister a report under this
section.
(2) After concluding an investigation under subsection 60(2), the
Employment Secretary must prepare and give to the Minister a report under this
section.
(3) A report under this section must cover:
(a) the conduct of the investigation concerned; and
(b) any findings that the Employment Secretary has made as a result of the
investigation.
Civil proceedings do not lie against a person in respect of loss, damage
or injury of any kind suffered by another person because of any of the following
acts done in good faith:
(a) the making of a complaint under section 59;
(b) the making of a statement to, or the giving of a document or
information to, the Employment Secretary in connection with an investigation
under section 60.
The Employment Secretary may, by written instrument, appoint
officers of the Department to be inspectors for the purposes of this
Act.
(1) The Employment Secretary must cause an identity card to be issued to
each person appointed as an inspector under section 71.
(2) The identity card must specify the name and appointment of the
person.
(3) A recent photograph of the person must be attached to the
card.
A person appointed as an inspector under section 71 must, upon
ceasing to be an inspector, return to the Employment Secretary the identity card
issued to the person under section 72.
Penalty: 1 penalty unit
(1) Subject to this section, an inspector may enter, at any time between
the hours of 9 am and 5 pm on a business day, any premises that the
inspector has reasonable cause to believe are premises to which this section
applies and do any of the following:
(a) search the premises;
(b) inspect and take photographs, or make sketches, of the premises or any
substance or thing at the premises;
(c) inspect any document kept at the premises;
(d) remove, or make copies of, any such document.
(2) An inspector may exercise powers conferred by subsection (1) only
to the extent that it is reasonably necessary for the purpose of ascertaining
whether an employment services agreement has been complied with.
(3) An inspector may exercise powers conferred by subsection (1) for
the purpose of ascertaining whether a particular agreement has been complied
with only if the inspector has reasonable grounds to believe that:
(a) the Employment Secretary has already made reasonable efforts to
exercise other powers for that purpose, but the result of the exercise of those
powers was not sufficient to achieve that purpose; or
(b) the exercise by the Employment Secretary of other powers to
achieve that purpose would not be effective.
(4) An inspector must not exercise the power conferred by
subsection (1) to enter premises if:
(a) the premises are a residence; and
(b) the occupier of the premises has not consented to the entry.
(5) An inspector must not exercise the powers conferred by
subsection (1) in relation to premises if:
(a) the occupier of the premises has asked the inspector to produce his or
her identity card for inspection by the occupier; and
(b) the inspector fails to comply with the request.
(6) This section applies to the following premises:
(a) premises at which an entity provides employment services under an
employment services agreement;
(b) premises at which records relating to any such employment services are
kept.
(1) Subject to this section, an inspector who has entered premises under
section 74 may require a person to:
(a) answer any questions put by the inspector; and
(b) produce any documents requested by the inspector.
(2) An inspector may exercise powers conferred by subsection (1) only
to the extent that it is reasonably necessary for the purpose of ascertaining
whether any or all of the following have been complied with:
(a) an employment services agreement;
(b) employment services record rules in force under Division 1 of Part
5.
(3) An inspector is not entitled to make a requirement of a person under
subsection (1) unless the inspector produces his or her identity card for
inspection by the person.
(4) A person who refuses or fails to comply with a requirement made of the
person under subsection (1) is guilty of an offence punishable on
conviction by a fine not exceeding 30 penalty units.
(5) A person is excused from complying with a requirement made of the
person under subsection (1) if the answer to the question or the production
of the document might tend to incriminate the person or expose the person to a
penalty.
(1) This section applies if:
(a) an inspector removes a document from premises under
subsection 74(1); or
(b) a person produces a document to an inspector in accordance with a
requirement under subsection 75(1).
(2) The inspector may retain possession of the document for such period as
is necessary and reasonable for the purpose of ascertaining whether either or
both of the following have been complied with:
(a) an employment services agreement;
(b) employment services record rules in force under Division 1 of
Part 5.
(3) During that period, the inspector must permit a person who would be
entitled to inspect the document if it were not in the inspector’s
possession to inspect the document at all reasonable times.
(1) This section applies if the Employment Secretary has reason to believe
that a person is capable of:
(a) giving information which the Employment Secretary has reason to
believe is relevant to a designated matter; or
(b) producing documents which the Employment Secretary has reason to
believe are relevant to a designated matter; or
(c) giving evidence which the Employment Secretary has reason to believe
is relevant to a designated matter.
Note: Designated matter is defined in
subsection (4).
(2) The Employment Secretary may, by written notice given to the person,
require the person:
(a) to give to the Employment Secretary, within the period and in the
manner specified in the notice, any such information; or
(b) to produce to the Employment Secretary, within the period and in the
manner specified in the notice, any such documents; or
(c) to make copies of any such documents and to produce to the Employment
Secretary, within the period and in the manner specified in the notice, those
copies; or
(d) to appear before the Employment Secretary at a time and place
specified in the notice to give any such evidence, either orally or in writing,
and to produce any such documents.
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.
(3) A notice under this section must set out the effects of
sections 80, 81 and 82.
(4) For the purposes of this section, each of the following matters is a
designated matter:
(a) ascertaining whether there has been a breach of an employment services
agreement;
(b) monitoring and evaluating the performance of an entity under an
employment services agreement;
(c) monitoring and evaluating the performance of the Agency under
arrangements made with the Agency under section 15;
(d) determining the validity of claims made by an entity for payments
under an employment services agreement;
(e) monitoring and evaluating the nature and quality of employment
services provided to persons under employment services agreements or
arrangements made under Part 2 of this Act;
(f) monitoring the characteristics and attributes of persons to whom
employment services are provided;
(g) ascertaining whether there has been a contravention of the employment
services record rules in force under Division 1 of Part 5;
(h) the performance of any of the Employment Secretary’s functions
under Part 6 (which deals with investigations);
(i) the performance of any of the Employment Secretary’s functions
under Part 11 (which deals with recovery of overpayments made in relation
to employment services).
(1) The Employment Secretary must not, in the course of exercising powers
under section 77 for a purpose, require the giving of personal information
about a person (the person concerned) if there is a reasonably
practicable alternative for the purpose in question.
Note: Personal information is defined in
section 5.
(2) If:
(a) there is no reasonably practicable alternative for the purpose
referred to in subsection (1); and
(b) either:
(i) the person concerned consents; or
(ii) the person concerned was, before the information is required, made
aware that it was reasonably likely that the information in question would be
required for the purpose referred to in subsection (1) or a similar
purpose;
the Employment Secretary may, subject to subsection (3), require the giving
of the information.
(3) The Employment Secretary must not require the giving of information
relevant to monitoring the characteristics and attributes of a person
unless:
(a) the person has been informed of the purposes for which the information
may be used and the classes of person to whom it may be disclosed; and
(b) the person has consented to the information being used for those
purposes; and
(c) it is reasonable to assume that the person has understood:
(i) the information given to him or her under paragraph (a); and
(ii) the implications of giving, or withholding, consent.
(4) Section 77 does not require a person to give information to the extent
that in doing so the person would contravene a law of the Commonwealth (other
than a law of a Territory).
(5) The powers of the Employment Secretary under section 77 are to be
exercised subject to the requirements of Information Privacy Principles 1, 2 and
3 of the Privacy Act 1988.
(6) For the purposes of this section, a reference to the giving of
information includes a reference to the giving of information by way of
producing documents or evidence.
A person is entitled to be paid by the Employment Secretary reasonable
compensation for complying with a requirement covered by
paragraph 77(2)(c).
(1) A person is guilty of an offence if:
(a) the person does not comply with a notice; and
(b) the notice is a notice under section 77.
Penalty: Imprisonment for 6 months.
(2) A person is excused from giving information or evidence or producing a
document or a copy of a document under section 77 if the information,
evidence or production of the document or copy might tend to incriminate the
person or expose the person to a penalty.
A person is guilty of an offence if the person, in purported compliance
with a notice under section 77:
(a) gives information or evidence that is false or misleading;
and
(b) does so knowing that the information or evidence is false or
misleading.
Penalty: Imprisonment for 12 months.
(1) A person is guilty of an offence if the person, in compliance with a
notice under section 77:
(a) produces a document, or a copy of a document; and
(b) does so knowing that the document or copy is false or misleading in a
material particular.
Penalty: Imprisonment for 12 months.
(2) Subsection (1) does not apply to a person who produces a
document, or a copy of a document, that, to the knowledge of the person, is
false or misleading in a material particular if the document or copy is
accompanied by a written statement signed by the person or, in the case of a
body corporate, by a competent officer of the body corporate:
(a) stating that the document or copy is, to the knowledge of the
first-mentioned person, false or misleading in a material particular;
and
(b) setting out, or referring to, the material particular in which the
document or copy is, to the knowledge of the first-mentioned person, false or
misleading.
(1) The Employment Secretary may inspect a document or copy produced under
this Part, and may make and retain copies of, or take and retain extracts from,
such a document.
(2) The Employment Secretary may retain possession of a copy of a document
produced in accordance with a requirement covered by paragraph
77(2)(c).
(1) The Employment Secretary may, for the purposes of this Act, take, and
retain for as long as is necessary for those purposes, possession of a document
produced under this Part.
(2) The person otherwise entitled to possession of the document is
entitled to be supplied, as soon as practicable, with a copy certified by the
Employment Secretary to be a true copy.
(3) The certified copy must be received in all courts and tribunals as
evidence as if it were the original.
(4) Until a certified copy is supplied, the Employment Secretary must, at
such times and places as the Employment Secretary thinks appropriate, permit the
person otherwise entitled to possession of the document, or a person authorised
by that person, to inspect and make copies of, or take extracts from, the
document.
The Minister may establish a national committee.
The function of the national committee established under section 85
is to advise the Employment Secretary on the provision of employment services
under this Act.
(1) The national committee established under section 85 consists of
such members as are appointed by the Minister in writing.
(2) A member of the committee holds office for such period as is specified
in the instrument of appointment.
(3) A member of the committee may resign by giving the Minister a signed
notice of resignation.
(4) The Minister may, at any time, terminate the appointment of a member
of the committee.
The Employment Secretary may establish a committee for a specified
area.
The function of a committee established under section 88 for an area
is to advise the Employment Secretary 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 Department to regional labour
markets;
(c) linking programs administered by the Department with regional
development.
The establishment of a committee under section 88 is to be in
accordance with written guidelines made by the Employment Secretary. 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.
(1) This section applies to a committee established under this
Part.
(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.
(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 part in a decision of the committee with respect to that
matter.
(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.
In this Part:
reviewable decision means a decision of the Employment
Secretary under Part 3 or 4, other than a decision under:
(a) section 27 (determination that person is participant);
or
(b) section 28 (determination that person could not be
referred).
The Employment Secretary may, by writing, authorise:
(a) an officer of the Department; or
(b) a member of staff of the Agency;
to perform duties for the purposes of this Part. A person authorised under
this section is called an authorised review officer.
(1) The Employment Secretary may review a reviewable decision if the
Employment Secretary is satisfied that there is sufficient reason to review the
decision.
Note: Reviewable decision is defined in
section 92.
(2) The Employment Secretary may review a decision even if an application
has been made to the SSAT or AAT for review of the decision.
(3) The Employment Secretary may:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
(4) If:
(a) the Employment Secretary makes a decision under subsection (3);
and
(b) at the time when the Employment Secretary makes that decision, a
person has applied to the SSAT for review of the decision that was reviewed by
the Employment Secretary;
the Employment Secretary must give the National Convener of the SSAT
written notice of the Employment Secretary’s decision under
subsection (3).
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.
(5) If:
(a) the Employment Secretary makes a decision under subsection (3);
and
(b) at the time when the Employment Secretary makes that decision, a
person has applied to the AAT for review of the decision that was reviewed by
the Employment Secretary;
the Employment Secretary must give the Registrar of the AAT written notice
of the Employment Secretary’s decision under
subsection (3).
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.
(6) If:
(a) the Employment Secretary sets a decision aside under
subsection (3); and
(b) the Employment Secretary is satisfied that an event that did not occur
would have occurred if the decision had not been made;
the Employment Secretary may, if satisfied that it is reasonable to do so,
deem the event to have occurred for the purposes of this Act.
(1) A person affected by a reviewable decision may apply to the Employment
Secretary for review of the decision unless the decision was made by the
Employment Secretary personally.
Note: Reviewable decision is defined in
section 92
(2) If a person applies under subsection (1) for review of a
decision, the Employment Secretary or an authorised review officer may review
the decision under section 96.
(3) If:
(a) a person who may apply to the Employment Secretary for review of a
decision under subsection (1) has not so applied; and
(b) the person applies to the SSAT for review of the decision;
the person is taken to apply to the Employment Secretary for review of the
decision under subsection (1) on the day on which the person applies to the
SSAT.
(1) If an application for review of a decision is made under
subsection 95(1), the Employment Secretary or an authorised review officer
must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
(2) If a person makes a decision under subsection (1), the person
must give the applicant written notice of the decision.
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.
(3) If:
(a) a person sets a decision aside under subsection (1);
and
(b) the Employment Secretary is satisfied that an event that did not occur
would have occurred if the decision had not been made;
the Employment Secretary may, if satisfied that it is reasonable to do so,
deem the event to have occurred for the purposes of this Act.
(1) If a person gives an applicant a notice under subsection 96(2),
the notice must include:
(a) a statement about the person’s decision that sets out the
reasons for the decision; and
(b) a statement to the effect that the applicant may, subject to this Act,
apply to the SSAT for review of the person’s decision; and
(c) a statement to the effect that, if the person is dissatisfied with the
SSAT’s decision, application may, subject to the Administrative Appeals
Tribunal Act 1975, be made to the AAT for review of the SSAT’s
decision.
Note: Section 25D of the Acts Interpretation Act 1901
deals with the contents of statements of reasons.
(2) A contravention of subsection (1) in relation to a decision does
not affect the validity of the decision.
The object of this Division is to enable a person who is affected by a
reviewable decision:
(a) to have the decision reviewed by the SSAT; and
(b) if dissatisfied with the SSAT’s decision, to have the decision
of the SSAT reviewed by the AAT.
Note: Reviewable decision is defined in
section 92.
(1) If:
(a) a decision has been made by the Employment Secretary personally;
or
(b) a decision has been:
(i) reviewed by the Employment Secretary or an authorised review officer
under section 96; and
(ii) affirmed, varied or set aside;
a person whose interests are affected by the decision of the Employment
Secretary or the authorised review officer may apply to the SSAT for review of
that decision.
(2) For the purposes of subsection (1), the decision made by the
Employment Secretary or the authorised review officer is taken to be:
(a) if the Employment Secretary or the authorised review officer affirms a
decision—the decision as affirmed; and
(b) if the Employment Secretary or the authorised review officer varies a
decision—the decision as varied; and
(c) if the Employment Secretary or the authorised review officer sets a
decision aside and substitutes a new decision—the new decision.
The SSAT may only review a decision under section 42 (which relates
to the terms of an Employment Assistance Activity Agreement that is in force) if
the application is expressed to be an application for review of that
decision.
(1) If a person applies to the SSAT under subsection 99(1) for review
of a decision (other than a decision referred to in subsection (4) of this
section), the SSAT must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside; and
(i) substitute a new decision; or
(ii) send the matter back to the Employment Secretary for reconsideration
in accordance with any directions or recommendations of the SSAT.
(2) The SSAT may, for the purposes of reviewing a decision, exercise all
the powers and discretions that are conferred by this Act on the Employment
Secretary.
(3) If:
(a) the SSAT sets a decision aside under subsection (1);
and
(b) the Employment Secretary, or the SSAT, is satisfied that an event that
did not occur would have occurred if the decision had not been made;
the Employment Secretary or the SSAT, as the case requires, may, if
satisfied that it is reasonable to do so, deem the event to have occurred for
the purposes of this Act.
(4) This section does not apply to a decision under section 42 (which
relates to the terms of an Employment Assistance Activity Agreement that is in
force).
If a person applies to the SSAT for review of a decision under
section 42 (which relates to the terms of an Employment Assistance Activity
Agreement that is in force), the SSAT must:
(a) affirm the decision; or
(b) set the decision aside and send the matter back to the Employment
Secretary for reconsideration in accordance with any recommendations of the
Tribunal.
(1) Subject to subsections (2) and (3), a decision by the SSAT under this
Act comes into operation immediately on the giving of the decision.
(2) The SSAT may specify in a decision that the decision is not to come
into operation until a later day specified in the decision and, if it does so,
the decision comes into operation on that later day.
(3) Subject to subsection (4), if the SSAT:
(a) varies the decision under review; or
(b) sets aside the decision under review and substitutes a new decision
for the decision under review;
the decision as varied or the new decision, as the case requires, has
effect, or is to be taken to have had effect, on and after the day on which the
decision under review has or had effect.
(4) The SSAT may order:
(a) that subsection (3) not apply to a decision by the SSAT on a review;
and
(b) that subsections (1) and (2) apply instead.
(5) This section does not apply to a decision under section 42
(which relates to the terms of an Employment Assistance Activity Agreement that
is in force).
(1) This section applies to a decision under section 42 (which
relates to the terms of an Employment Assistance Activity Agreement that is in
force).
(2) Subject to subsection (3), a decision by the SSAT in relation to
such a decision comes into operation immediately on the giving of the
decision.
(3) The SSAT may specify in a decision that the decision is not to come
into operation until a later day specified in the decision and, if it does so,
the decision comes into operation on that later day.
(1) A person may apply to the SSAT under subsection 99(1) for review
of a decision by:
(a) sending or delivering a written application to:
(i) an office of the SSAT; or
(ii) an office of the Department of Employment, Education, Training and
Youth Affairs; or
(iii) an office of the Department of Social Security; or
(iv) an office of the Agency; or
(b) going to an office of the SSAT and making an oral application;
or
(c) telephoning an office of the SSAT and making an oral
application.
(2) If a person makes an oral application under paragraph (1)(b) or (c),
the person receiving the oral application must make a written record of the
details of the oral application and note on the record the date on which the
application is made.
(3) If a written record of an oral application is made under
subsection (2), the written record is to be taken to be a written
application by the applicant and to be delivered to an office of the SSAT on the
day on which the oral application is made.
(4) An application may include a statement of the reasons for seeking a
review of the decision.
(1) If a decision under this Act is varied after an application has been
made to the SSAT for review of the decision but before determination of the
review, the application for review is to be treated as if it were an application
for review of the decision as varied.
(2) If a decision under this Act is set aside and a new decision is
substituted after an application has been made to the SSAT for review of the
decision set aside but before determination of the review, the application for
review is to be treated as if it were an application for review of the new
decision.
(3) If:
(a) a person applies to the SSAT 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.
(1) The parties to a review by the SSAT 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).
(2) If a person has applied under subsection 99(1) for review of a
decision, any other person whose interests are affected by the decision may
apply to the National Convener of the SSAT to be made a party to the
review.
(3) An application under subsection (2) must be in writing.
(4) The National Convener of the SSAT may order that a person who has
applied under subsection (2) be made a party to the review.
The SSAT 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.
(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 SSAT under subsection 99(1) of this Act for
review of decisions under this Act; and
(b) reviews under this Act by the SSAT; and
(c) decisions that have been reviewed by the SSAT under this
Act;
in a corresponding way to the way in which they apply in relation
to:
(d) applications to the SSAT under the Social Security Act 1991 for
review of decisions under that Act; and
(e) reviews under that Act by the SSAT; and
(f) decisions that have been reviewed by the SSAT under that
Act.
(2) The first change is that section 1265 of the Social Security Act
1991 is to be read as if subsection (7) had been repealed.
(3) The next 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.
(4) The next 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.
(5) The next change is that each reference to the Department of Social
Security is to be replaced by a reference to the Department of Employment,
Education, Training and Youth Affairs.
(6) The next 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 107 of this Act.
Note: This subsection deals with advice about a
person’s right to apply to the National Convener of the SSAT to be added
as a party to a review.
(7) The next change is that each reference to section 1246 of the
Social Security Act 1991 is to be replaced by a reference to
section 108 of this Act.
Note: This section deals with the SSAT’s
objectives.
(8) The next 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 section deals with the variation etc. of
decisions.
For the purposes of this Part, the following amounts are
recoverable amounts:
(a) so much of an amount paid, or purportedly paid, by the Commonwealth to
an entity under an employment services agreement as represents an
overpayment;
(b) an amount that is repayable to the Commonwealth under the terms and
conditions of an employment services agreement.
A recoverable amount is a debt due to the Commonwealth and may be
recovered by the Commonwealth in a court of competent jurisdiction.
If an entity is liable to pay a recoverable amount, the amount may be
deducted from one or more other amounts that are payable to the entity under an
employment services agreement, and if it is so deducted, the other amounts are
taken to have been paid in full to the entity.
Effect of this section
(1) This section allows the Commonwealth to collect money from a person
who owes money to an entity that is liable to pay a recoverable
amount.
Direction to third party to pay money to Commonwealth
(2) The Employment Secretary may direct a person (the third
party) who owes, or may later owe, money (the available
money) to the entity to pay some or all of the available money to the
Commonwealth in accordance with the direction. The Employment Secretary 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 direction
(3) The direction cannot require an amount to be paid to the Commonwealth
at a time before it becomes owing by the third party to the entity.
Third party must 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 the Commonwealth an amount up to the amount involved in the
refusal or failure of the third party to comply.
Third party indemnified
(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 to third party if debt discharged
(7) If the whole of the recoverable amount owed by the entity is
discharged before any payment is made by the third party, the Employment
Secretary must immediately give notice to the third party of that
fact.
Extended meaning of 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.
Building societies
(9) For the purposes of this section, money that has been paid by a person
to a building 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 building
society to the person; or
(b) if the money is repayable on demand—money that may become due by
the building society to the person.
Extended meaning of conviction
(10) 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.
Definition
(11) In this section:
building society means a society registered or incorporated
as a building society, co-operative housing society or other similar society
under the law in force in a State or Territory.
(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 a party to an employment services agreement—the
agreement; or
(c) the employment services record rules in force under Division 1 of
Part 5; or
(d) a duty of non-disclosure in force under section 56;
the Federal Court of Australia may, on the application of the Employment
Secretary, grant an injunction:
(e) restraining the entity from engaging in the conduct; and
(f) if, in the court’s opinion, it is desirable to do
so—requiring the entity to do something.
(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 a party to an employment services
agreement—the agreement; or
(iii) the employment services record rules in force under Division 1 of
Part 5; or
(iv) a duty of non-disclosure in force under section 56;
the Federal Court of Australia may, on the application of the Employment
Secretary, grant an injunction requiring the person to do that act or
thing.
(1) If an application is made to the court for an injunction under
section 114, 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.
(2) The court is not to require an applicant for an injunction under
section 114, as a condition of granting the interim injunction, to give any
undertakings as to damages.
The court may discharge or vary an injunction granted under this
Part.
(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.
(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.
The Employment Secretary may, by signed instrument, delegate all or any
of the powers or functions of the Employment Secretary under this Act
to:
(a) an officer of the Department; or
(b) a member of staff of the Agency.
Note: Sections 34AA, 34AB and 34A of the Acts
Interpretation Act 1901 set out general rules governing delegation of powers
and functions.
(1) This
Act applies to a partnership as if the partnership were a person, but it applies
with the following changes:
(a) obligations that would be imposed on the partnership are imposed
instead on each partner, but may be discharged by any of the partners;
(b) any offence against this Act that would be committed by the
partnership is taken instead to have been committed by each partner
who:
(i) aided, abetted, counselled or procured the relevant act or omission;
or
(ii) was in any way knowingly concerned in, or party to, the relevant act
or omission (whether directly or indirectly and whether by any act or omission
of the partner).
(2) For the purposes of this Act, a change in the composition of a
partnership does not affect the continuity of the partnership.
This Act applies to an unincorporated association as if the association
were a person, but it applies with the following changes:
(a) obligations that would be imposed on the unincorporated association
are imposed instead on each member of the committee of management of the
association, but may be discharged by any of those members;
(b) an offence against this Act that would be committed by an
unincorporated association is taken instead to have been committed by each
member of the committee of management of the association who:
(i) aided, abetted, counselled or procured the relevant act or omission;
or
(ii) was in any way knowingly concerned in, or party to, the relevant act
or omission (whether directly or indirectly and whether by any act or omission
of the member).
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 person’s knowledge, intention, opinion, belief or purpose;
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 person’s knowledge, intention, opinion, belief or purpose;
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 Act, if a document is sent or delivered
to:
(a) an office of the Department; or
(b) an office of the Agency; or
(c) a place approved for the purpose by the Employment
Secretary;
the document is taken to have been given to the Employment
Secretary.
For the purposes of this Act, 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 Act, 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.
(1) The Governor-General may make regulations 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.
(2) In particular, the regulations may provide for the Employment
Secretary, on behalf of the Commonwealth, to write off or waive a debt due to
the Commonwealth under Part 11.
(3) The regulations may make provision for penalties by way of a fine not
exceeding 10 penalty units for offences against the regulations.