Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 At the end of Subdivision A of Division 2 of Part 2.11A of Chapter 2
Add:
572A Situations where austudy payment not payable for failure to comply with certain requirements
Austudy payment is not payable to a person if the person refuses or fails, without reasonable excuse, to comply with a requirement made of the person under section 67, 68 or 192 of the Administration Act.
2 Subdivision E of Division 2 of Part 2.11A of Chapter 2
Repeal the Subdivision, substitute:
576 Austudy participation failures
Meaning of austudy participation failure
(1) A person commits an austudy participation failure if the person:
(a) fails to comply with a requirement:
(i) that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and
(ii) that was reasonable; and
(iii) the notification of which included a statement to the effect that a failure to comply with the requirement could constitute an austudy participation failure; or
(b) fails to satisfy the activity test; or
(c) fails to comply with a requirement to undertake another activity referred to in paragraph 576A(1)(b).
Reasonable excuse
(2) Despite subsection ( 1), a failure of a kind referred to in that subsection is not an austudy participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.
(2A) The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing an austudy participation failure.
(2B) To avoid doubt, a determination under subsection (2A) does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing the austudy participation failure referred to in subsection (1).
Subsequent failures in the same instalment period
(3) Despite subsection ( 1), if a failure of a kind referred to in that subsection occurs in an instalment period of the person in which the person has already committed an austudy participation failure, the failure is not an austudy participation failure if:
(a) the instalment period is the person's first instalment period for austudy payment; or
(b) the instalment period is not the person's first instalment period for austudy payment, and:
(i) the person did not commit an austudy participation failure in the immediately preceding instalment period of the person; or
(ii) in respect of each austudy participation failure that the person committed in the immediately preceding instalment period of the person, the person acted in accordance with a requirement of the Secretary that was notified in respect of that failure.
576A Allowance not payable because of austudy participation failure
General
(1) Austudy payment is not payable to a person, for the period starting in accordance with section 576B and ending in accordance with section 576C, if:
(a) the person commits an austudy participation failure; and
(b) the Secretary requires the person:
(i) to comply with the requirement, or undertake the activity, to which the austudy participation failure relates; or
(ii) to comply with a particular requirement, or undertake a particular activity, in place of the requirement or activity to which the failure relates;
during the participation failure instalment period for the failure, or at a particular time during that period; and
(c) the person fails to comply with the requirement.
Reasonable excuse etc.
(2) This section does not apply in relation to the failure if:
(a) the Secretary is satisfied that the person had a reasonable excuse for the failure referred to paragraph ( 1)(c); or
(b) the Secretary is for any other reason satisfied that subsection ( 1) should not apply to the failure.
(2A) The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of paragraph (2)(a), a person had a reasonable excuse for a failure of a kind mentioned in paragraph (1)(c).
(2B) To avoid doubt, a determination under subsection (2A) does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of paragraph (2)(a), a person had a reasonable excuse for the failure referred to in paragraph (1)(c).
Meaning of participation failure instalment period
(3) The participation failure instalment period for the austudy participation failure is the next instalment period of the person to start after the day on which the Secretary first became aware that the person committed the failure.
Failures covered by section 577
(4) This section does not apply to an austudy participation failure if section 577 applies to the failure.
576B When the period of non - payment starts
The period for which austudy payment is not payable to the person because of section 576A is taken to have started at the start of the participation failure instalment period for the austudy participation failure.
576C When the period of non - payment ends
The period for which austudy payment is not payable to the person because of section 576A ends when:
(a) in accordance with a requirement of the Secretary that the person comply with the requirement, or undertake the activity, to which the austudy participation failure related, the person has complied with the requirement or undertaken the activity; or
(b) in accordance with a requirement of the Secretary that the person undertake another activity in place of the requirement or activity to which the austudy participation failure related, the person has undertaken the other activity; or
(c) in accordance with a requirement of the Secretary that the person comply with another requirement in place of the requirement or activity to which the austudy participation failure related, the person has complied with the other requirement.
Subdivision F -- Situations where payment not payable because of repeated failure
577 Payment not payable because of repeated failure
General
(1) Austudy payment is not payable to a person, for the period of 8 weeks starting in accordance with section 577A, if the person commits an austudy participation failure (the repeated failure ), having committed austudy participation failures (the earlier failures ) on 2 or more other occasions during the period of 12 months preceding that failure.
Reasonable excuse etc.
(2) Disregard any earlier failure that is a failure to which subsection 576A(1) does not apply because of subsection 576A(2).
(3) Subsection ( 1) does not apply in relation to the repeated failure if the Secretary is for any other reason satisfied that subsection ( 1) should not apply to the failure.
577A When the period of non - payment starts
The period for which austudy payment is not payable to the person is taken to start, or to have started:
(a) if the repeated failure occurs during a participation failure instalment period for an earlier failure--at the start of the participation failure instalment period for the earlier failure; or
(b) otherwise--at the start of the next instalment period of the person to start after the day on which the Secretary first became aware that the person committed the failure.
Note: For participation failure instalment period see subsection 576A(3).
3 Saving provision relating to activity test non - payment periods
(1) If:
(a) as a result of an activity test breach committed by the person before the commencement of this item, an activity test non - payment period applied to the person under Subdivision E of Division 2 of Part 2.11A of the Social Security Act 1991 ; and
(b) on that commencement, the activity test non - payment period had not ended;
the activity test non - payment period continues to apply to the person after that commencement as if that Subdivision had not been repealed by this Act.
(2) In this item:
activity test breach has the same meaning as it had in section 576A of the Social Security Act 1991 before the commencement of this item.
4 Transitional provision relating to repeated breaches
(1) The reference in subsection 577(1) of the Social Security Act 1991 as amended by this Act to austudy participation failures committed by a person during the period of 12 months preceding an austudy participation failure includes a reference to any activity test failures committed by the person:
(a) during that period of 12 months; and
(b) before the commencement of this item.
(2) In this item:
activity test failure means any activity test breach (within the meaning of section 576A of the Social Security Act 1991 ) that:
(a) was constituted by a failure of a kind referred to in paragraph 576A(1)(a) of that Act; and
(b) was committed by the person as a result of which an activity test penalty period applied to the person, before the commencement of this item, under:
(i) Subdivision E of Division 2 of Part 2.11A of that Act; or
(ii) Subdivision B of Division 5 of Part 2.11A of that Act.
5 Subdivision A of Division 5 of Part 2.11A of Chapter 2 (heading)
Repeal the heading.
6 Subdivisions B and C of Division 5 of Part 2.11A of Chapter 2
Repeal the Subdivisions.
7 Saving provision relating to activity test breach rate reduction periods
(1) If:
(a) as a result of an activity test breach committed by the person before the commencement of this item, an activity test breach rate reduction period applied to the person under Subdivision B of Division 5 of Part 2.11A of the Social Security Act 1991 ; and
(b) on that commencement, the activity test breach rate reduction period had not ended;
the activity test breach rate reduction period continues to apply to the person after that commencement as if that Subdivision had not been repealed by this Act.
(2) The fact that an activity test breach rate reduction period is applying to the person because of this item does not prevent the application to the person, at the same time, of a period during which austudy payment is not payable because of Subdivision E or F of Division 2 of Part 2.11A of the Social Security Act 1991 as amended by this Act.
(3) In this item:
activity test breach has the same meaning as it had in section 576A of the Social Security Act 1991 before the commencement of this item.
8 Saving provision relating to administrative breach rate reduction periods
(1) If:
(a) as a result of an administrative breach committed by the person before the commencement of this item, an administrative breach rate reduction period applied to the person under section 583 of the Social Security Act 1991 ; and
(b) on that commencement, the administrative breach rate reduction period had not ended;
the administrative breach rate reduction period continues to apply to the person after that commencement as if that section had not been repealed by this Act.
(2) In this item:
administrative breach means any refusal or failure by the person as a result of which an administrative breach rate reduction period applied to the person, before the commencement of this item, under section 583 of the Social Security Act 1991 .
9 Saving provision relating to sections 583A to 583G
(1) If:
(a) as a result of an administrative breach committed by the person before the commencement of this item, an administrative breach rate reduction period applied to the person under section 583 of the Social Security Act 1991 ; and
(b) on that commencement, the administrative breach rate reduction period had not ended;
sections 583A to 583G of the Social Security Act 1991 continue to apply to the administrative breach rate reduction period after that commencement as if they had not been repealed by this Act.
(2) The fact that an administrative breach rate reduction period is applying to the person because of this item does not prevent the application to the person, at the same time, of a period during which austudy payment is not payable because of Subdivision E or F of Division 2 of Part 2.11A of the Social Security Act 1991 as amended by this Act.
(3) In this item:
administrative breach means any refusal, failure or non - compliance by the person as a result of which an administrative breach rate reduction period applied to the person, before the commencement of this item, under section 583 of the Social Security Act 1991 .
Part 2 -- Seasonal work preclusion period
10 After section 575E
Insert:
575EA Seasonal workers--preclusion period
Application
(1) This section applies if:
(a) a person has lodged a claim for austudy payment; and
(b) at any time during the 6 months immediately before the day on which the person lodged the claim, the person, or the person's partner, has been engaged in seasonal work.
Note: For seasonal work see subsection 16A(1).
Exclusion during seasonal work preclusion period
(2) Austudy payment is not payable to the person:
(a) if the person is subject to a seasonal work preclusion period (whether in relation to the claim referred to in subsection ( 1) or any other claim under this Act) and the Secretary has not made a determination under subsection ( 3) in relation to the person--for the person's seasonal work preclusion period; or
(b) if the Secretary has made a determination under subsection ( 3) in relation to the person--for that part (if any) of the person's seasonal work preclusion period to which the person is subject as a result of the determination.
Note: For seasonal work preclusion period see subsection 16A(1).
Exemption in cases of severe financial hardship
(3) If the Secretary is satisfied that a person is in severe financial hardship because the person has incurred unavoidable or reasonable expenditure while the person is subject to a seasonal work preclusion period (whether in relation to the claim referred to in subsection ( 1) or any other claim under this Act):
(a) the Secretary may determine that the person is not subject to the whole, or any part, of the preclusion period; and
(b) the determination has effect accordingly.
Note 1: For in severe financial hardship see subsection 19C(2) (person who is not a member of a couple) or subsection 19C(3) (person who is a member of a couple).
Note 2: For unavoidable or reasonable expenditure see subsection 19C(4).
11 Point 1067L - D22
Repeal the point, substitute:
Operation of points 1067L - D20 and 1067L - D21
1067L - D22 Points 1067L - D20 and 1067L - D21 have effect even if the person who has made the claim:
(a) is subject to a liquid assets test waiting period or an income maintenance period in respect of the allowance claimed; or
(b) is subject to a seasonal work preclusion period;
during the period of 12 months referred to in those points.
12 Application provision
The amendments made by this Part apply in relation to claims for austudy payment made on or after 20 September 2006.