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1996-97
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
THE
SENATE
REFORM
OF EMPLOYMENT SERVICES BILL 1996
REPLACEMENT EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Employment, Education, Training and Youth Affairs,
Senator the Hon Amanda Vanstone)
THIS MEMORANDUM REPLACES THE
EXPLANATORY MEMORANDUM PRESENTED TO THE SENATE ON 12 DECEMBER
1996
80785 Cat. No. 96 7239 7 ISBN 0644
498226
REFORM OF EMPLOYMENT SERVICES BILL
1996
OUTLINE
The aim of this Bill is to provide more effective employment services for
job seekers. This will be achieved by establishing mechanisms to deliver
employment services and by establishing a fully competitive market for
employment assistance. Employment services providers will focus on achieving
real job outcomes for unemployed job seekers.
The Bill is one of three
Bills which will provide the statutory framework for implementing the
Government’s reforms to employment services. The Reform of Employment
Services (Consequential Provisions) Bill 1996 being introduced with this
Bill and the Commonwealth Services Delivery Agency Bill 1996, to be introduced
by my colleague the Minister for Social Security, complete the package of
legislation.
The Bill would enable the Commonwealth to contract private,
community and public sector entities to provide employment services to job
seekers. “Employment services” is defined to mean unemployment
benefits within the meaning of paragraph 51(xxiiiA) of the Constitution. These
services will include labour exchange, job search assistance and entry level
training support services. Special or intensive employment services, to be
known as “employment assistance” will be provided to eligible
persons by employment placement enterprises contracted by the Commonwealth. It
is intended that providers of employment services will deliver flexible,
client-driven assistance based on outcomes.
The public provider of
employment services will be the Public Employment Placement Enterprise which is
to be a company under the Corporations Law, wholly owned by the
Commonwealth.
The Commonwealth services delivery agency (“the
Agency”), proposed to be established within the Social Security portfolio,
will provide services to job seekers including registration, assessment and, as
appropriate, referral to employment placement enterprises for employment
assistance. Self help assistance will be available to all job seekers at the
Agency.
The Bill sets out the requirements for participation in the
employment assistance scheme. Much of the machinery to achieve the reforms is
not new. It is built on previous arrangements which worked well - in particular
individualised one-to-one assistance for disadvantaged job seekers. The
referral procedures in this legislation for employment assistance are similar to
current referral procedures for case management under the Employment Services
Act 1994, although the new procedures have been refined and streamlined.
Eligibility for employment assistance will be confined to those registered as
unemployed with the Agency, or in receipt of employment services from the
Commonwealth. A Ministerial determination will set out the eligibility criteria
for employment assistance.
Employment assistance is aimed at enabling a
participant to get a job or improving their job prospects. Employment
assistance will be provided to participants referred to employment placement
enterprises for assistance by the Agency. As employment assistance is the most
expensive employment service, not all job seekers who are eligible for
employment assistance will become participants.
Participants in
the employment assistance scheme would be required to negotiate and enter into
an Employment Assistance Activity Agreement (EAAA) with the employment placement
enterprise providing their employment assistance. The EAAA will set out
activities aimed at getting the participant a job or improving their job
prospects. The EAAA replaces any Newstart Activity Agreement or Youth Training
Activity Agreement that the person had under the Social Security
Act 1991 or the Student and Youth Assistance Act 1973,
respectively. If a participant in receipt of a Newstart Allowance or a Youth
Training Allowance fails to enter into or comply with an EAAA without a
reasonable excuse, the person could lose his or her allowance for some period of
time.
The Bill would also provide for the normal protections and
accountability mechanisms for the Government, service providers and job seekers.
These include information gathering powers both for the purpose of ensuring
compliance with contractual arrangements and for more general monitoring and
evaluation; the means to ensure the confidentiality of information concerning
users of employment services; and mechanisms to investigate a complaint about
the provision of employment services by the Agency or an employment services
provider. There would also be access to review of decisions relating to the
assessment and referral for employment assistance, including access to appeal to
the Social Security Appeals Tribunal and the Administrative Appeals
Tribunal.
PURPOSE OF THE BILL
The Ministerial Statement Reforming Employment Assistance outlined
the Government’s vision for the most radical changes to employment
services since the establishment of the Commonwealth Employment Service in 1946.
Since the release of that Statement, the Government has undertaken extensive
consultations about the Government’s proposals with interested groups in
the community across Australia.
The proposed package of legislation will
provide the statutory framework for implementing the Government’s reforms
to employment services. The package includes:
• this
Bill;
• the Reform of Employment Services (Consequential Provisions)
Bill 1996; and
• the Commonwealth Services Delivery Agency Bill
1996 to be introduced by the Minister for Social Security.
This package
of legislation would provide for reforming employment services in a way which is
largely consistent with the feedback received from the community. At the same
time the reforms remain true to the Government’s belief that labour market
services must be made more effective by focussing clearly on real job outcomes
and opening up the employment placement market to the discipline of
competition.
Aims of the legislation
The aim of this
legislation is to establish the mechanisms to deliver employment services and to
establish a fully competitive market for employment assistance to job seekers.
In particular, this Bill would:
• enable the Commonwealth to engage
entities to provide employment services;
• define the criteria for
participation in the “employment assistance
scheme”;
• provide for the procedures for referring participants
in the employment assistance scheme to employment placement enterprises (or
EPEs);
• outline compliance requirements of job seekers under the
Bill;
• allow for the investigation of complaints about the provision
of employment services;
• provide for the review of decisions relating
to participation in the employment assistance scheme and referrals to employment
placement enterprises; and
• include provisions to ensure the
confidentiality of information concerning users of employment services.
These provisions, together with the provisions in the other Bills in
the legislative framework, would enable the implementation of the
Government’s reforms to employment services.
Specifically:
• the Commonwealth Services Delivery Agency Bill 1996
would establish and provide for the management and activities of the Agency as a
provider of integrated Government services - social security and employment
services in the first instance; and
• the Reform of Employment
Services (Consequential Provisions) Bill 1996 would cover other matters required
for the implementation of the Government’s reforms.
Provision of
employment services
The Bill would provide for the provision of
“employment services”. “Employment services” means
unemployment benefits within the meaning of the Constitution. Unemployment
benefits in the form of money allowances will continue to be paid under the
Social Security Act 1991. This Bill would, in the main, provide for
non-monetary assistance. This assistance would include:
• self
help assistance;
• labour exchange;
• job search assistance;
• employment assistance; and
• entry level training support
services.
Self help assistance would be available at the
Agency to all job seekers. It will include access to: job vacancy displays,
other employment and training information and facilities such as computers and
telephones.
In labour exchange services, employment
services providers would canvass employers for job vacancies to be placed on the
National Vacancy Data Base. Employment services providers will also match,
refer and place eligible job seekers into vacancies on the Data
Base.
Job search assistance would involve employment
services providers delivering the sort of assistance currently provided by job
clubs, such as training job seekers in effective job search techniques and
providing access to facilities for intensive supported job
search.
Employment assistance would be the most intensive
form of assistance and would be similar to, but more flexible than, the current
case management system. This form of assistance would be provided to eligible
persons by employment placement enterprises engaged by the
Commonwealth.
Entry level training support services are
those services (except labour exchange) which would be provided to eligible job
seekers to assist them into a traineeship or an apprenticeship. These services
would be provided by employment services providers or other contracted agencies.
The legislation would enable the Agency to enter into an agreement with
the Employment Secretary in connection with employment services. Under this
agreement, and an agreement with the Social Security Secretary, the Agency
would:
• register, assess and refer job seekers to further
assistance;
• provide job seekers with self help job search facilities;
and
• activity test job seekers and apply deferment period provisions
under the Social Security Act 1991.
Competitive employment
services market
The legislation would enable the Employment
Secretary, on behalf of the Commonwealth, to contract entities to provide
employment services (including the special or intensive “employment
assistance” which is to be provided by employment placement enterprises).
In line with the Government’s requirement for competitive neutrality in
the employment services market, the legislation would not distinguish between
private and community providers and the Public Employment Placement
Enterprise.
Employment assistance
Special or intensive
employment services, to be known as “employment assistance” would be
provided to eligible persons by employment placement enterprises (or EPEs)
contracted by the Commonwealth.
Employment assistance is to be based on
an assessment of personal need. Its aim is to enable the person to gain
employment or improve the person’s employment prospects. The legislation
would provide for the Minister for Employment, Education, Training and Youth
Affairs to make written determinations to specify what sorts of assistance EPEs
should provide to participants. Assistance may involve training, job search
assistance, wage subsidies or other innovative and flexible forms of assistance.
EPEs will be free to decide with the participant the optimal kinds and mix of
assistance needed to get the participant a job. Participants will generally
receive employment assistance for 12 months.
The legislation would also
provide for the Minister for Employment, Education, Training and Youth Affairs
to make a written determination specifying what matters the Employment Secretary
should take into account when engaging employment placement enterprises to
provide employment assistance and the procedures which the Employment Secretary
should follow when so deciding.
Under the legislation, EPEs could not
charge participants for providing them with employment assistance. This does
not preclude EPEs from charging non-participants for similar services. This may
provide an additional revenue source for EPEs.
The Agency would be
responsible, on behalf of the Employment Secretary, for deciding which job
seekers will be participants in the employment assistance scheme.
The
legislation would define the broad eligibility criteria for employment
assistance as being:
• registered as unemployed (this will be with
the Agency); or
• in receipt of employment services from the
Commonwealth.
The Ministerial Statement indicated that (intensive)
employment assistance eligibility should be confined to job seekers who have
been unemployed for 12 months or more or are assessed as at high risk of
long-term unemployment, and who are:
• a recipient of a
qualifying DSS income support allowance (Newstart Allowance, Youth Training
Allowance, Sole Parent Pension, Disability Support Pension and other forms of
DSS income support but excluding Age Pension and Mature Age Allowance);
or
• a participant in a Community Development Employment Project;
or
• an unemployed young person aged 15 to 20 years and not in receipt
of income support.
The legislation would provide for the Minister for
Employment, Education, Training and Youth Affairs to make a written
determination specifying eligibility criteria for employment assistance. This
determination is likely to include the criteria listed above.
As well,
the Minister may include in this determination events or circumstances which
disqualify people from employment assistance eligibility. The determination may
also include matters to be taken into account by the Agency, on behalf of the
Employment Secretary, when determining a person is not eligible for employment
assistance.
Referral to employment assistance
Because
employment assistance is the most costly employment service, the Government is
concerned that places be directed to those job seekers who are most in need and
who have capacity to benefit from the assistance. For this reason, the
legislation would provide for discretion on the part of the Agency, on behalf of
the Employment Secretary, to ration the flow of people eligible for
employment assistance into employment assistance participation.
Eligibility for employment assistance will not imply automatic or immediate
access to this assistance.
The referral process for employment
assistance that would be provided for in the legislation is as follows (staff of
the Agency would be acting under authority delegated by the Employment
Secretary):
Depending on available employment assistance places, the
Agency will notify in writing some job seekers who are eligible for employment
assistance (or who are likely to become eligible) to attend an interview.
Generally this interview will be with the Agency. However, the Agency may
nominate another person to conduct the interview. This could be, for example,
if the Agency considers that the person should have a professional assessment of
barriers to employment entry. If the Agency considers that the person could
reasonably be referred to an EPE for employment assistance, the person must be
notified in writing that he or she is now a participant in the employment
assistance scheme and should choose an EPE. Whether a person could reasonably
be referred to an EPE will often depend upon whether there are sufficient
employment assistance places available.
To ensure that participants are
fully aware of their rights and obligations, the legislation would provide that
the participant must be given written information about the employment
assistance scheme and informed that he or she will be required to enter into an
Employment Assistance Activity Agreement (EAAA).
• The EAAA is an
agreement negotiated between the participant and the EPE setting out a programme
of activities aimed at getting the participant a job.
The circumstances
under which a person ceases to be a participant would be specified in a
Ministerial Determination. These circumstances are expected to include the
person:
• obtaining full-time employment for 26 weeks or more;
• having been assessed as having no capacity to benefit from
employment assistance; or
• failing to enter into or comply with their
EAAA without a reasonable excuse.
If a job seeker is in receipt of
Newstart Allowance or Youth Training Allowance and fails to attend an interview
without a reasonable excuse, he or she may lose qualification for allowance for
a period. This provision underlines the importance the Government attaches to
job seekers taking advantage of the opportunity to participate in the employment
assistance scheme.
EPE choice
If there is more than one
EPE to which a participant could reasonably be referred, the legislation would
provide that the participant be given the opportunity to nominate the EPE he or
she would prefer. The Agency will refer the participant to his or her nominated
EPE if it is reasonable to do so. Otherwise, the Agency will nominate an EPE
for that participant. The Agency will also nominate an EPE for those clients
who do not express a preference.
Employment Assistance Activity
Agreements
The legislation would require participants to enter into
an Employment Assistance Activity Agreement (EAAA) with the EPE providing their
employment assistance. As well as setting out activities aimed at getting the
participant a job or improving their employment prospects (such as paid work
experience or training), the EAAA will set out the rights and responsibilities
of the EPE and job seeker and the timeframe for completing these activities.
The terms of the EAAA must take into account the participant’s capacity to
comply with the agreement, such as their education and the state of the local
labour market.
The legislation would require the participant to negotiate
and comply with their EAAA. For participants who are in receipt of Newstart
Allowance or Youth Training Allowance (the majority of participants) the
legislation provides that an EAAA will take the place of the Newstart Activity
Agreement for the purposes of the Social Security Act 1991 and the Youth
Training Activity Agreement in the Student and Youth Assistance Act 1973.
For these participants, failure to enter into or comply with an EAAA without a
reasonable excuse may result in the loss of allowance for some period of time.
The EAAA would provide the clear basis for any penalty imposed on the
participant for non-compliance but it also protects a participant against any
unreasonable demands by the EPE.
Officers in the Agency, acting in
accordance with delegations under the Social Security Act 1991, would be
responsible for deciding whether to breach a participant in receipt of an
unemployment allowance for failure to enter into an EAAA or for failure to
comply with the EAAA, taking into account advice from the
EPE.
Monitoring and information gathering powers
The
legislation would provide for access by the Commonwealth to information to
enable it to both monitor compliance with contractual arrangements and meet
accountability requirements. Because a wide ranging evaluation will be
essential to assess the effectiveness of these comprehensive reforms, the
legislation also enables the Commonwealth to access information for more general
monitoring and evaluation purposes. Monitoring and evaluation data will assist
in the promulgation of best practice. This will enable a more effective
employment placement market to develop and facilitate the continuous improvement
of employment services.
Advisory committees
The
legislation would provide for the Minister to establish a national advisory
committee to advise the Employment Secretary on the provision of employment
services. It would also provide for the establishment of regionally-based area
committees which will advise the Employment Secretary on employment and training
opportunities and increase the Department of Employment, Education, Training and
Youth Affair’s responsiveness to regional labour markets. The
establishment of area committees would also facilitate links between the
Department’s programmes and regional development.
Other
provisions
The other provisions in the Bill provide for protections
and accountability mechanisms for the Government, service providers and job
seekers that would be expected in such legislation.
These provisions
include:
• the means to ensure the confidentiality of information
concerning users of employment services;
• mechanisms within the
Department of Employment, Education, Training and Youth Affairs to investigate a
complaint about the provision of employment services; and
• access to
review of decisions relating to the assessment and referral for employment
assistance, including access to appeal to the Social Security Appeals Tribunal
and the Administrative Appeals Tribunal.
FINANCIAL IMPACT
Of itself this Bill would have no financial impact. However it does
provide the framework under which the Commonwealth will spend in the order of
one billion dollars each year once the employment placement market is fully
operational.
NOTES ON CLAUSES
PART 1 -
PRELIMINARY
Clause 1 - Short title
This clause would set out the short
title of the proposed Act.
Clause 2 - Commencement
This
clause would provide that the proposed Act would commence on
1 December 1997
Clause 3 - Objects
This clause
would set out the objects of this Act.
The objects are:
• to
establish mechanisms to deliver employment services (including employment
assistance);
• to permit the establishment of a competitive market for
the provision of employment services (including employment assistance);
and
• to provide for flexibility in the forms of employment services
available (including employment assistance).
Clause 4 - Simplified
outline
This clause would set out a simplified outline of the
provisions of the Act.
Clause 5 - Definitions
This clause
would set out the definitions of terms used in the Act. Some of the more
important definitions are discussed below.
“Agency”
means the Agency established by the Commonwealth Services Delivery Agency
Act 1996.
“eligible person” means a person who,
under a disallowable instrument made under section 17, is eligible to be
considered for referral to an employment placement enterprise for the provision
of employment assistance.
“employment assistance” has
the meaning given by section 10.
“employment placement
enterprise” means an entity engaged by the Commonwealth to provide
employment assistance.
“employment services” means
unemployment benefits within the meaning of paragraph 51(xxiiiA) of the
Constitution and includes employment assistance.
The definition of
“entity” would set out a wide range of bodies which could be
accredited as employment placement enterprises under the Act. The entities
concerned include individuals, bodies corporate, partnerships, unincorporated
associations, government authorities and government departments. This wide
definition has been included to give the Commonwealth the scope to involve a
wide range of bodies in the provision of employment
services.
“participant” has the meaning given by
section 27, which deals with the referral of eligible persons to employment
placement enterprises for the provision of employment
assistance.
Clause 6 - Documents
This clause would provide
a definition of the term “document” for the purposes of the
Act.
Clause 7 - Act binds the Crown
This clause binds the Crown in
the right of the Commonwealth, the States, the Australian Capital Territory and
the Northern Territory.
The Crown would not be liable to be prosecuted
for an offence.
PART 2 - PROVISION OF EMPLOYMENT
SERVICES
Division 1 - Simplified Outline
Clause 8 - Simplified outline
This clause would set out a simplified outline of the provisions of this Part.
Division 2 - Employment Services
Agreements
Clause 9 - Commonwealth may engage entities to provide employment
services
Subclause (1) would provide that the Employment Secretary
may, on behalf of the Commonwealth, engage an entity to provide employment
services.
Subclause (2) would provide that the terms and conditions of
engagement of an entity must be set out in a written agreement.
Clause
10 - Engagement of employment placement enterprise to provide employment
assistance
Subclause (1) would provide that an employment services agreement may involve
the engagement of an employment placement enterprise to provide employment
assistance.
Subclause (2) would provide that the basic definition of
employment assistance is that it consists of assistance to a person
that:
• is based on an assessment of the person’s individual
circumstances; and
• is aimed either at enabling the person to gain
employment or at improving the person’s prospects of gaining
employment.
The clause would also give the Minister the power to
determine that provision of specified services is, or is not, part of the
provision of employment assistance. This will give the Minister the ability to
more precisely specify what is involved in the provision of employment
assistance.
A determination made by the Minister for this purpose would
be a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901. Accordingly, it must be published in the
Gazette, tabled in the Parliament and would be subject to Parliamentary
disallowance.
Clause 11 - Factors in Commonwealth’s decision to
engage employment placement enterprise
This clause would provide that
the Minister may make a written determination specifying:
• the
matters to be taken into account by the Employment Secretary in deciding to
engage an employment placement enterprise; and
• the procedures
to be followed in relation to the decision and engagement.
The clause
provides for the Minister to have an ability to determine the nature of the
selection process for the engagement of employment placement enterprises and
considerations that are relevant to that selection process.
A
determination made by the Minister for this purpose would be a disallowable
instrument for the purposes of section 46A of the Acts Interpretation Act
1901. Accordingly, it must be published in the Gazette, tabled in
the Parliament and would be subject to Parliamentary
disallowance.
Clause 12 - Conditions of employment assistance
agreements
Subclause (2) would provide that, as a condition of its
engagement to provide employment assistance, an employment placement enterprise
may not charge fees, or similar consideration, to participants referred for the
provision of such assistance.
Subclause (3) would provide that it is also
a condition of engagement that the employment placement enterprise must comply
with notices under clause 51 to provide information about compliance with
Employment Assistance Activity Agreements.
Clause 13 - Kinds of agreement
Clause 13 would make it clear
that any agreement under this part is to be known as an “employment
services agreement”. An employment services agreement may also be or
include an “employment assistance agreement” (which is an
agreement by which an employment placement enterprise undertakes to provide
employment assistance to participants referred to it under Part
3).
Agreements under this Part would be required to contain a specific
statement that they are an employment services agreement and/or an employment
assistance agreement.
Clause 14 - Operation of certain State and
Territory laws
Certain State and Territory laws relating to the
regulation of private employment agencies have a potential to impact upon the
provision of employment services under the proposed Act.
This clause
would provide that prescribed State or Territory enactments would
not:
• render an employment services agreement
unenforceable;
• prevent an entity discharging obligations under an
employment services agreement to which the entity is a party or subject an
entity to a penalty by reason only that the entity has discharged such
obligations; or
• apply to or in relation to conduct of the entity if
such conduct is required or authorised by the Act or regulations or an
employment services agreement to which the entity is a party.
Division 3 - Administrative arrangements
Clause 15 - Arrangements between the Employment Secretary and the
Agency
This clause would provide that the Employment Secretary may
enter into service arrangements with the Chief Executive Officer of the Agency
in connection with the provision of employment services.
PART 3 - PROVISION OF EMPLOYMENT
ASSISTANCE
Division 1 - Simplified outline
Clause 16 - Simplified outline
This clause would provide a simplified outline of the provisions of this
Part.
Division 2 - Determination of eligible persons
Clause 17 - Person may become an eligible person
Persons
would become eligible persons if they are within a class of persons specified in
a Ministerial determination, and are either registered as unemployed with the
Employment Secretary or are being provided with employment
services.
Subclause (2) would provide that a determination may also
specify:
• the events or circumstances that are disqualifying
events for the purposes of this Act; and
• matters to be taken into
account by the Employment Secretary for the purposes of making a decision under
clause 25 (which deals with decisions, following an interview, that a person is
no longer an eligible person).
A determination made by the Minister would
be a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901. Accordingly, it must be published in the
Gazette, tabled in the Parliament and will be subject to Parliamentary
disallowance.
It is intended that such a Ministerial determination would
at least include the following classes of persons:
• jobseekers who
have been unemployed for 12 months or more; or
• persons at risk of
becoming long-term unemployed;
and who fall into one of the following
eligibility categories:
• a recipient of DSS income support
allowance (including unemployment benefit, sole parent pension, and disability
support pension);
• a participant in the Community Development
Employment Programme; or
• an unemployed person 15 -20 years old and
not in receipt of income support.
Subclause (4) would provide that the
Employment Secretary, in special circumstances, may specify that a person
registered with the Employment Secretary or being provided with unemployment
benefits is to be a participant in the employment placement enterprise
system.
Clause 18 - Section 17 determination not to apply to certain
persons
A determination by the Minister under subclause 17(1) would
not have effect if a determination is made under clause 23 that a person is not
to become an eligible person.
Clause 19 - Person may cease to be an
eligible person
This clause would provide that a person remains an
eligible person until a disqualifying event happens in relation to the
person.
Division 3 - Determination of participants
Clause 20 - Person who is expected to be eligible person may be
interviewed
Subclause (1) would provide that, if the Employment
Secretary forms the opinion that it is reasonably likely that a person will
become an eligible person, then that person may be notified (in writing or
otherwise) of that opinion and that the person may be considered for referral to
an employment placement enterprise.
Subclause (2) would provide that the
Employment Secretary may then do either or both of the
following:
• ask the person to attend or take part in an interview
with the Agency; or
• ask the person to attend an interview with a
person nominated by the Employment Secretary.
The notices under subclause
(1) may be in writing. The rules in sections 28A and 29 of the Acts
Interpretation Act 1901 would apply to such notifications.
Clause
21 - Eligible persons may be interviewed
Subclause (1) would provide
that:
• if a person has become an eligible person;
and
• since becoming an eligible person, has not been referred to an
employment placement enterprise,
then the Employment Secretary may give
the person a notice that they have become an eligible person and may be
considered for referral to an employment placement enterprise for employment
assistance.
Subclause (2) would provide that the Employment Secretary may
then do either or both of the following:
• ask the person to attend
or take part in an interview with the Agency; or
• ask the person to
attend an interview with a person nominated by the Employment
Secretary.
The notices under subclause (1) may be in writing. The rules
in sections 28A and 29 of the Acts Interpretation Act 1901 would apply to
such notifications.
Subclause (3) would provide that a person may be
interviewed more than once and subclause (4) would provide that a person who has
failed to attend an interview may be asked to attend another
interview.
Clause 22 - Consequences of failure to attend
interview
Section 630C of the Social Security Act 1991 and section 114 of the
Student and Youth Assistance Act 1973 would provide a mechanism to require a
person to attend, contact or give information to the Agency or the Department of
Social Security. Non-compliance with such a requirement could result in a
deferment period applying to the person's newstart allowance or youth training
allowance.
This clause would provide that these mechanisms under the
Social Security Act 1991 or the Student and Youth Assistance Act
1973, as the case may be, apply in relation to a similar failure to comply
with a request under subclauses 20(2) or 21(2) of this Act. Note that
subsection 630C(3) of the Social Security Act 1991 and subsection 114(2)
of the Student and Youth Assistance Act 1973, which make the allowance
payable if the Secretary is satisfied that the person had a reasonable excuse
for not complying would also apply to a requirement under subclauses 20(2) or
21(2) of this Act.
Clause 23 - Determination that person not to become
eligible person
If a person has attended an interview under clause
20, the Employment Secretary may make a written determination that a person is
not to become an eligible person. In doing so the Employment Secretary must
take into account any matters in a determination made by the Minister under
clause 17.
Clause 24 - Person to be
notified.
If the Employment Secretary makes a determination under
clause 23, the person must be given written notice of that
determination.
The notices under this clause must be in writing. The
rules in sections 28A and 29 of the Acts Interpretation Act 1901 would
apply to such notifications.
Clause 25 - Determination that person is
no longer eligible person
If a person has attended an interview under
clauses 20 or 21 then the Employment Secretary may make a written determination
that the person is no longer an eligible person. In making such a
determination, the Employment Secretary must take into account any matters
specified in a determination made by the Minister under clause
17.
Clause 26 - Person to be notified
If the Employment
Secretary makes a determination under clause 25, the person must be given
written notice of that determination.
The notices under this clause must
be in writing. The rules in sections 28A and 29 of the Acts Interpretation
Act 1901 would apply to such notifications.
Clause 27 - Person
may become participant
This clause would provide that the Employment
Secretary may make a written determination that a person is a participant in the
employment assistance scheme if:
• the person has attended or taken
part in an interview under either clause 20 or clause 21;
• the person
is an eligible person; and
• the Employment Secretary considers that
the person could reasonably be referred to an employment placement
enterprise.
Matters which will affect whether or not a person could
reasonably be referred to an employment placement enterprise include the
availability of suitable enterprises in the area and the number of other
eligible persons which may be considered for referral.
Clause 28 -
Person may cease to be a participant - Employment Secretary
determination
This clause would provide that the Employment Secretary
may determine that a person is no longer a participant if it is later considered
that the person could not reasonably be referred to an employment placement
enterprise. Such a determination would be a terminating event for the purposes
of clause 29.
Clause 29 - Person may cease to be a
participant - general
Subclause (1) would provide that a person
remains a participant until a terminating event happens.
Subclause (2)
would provide that the Minister may make a written determination that a specific
event or circumstance is a terminating event.
A determination made by the
Minister would be a disallowable instrument for the purposes of section 46A of
the Acts Interpretation Act 1901. Accordingly, it must be published in
the Gazette, tabled in the Parliament and will be subject to
Parliamentary disallowance.
Clause 30 - Person who becomes participant
to be notified and given information
Subclause (1) would provide
that, if the Employment Secretary makes a determination under clause 27 that a
person is a participant in the employment assistance scheme, then the Employment
Secretary must give the person written notice of that
determination.
Subclause (2) would provide that the written notice
must:
• give the person such information about the employment
assistance schema as the Employment Secretary approves in
writing;
• inform the person that the Employment Secretary proposes to
refer the person to an employment placement enterprise; and
• that upon
referral, the person will be required to enter into an Employment Assistance
Activity Agreement (see clause 40).
Notices under subclause (1) must be
in writing so that the rules in sections 28A and 29 of the Acts
Interpretation Act 1901 apply to such notifications.
Clause 31 -
Person may be asked to nominate employment placement enterprise
This
clause would provide that, if the person could reasonably be referred to one of
a number of employment placement enterprises, then the Employment Secretary
must, in the notice referred to in clause 30, ask the person to nominate an
employment placement enterprise from among that number. The person is to be
given up to 5 business days to make such nomination.
Clause 32 -
Referral to employment placement enterprise
Subclause (1) would
provide that if:
• a notice under clause 30 asks a person to
nominate an employment placement enterprise; and
• the Employment
Secretary receives a written nomination within 5 business days;
and
• the Employment Secretary considers that the person could
reasonably be referred to the nominated employment placement enterprise,
then the Employment Secretary must decide to refer the person to the
nominated enterprise.
Subclause (2) would provide that
if:
• a person fails or declines within 5 business days to nominate
a preferred employment placement enterprise; and
• the Employment
Secretary considers that the person could reasonably be referred to the
nominated employment placement enterprise,
then the Employment Secretary
must decide to refer the person to an enterprise nominated by the Employment
Secretary.
Subclause (3) would provide that if there is only one
employment placement enterprise to which a person could reasonably be referred,
the Employment Secretary must decide to refer the person to that enterprise.
Clause 33 - Termination of referrals
Subclauses (1) and
(2) would provide for the Employment Secretary to terminate the referral of a
participant to an employment placement enterprise. It is proposed for this to
generally occur when the provision of employment placement enterprise services
by an enterprise to a participant has effectively ceased, eg. that the
employment placement enterprise goes out of business or the relationship between
the employment placement enterprise and the participant breaks down.
Subclause (3) would require the CES to give the participant notice in
writing of a decision to terminate the referral. Under subclause (4), the
decision would take effect when the notice is given.
Subclause (5) would
require, if the Employment Secretary is of the opinion that the participant
could be referred to another employment placement enterprise, the notice of
termination of referral is to state either, that the Employment Secretary
proposes to refer the participant to another employment placement enterprise
and, if a choice is available, that the participant may nominate an enterprise
from a number of enterprises within 5 business days, or that the person must
attend an interview with the Agency or a person nominated by the Employment
Secretary.
Subclause (6) would allow the Employment Secretary to make a
further request if a person does not take part in an interview as previously
requested.
Clause 34 - Consequences of failure to attend
interview
Section 630C of the Social Security Act 1991 and
section 114 of the Student and Youth Assistance Act 1973 would provide a
mechanism to require a person to attend, contact or give information to the
Agency or the Department of Social Security. Non-compliance with such a
requirement could result in a deferment period applying to the person's newstart
allowance or youth training allowance.
This clause would provide that
these mechanisms under the Social Security Act 1991 or the Student and
Youth Assistance Act 1973, as the case may be, apply in relation to a
similar failure to comply with a request under subclauses 33(5) or (6) of this
Bill. Note that subsection 630C(3) of the Social Security Act 1991 and
subsection 114(2) of the Student and Youth Assistance Act 1973, which
make the allowance payable if the Secretary is satisfied that the person had a
reasonable excuse for not complying would also apply to a requirement under
subclauses 33(5) or (6) of this Bill.
The proposed provision would be
similar in effect to clause 22.
Clause 35 - Referral to another
employment placement enterprise - no interview
This clause would set
out requirements for the referral to a new employment placement enterprise when
the Employment Secretary does not propose to interview the participant but has
given the participant a notice under paragraph 33(5)(a)
(ie notice of
proposed referral to a new employment placement enterprise).
Subclause
(2) would provide that if:
• a notice under clause 33 asks a person
to nominate an employment placement enterprise; and
• the Employment
Secretary receives a written nomination within 5 business days;
and
• the Employment Secretary considers that the person could
reasonably be referred to the nominated employment placement enterprise,
then the Employment Secretary must decide to refer the person to the
nominated enterprise.
Subclause (3) would provide that
if:
• a person fails or declines within 5 business days to nominate
a preferred employment placement enterprise; and
• the Employment
Secretary considers that the person could reasonably be referred to an
employment placement enterprise,
then the Employment Secretary must
decide to refer the person to an enterprise nominated by the Employment
Secretary.
Subclause (4) would provide that if there is only one
employment placement enterprise to which a person could reasonably be referred,
the Employment Secretary must decide to refer the person to that enterprise.
Clause 36 - Referral to another employment placement
enterprise - interview
This clause would set out requirements for the
referral to a new employment placement enterprise when the Employment Secretary
has, under clause 33, asked the person to attend an interview with the Agency or
a person nominated by the Employment Secretary.
Subclause (2) would
provide that if:
• the person is asked before, at or after the
interview, to nominate an employment placement enterprise to which he or she
wishes to be referred; and
• the Employment Secretary receives a
written nomination within 5 business days; and
• the Employment
Secretary considers that the person could reasonably be referred to the
nominated employment placement enterprise,
then the Employment Secretary
must decide to refer the person to the nominated enterprise.
Subclause
(3) would provide that if:
• a person fails or declined within 5
business days to nominate a preferred employment placement enterprise;
and
• the Employment Secretary considers that the person could
reasonably be referred to an employment placement enterprise,
then the
Employment Secretary must decide to refer the person to an enterprise nominated
by the Employment Secretary.
Subclause (4) would provide that if there is
only one employment placement enterprise to which a person could reasonably be
referred, the Employment Secretary must decide to refer the person to that
enterprise.
Clause 37 - Employment Secretary to notify participant and
employment placement enterprise of decision to refer
This clause
would require the Employment Secretary to notify the employment placement
enterprise and the participant of a decision to refer a participant to the
enterprise. The notice must be given as soon as practicable after the date of
the decision.
It is intended that the notice be in writing and that the
rules in sections 28A and 29 of the Acts Interpretation Act 1901 apply to
such notifications.
Clause 38 - Employment Secretary to notify
participant and employment placement enterprise of decision to terminate
referral
This clause would require the Employment Secretary to notify
the employment placement enterprise and the participant of a decision to
terminate the referral of a participant to the enterprise. The notice must be
given a soon as practicable after the date of the decision.
It is
intended that the notice be in writing and that the rules in sections 28A and 29
of the Acts Interpretation Act 1901 apply to such
notifications.
PART 4 - EMPLOYMENT ASSISTANCE ACTIVITY AGREEMENTS
Division 1 - Simplified outline
Clause 39 - Simplified outline
This clause would provide a
simplified outline of the provisions of this Part.
Division 2 - Requirements relating to Employment Assistance Activity Agreements
Clause 40 - Person must enter Employment Assistance Activity
Agreement
This clause would require a person who has been referred to
an employment placement enterprise to enter into an Employment Assistance
Activity Agreement with the enterprise. These agreements are similar in form
to, and are required in place of, the Newstart Activity Agreements required for
allowees under Part 2.12 of the Social Security Act 1991 or Youth
Training Activity Agreements required for allowees under Part 8 of the
Student and Youth Assistance Act 1973 who have not been referred to
employment placement enterprises. The agreements perform the same function as
the agreements in the Social Security Act 1991 and the Student and
Youth Assistance Act 1973 in respect of the continued qualification for
newstart allowance or youth training allowance, as the case may
be.
Subclause (2) would require a written agreement between the person
and his or her employment placement enterprise, which must be in a form jointly
approved by the Employment Secretary and the Social Security Secretary. The
agreement is to be known as an “Employment Placement Activity
Agreement”.
Subclause (3) would place an obligation on the
Employment Secretary to require a person without an Employment Placement
Activity Agreement to enter into an agreement.
Subclause (4) would make
provision for the Employment Secretary to require a replacement agreement to be
entered into.
Subclause (5) would require the Employment Secretary to
give written notice to the person concerning the requirement to enter into an
agreement, and the place and times at which the agreement is to be
negotiated.
It is intended that the notice be in writing and that the
rules in sections 28A and 29 of the Acts Interpretation Act 1901 apply to
such notifications.
Subclause (6) would allow the Employment Secretary to
delegate his or her powers under subclauses (3), (4) and (5) to employment
placement enterprises or their directors, officers or employees.
Subclause (7) would make it clear that a power delegated under
subsection (6) is to be regarded as a function conferred on the employment
placement enterprise under this Act.
Clause 41 - Terms of Employment
Assistance Activity Agreement
This clause would describe the nature
of the activities to be included in an Employment Assistance Activity
Agreement.
Subclause (1) would provide that 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 The Employment Secretary must approve the
activities to be included in a person's agreement.
Subclause (2) would
provide that, without limiting subclause (1), the activities may
include:
• a job search;
• a training
course;
• paid work experience;
• voluntary work;
or
• measures designed to eliminate or reduce any disadvantage the
person has in the labour market.
Subclause (3) would enable an Employment
Placement Activity Agreement to contain requirements for the person (on request
or otherwise) to: attend an office of the Agency or the employment placement
enterprise; contact the Agency or the enterprise; or provide information to the
Agency or the enterprise. Such requirements could, for example, be specified to
be at particular intervals, where particular circumstances occur, or at the
request of the employment placement enterprise. Such requirements must be
specified in the Agreement. An agreement could contain one or more requirements
under one or more of the paragraphs of the provision.
Subclause (4) would
provide that the Employment Placement Activity Agreement may include terms
requiring the person, on request or otherwise, to substantiate to his or her
employment placement enterprise, their compliance with the terms of the
Agreement. An example might be a term which requires the person to show the
enterprise a copy of 2 job applications the person has sent each
week.
Clause 42 - Terms of Agreement to be approved by
Employment Secretary
The Employment Secretary must approve the terms
of an Employment Placement Activity Agreement, having regard to the person's
capacity to comply with the proposed agreement and the person's
needs.
Subclause (3) would set out the criteria which the Employment
Secretary is to take into account when considering a person's capacity to comply
with an agreement and the person's needs, ie:
• the person’s
education, experience, skills, age and physical condition;
• the state
of the labour market in the locality where the person resides;
• the
training opportunities available to the person; and
• any other matters
that the Employment Secretary considers relevant in the
circumstances.
Subclause (4) would make provision for the Employment
Secretary to delegate his or her powers under this section to employment
placement enterprises or their directors, officers or employees.
Subclause (5) would make it clear that a power delegated under subclause
(4) is to be regarded as a function conferred on the enterprise under this
Act.
Clause 43 - Cancellation or review etc. of Employment Assistance
Activity Agreement
Subclause (1) would provide for the variation, suspension, cancellation or
review of employment assistance activity agreements.
Subclause (2) would
deem an Employment Assistance Activity Agreement to be cancelled when a person's
referral to an employment placement enterprise is terminated under clause
33.
Division 3 - Relationship between Activity Agreements under this Act and other Acts
Clause 44 - Person to whom this Division applies
This
clause would provide for the application of this Division to persons who are
participants in the employment assistance scheme from the date the determination
under clause 27 that they are a participant and ending on the date they cease to
be a participant.
Clause 45 - Employment Assistance
Activity Agreements to supersede Newstart Activity Agreements and Youth Training
Activity Agreements
Subclause (1) would cancel the effect of any
Newstart Activity Agreement or Youth Training Activity Agreement that a person
was party to prior to the referral to an employment placement
enterprise.
Subclause (2) would exempt a person from being required to
enter into a Newstart Activity Agreement under the Social Security Act
1991 or a Youth Training Activity Agreement under the Student and Youth
Assistance Act 1973 while that person is referred to the
enterprise.
Clause 46 - Qualification for newstart allowance or youth
training allowance
Subclause (1) would deem a person not to be
qualified for a newstart allowance under the Social Security Act 1991 or
a youth training allowance under the Student and Youth Assistance Act
1973, as the case may be, unless:
• when the person is required
under clause 40 to enter into a Employment Assistance Activity Agreement in
relation to the period, the person enters into that agreement;
and
• while the agreement is in force, the person satisfies the
Secretary administering the Social Security Act 1991 and the relevant
Part of the Student and Youth Assistance Act 1973, that the person is
taking reasonable steps to comply with the terms of the agreement;
and
• at all times during the period when the person is a party to the
agreement, the person is prepared to enter into another such agreement instead
of the existing agreement if required to do so under clause 40.
Subclause
(2) would provide for what may be regarded as “reasonable steps” to
comply with the terms of a Employment Assistance Activity Agreement. A person
would be regarded not to have taken reasonable steps to comply if the reason for
the failure to comply was a matter within the person's control or was reasonably
foreseeable by the person.
Clause 47 - Modification of Social Security
Act
To enable a person who is a participant in the employment
assistance scheme to be treated as unemployed for the purposes of the Social
Security Act 1991, subclause (1) would provide for a reference to a Newstart
Activity Agreement in section 595 of the Social Security Act 1991 to be a
reference to an Employment Assistance Activity Agreement for the purposes of
that section.
Subclause (2) would provide that, during a person’s
participation in the employment assistance scheme, a reference in section 601of
the Social Security Act 1991 to a Newstart Activity Agreement is taken to
be a reference to an Employment Assistance Activity Agreement. This means that
a person will satisfy the activity test if they are taking reasonable steps to
comply with the terms of an Employment Assistance Activity Agreement and that
they will not satisfy the activity test if they are not taking reasonable steps
to comply with the agreement.
Section 607 of the Social Security Act
1991 deals with the failure of a person to negotiate a Newstart Activity
Agreement. Subclause (3) would apply that section to a failure to negotiate an
Employment Assistance Activity Agreement under this Act.
Sections 625 and
626 of the Social Security Act 1991 set out deferment periods that apply
where a newstart allowee fails to enter into an activity agreement or does not
comply with an activity agreement. Subclause (4) would apply these sections of
the Social Security Act 1991 (and the related section 608) in a similar
way to allowees who have an Employment Assistance Activity Agreement under this
Act.
Subsection 613(2) of the Social Security Act 1991 provides
exemptions to a general rule that newstart allowance is not payable to full time
students. One of those exemptions applies to courses undertaken under a
Newstart Activity Agreement. Subclause (4) would also extend the exemption to
courses undertaken under an Employment Assistance Activity
Agreement.
Clause 48 - Modification of Student and Youth Assistance
Act
To enable a person who is a participant in the employment
assistance scheme to be treated as unemployed for the purposes of the Social
Security Act 1991, subclause (1) would provide for a reference to a Youth
Training Activity Agreement in section 68 of the Student and Youth Assistance
Act 1973 to be a reference to an Employment Assistance Activity Agreement
for the purposes of that section.
Subclause (2) would provide that,
during a person’s participation in the employment assistance scheme, a
reference in section 75 of the Student and Youth Assistance Act 1973 to a
Youth Training Activity Agreement is taken to be a reference to an Employment
Assistance Activity Agreement. This means that a person will satisfy the
activity test if they are taking reasonable steps to comply with the terms of an
Employment Assistance Activity Agreement and that they will not satisfy the
activity test if they are not taking reasonable steps to comply with the
agreement.
Section 81 of the Student and Youth Assistance Act 1973
deals with the failure of a person to negotiate a Newstart Activity Agreement.
Subclause (3) would apply that section to a failure to negotiate an Employment
Assistance Activity Agreement under this Act.
Sections 104 and 105 of the
Student and Youth Assistance Act 1973 set out deferment periods that
apply where a youth training allowee fails to enter into an activity agreement
or does not comply with an activity agreement. Subclause (4) would apply these
sections of the Student and Youth Assistance Act 1973 in a similar way to
allowees who have an Employment Assistance Activity Agreement under this
Act.
Clause 49 - Division has effect despite Social Security
Act and Student and Youth Assistance Act
This clause would provide
that this Division has effect despite anything in the Social Security Act
1991 and Part 8 of the Student and Youth Assistance Act
1973.
Clause 50 - Definitions
This clause would provide
for definitions for certain terms used in this Division.
Division 4 - Compliance with Agreement
Clause 51 - Information about compliance with Employment Assistance
Activity Agreement
This clause would provide 2 mechanisms for
requiring a person with an Employment Assistance Activity Agreement to
give information to the Employment Secretary about compliance with that
agreement.
First, subclause (2) would impose an obligation on a Social
Security allowee, or a recipient of youth training allowance under Part 8 of the
Student and Youth Assistance Act 1973, to notify the Employment
Secretary of any circumstances preventing or affecting the person's compliance
with the agreement.
Second, under subclause (3), the Employment Secretary
may seek information about a person's compliance with an agreement from the
person or the employment placement enterprise. The Employment Secretary must
provide a written notice specifying the information which is required.
It
is intended that the notice be in writing and that the rules in sections 28A and
29 of the Acts Interpretation Act 1901 apply to such
notifications.
Subclause (4) would require a person or employment
placement enterprise to comply with the notice within a time and in a manner
specified in the notice.
Section 630C of the Social Security Act
1991 and section 114 of the Student and Youth Assistance Act 1973
would provide a mechanism to require a person to attend, contact or give
information to the Agency or the Department of Social Security. Non-compliance
with such a requirement can result in a deferment period applying to the
person's newstart allowance or youth training allowance.
This clause
would provide that these mechanisms under the Social Security Act 1991 or
the Student and Youth Assistance Act 1973, as the case may be, apply in
relation to a similar failure to comply with a request under subclause (3).
Note that subsection 630C(3) of the Social Security Act 1991 and
subsection 114(2) of the Student and Youth Assistance Act 1973, which
make the allowance payable if the Secretary is satisfied that the person had a
reasonable excuse for not complying would also apply to a requirement under
subclause (3).
PART 5 - MANAGEMENT OF PERSONAL INFORMATION
Division 1 - Control of employment services records
Clause 52 - Control of employment services
records
Subclause (1) would provide for the Division to apply to
records that are connected with the provision, or anticipated provision, of
employment services to a person by an employment services provider under an
employment services agreement. The record must also be a record of personal
information about the person.
Subclause (2) would provide for the
Employment Secretary to make a written determination that specified records are
employment services records for the purposes of this Part.
Subclause (3)
would provide that the Employment Secretary must consult the Privacy
Commissioner before making a determination under this clause.
A
determination made by the Employment Secretary for this purpose would be a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901. Accordingly, it must be published in the
Gazette, tabled in the Parliament and would be subject to Parliamentary
disallowance.
Clause 53 - Employment Secretary may make
rules
Subclause (1) would provide for the Employment Secretary to
formulate rules about any or all of the following:
• the provision
of employment assistance documents by the Employment Secretary to employment
services providers;
• the creation of such documents by employment
services providers;
• the handling, copying and storage of such
documents;
• the amendment of such documents;
• the return of
such documents to the Employment Secretary;
• the destruction of, or of
copies of, such documents held by employment services providers;
• the
retention of such documents by employment services providers;
• the
giving of information relating to rules about any of the above-mentioned
matters, where the information is provided to a person who is or has been using
employment services provided under an employment services agreement;
• the imposing of penalties of not more than $500 for a breach of the
employment services records rules; and
• the form in which consent
under clause 54 is to be given.
It is expected that the Employment
Secretary, in formulating the employment assistance document rules, will also
consult with the Attorney-General's Department.
Subclause (2) would
provide that the Employment Secretary must consult the Privacy Commissioner and
the Director-General of the Australian Archives before making a determination
under this clause.
The rules would be a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
Accordingly, they must be published in the Gazette, tabled in the
Parliament and would be subject to Parliamentary disallowance.
Clause 54 - Rules relating to sensitive personal information about a
person
This clause would set out rules relating to records that
consist of or contain sensitive personal information about a
person.
“Sensitive personal information” is defined by clause
5 to mean personal information about a person that relates to that
person’s:
• racial or ethnic origin;
• religious or
philosophical beliefs;
• trade union membership;
• sexual
orientation;
• health; or
• criminal record.
The clause
would generally prohibit the Employment Secretary providing a record containing
sensitive personal information about a person to an employment services provider
unless:
• the person consents; or
• the person was made
aware at the time the information was collected that it could be given to an
employment services provider and has been consulted (to the extent practicable)
about the proposed giving of the record.
Subclause (4) is to the effect
that the Employment Secretary must not provide a record containing sensitive
personal information about a person if it also contains information about
another person or irrelevant information.
Subclauses (5) & (6) would
require the Employment Secretary to consult with the Privacy Commissioner on the
publication of guidelines to assist in identifying information that is
irrelevant for the purposes of subclause (4).
The clause would generally
prohibit an employment services provider from providing a record containing
sensitive personal information about a person to another person
unless:
• the first mentioned person consents; or
• the
Employment Secretary is satisfied the provision of the record is justified
despite the absence of consent.
Subclauses (8) & (9) would require
the Employment Secretary to consult with the Privacy Commissioner on the
publication of guidelines to assist in identifying circumstances in which
provision of the record is justified.
Subclause (10) would provide for
the form of consent to the provision of personal information to be set out in
the rules under clause 53.
Clause 55 - Relationship with Archives
Act and Privacy Act
The employment assistance document rules must not
be inconsistent with the Archives Act 1983 and such documents are
Commonwealth Records for the purposes of that Act .
The employment
assistance document rules must not be inconsistent with the Privacy Act
1988.
Division 2 - Secrecy
Clause 56 - Secrecy
Section 70 of the Crimes Act
1914 creates an offence for disclosure of information by Commonwealth
officers in breach of their duties. The special definition of Commonwealth
officer that applies to that section would extend to employment services
providers.
The object of the section is to create duties of
non-disclosure for the purposes of section 70 of the Crimes Act
1914.
Subclause (3) would provide that, subject to subclauses (4) and
(5) an employment services provider must not
disclose:
• information concerning a participant that is contained
in an employment services record; or
• information concerning a
participant, 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 participant.
Subclause (3) would not apply to a person who discloses
the information for the purposes of performing functions under or for the
purposes of this Act.
Subclause (5) provides a list of circumstances in
which disclosure may otherwise be made and which substantially follows
Information Privacy Principle 11 of the Privacy Act 1988. The
circumstances are:
• the participant has consented to the
disclosure;
• the participant is aware, or is reasonably likely to be
aware that information of that kind is usually communicated to that person;
• the employment services provider concerned reasonably believes that
the disclosure is necessary to prevent or lessen a serious and imminent threat
to life or health of the participant or any other individual;
• the
disclosure is required by or authorised by law or under a law; or
• the
disclosure is reasonably necessary for the enforcement of a criminal law or a
law imposing a pecuniary penalty or for the protection of the public
revenue.
PART 6 - INVESTIGATIONS BY EMPLOYMENT SECRETARY
Clause 57 - Object of Part
This part would provide for
investigation by the Employment Secretary of certain matters relating to the
provision of employment services.
Clause 58 - Matters to which this
Part applies
This clause would set out the matters which may be
investigated by the Employment Secretary.
Those matters
are:
• the performance of functions and the exercise of powers of
persons acting as delegates of the Employment Secretary;
• the
provision of employment services by entities under employment services
agreements;
• a breach of an employment services
agreement;
• a contravention of the employment services record rules;
and
• a contravention of a duty of non-disclosure.
Clause 59
- Complaints to Employment Secretary
This clause would make provision
for written complaints against entities to be lodged with the Employment
Secretary.
Clause 60 - Investigations by Employment Secretary
This clause
would provide the Employment Secretary with discretionary power to investigate a
matter, either where a written complaint is lodged, or of his or her own
accord.
Subclause (2) would compel the Employment Secretary to
investigate a matter at the request of the Minister.
Clause 61 -
Preliminary enquiries
This clause would allow the Employment
Secretary to make preliminary enquiries of the respondent against whom a
complaint has been made, to determine whether it has power to investigate the
matter or to determine whether it should investigate the
matter.
Clause 62 - Reference of certain matters to Departmental
Secretaries
This clause would provide that the Employment Secretary
must transfer a complaint to the Chief Executive Officer of the Agency or the
Social Security Secretary if the Employment Secretary decides that he or she
does not have power to investigate the complaint or decides that he or she
should not investigate the complaint and considers that the matter could be more
conveniently dealt with by that Chief Executive Officer or Secretary, as the
case may be.
Clause 63 - Conduct of investigations
This
clause would set out the manner in which investigations should be conducted by
the Employment Secretary.
It would include provisions in relation to
informing respondents of investigations (unless the investigation would be
prejudiced), the obtaining of information, and providing a party to the
complaint with the opportunity to make submissions prior to the Employment
Secretary making a finding adverse to the party.
Clause 64 -
Complainant and certain other persons to be told about decisions not to
investigate
This clause would provide that where the Employment
Secretary, after starting investigation of a complaint, decides not to
investigate the complaint further, the Employment Secretary must inform the
respondent and the complainant as soon as practicable after the decision is
made.
Clause 65 - Reference of matters to Ombudsman
This
clause would enable complaints to be referred to the Commonwealth
Ombudsman.
If the Employment Secretary transfers a complaint to the
Commonwealth Ombudsman, he or she must give written notice to the complainant of
the transfer. Upon transfer, the Employment Secretary must provide any
information or documents that relate to the complaint.
Clause 66 -
Reference of matters to Australian Competition and Consumer
Commission
This clause would enable complaints to be referred to the
Australian Competition and Consumer Commission.
If the Employment
Secretary transfers a complaint to the Australian Competition and Consumer
Commission, he or she must give written notice to the complainant of the
transfer. Upon transfer, the Employment Secretary must provide any information
or documents that relate to the complaint.
Where the Australian
Competition and Consumer Commission decides to conduct an investigation into the
matter, it must report to the Employment Secretary on the conduct of the
investigation and any findings it makes.
Clause 67 - Reference of
matters to Privacy Commissioner
This clause would enable complaints
to be referred to the Privacy Commissioner.
If the Employment Secretary
transfers a complaint to the Privacy Commissioner, he or she must give written
notice to the complainant of the transfer. Upon transfer, the Employment
Secretary must provide any information or documents that relate to the
complaint.
Where the Privacy Commissioner decides to conduct an
investigation into the matter, it must report to the Employment Secretary on the
conduct of the investigation and any findings it makes.
Clause 68 -
Effect of investigation by Auditor-General
The provision would
prevent the Employment Secretary from continuing an investigation where it
becomes apparent that the matter is under investigation by the Auditor-General,
until that investigation has been completed or the Auditor-General
consents.
Clause 69 - Reports on investigations
This clause
would enable the Employment Secretary to report to the Minister after concluding
an investigation and requires it to so report where the investigation is at the
instigation of the Minister.
Clause 70 - Protection from civil
actions
This clause would protect persons making a complaint or
providing statements or documents in connection with an investigation from civil
proceedings for loss, damage or injury, where they acted in good
faith.
PART 7 - MONITORING OF COMPLIANCE
Clause 71 - Appointment of inspectors
This clause would
enable the Employment Secretary to appoint officers of the Department as
inspectors.
Clause 72 - Identity cards for inspectors
This
clause would require identity cards to be issued to inspectors.
Clause
73 - Return of identity cards issued to inspectors
This clause would
create an offence for an inspector failing to return his or her identity card,
without reasonable excuse, upon ceasing to be an inspector. The maximum penalty
is a fine of 1 penalty unit, currently $100.
Clause 74 - Searches to
monitor compliance
This clause would enable inspectors to search
premises for the purposes of monitoring compliance by employment placement
enterprises with the conditions of their accreditation and the agreements under
which they are engaged.
The premises concerned must either be the
premises at which employment placement enterprise services are provided or
premises at which records relating to those services are kept. Residential
premises cannot be searched without the consent of the
occupier.
Inspectors would only be able to carry out a search between the
hours of 9am and 5pm, Monday to Friday, other than on a public
holiday.
Subclause (3) would limit the search powers of an inspector
where he or she believes on reasonable grounds that:
(a) the Employment
Secretary has already made reasonable efforts to exercise other powers and these
have proved insufficient to achieve the purpose; or
(b) an attempt by the
Employment Secretary to exercise such powers would not be
effective.
Subclauses (4), (5) and (6) would require the consent of an
occupier to search residential premises, require the inspector to show
identification if requested by the occupier of premises and would limit the
application of the section to searches of premises at which employment placement
enterprise services are provided or where connected records are
kept.
Clause 75 - Information-gathering powers - searches
of premises
This clause would allow an inspector, on searching
premises, to require a person to answer questions put by the inspector and
produce any documents requested by the inspector.
These powers would only
be exercised for limited purposes relating to ascertaining compliance with
conditions of accreditation, the agreement relating to the engagement of the
employment placement enterprise and certain offences under the Act.
The
inspector must first show the person his or her identity card.
Subclause
(4) would make it an offence for a person to refuse or fail to provide
information or documentation as requested by the inspector. The maximum penalty
is 30 penalty units, currently $3000.
However, subclause (5) would excuse
a person from providing the information or documentation where he or she might
incriminate himself or herself by so doing.
Clause 76 - Retention of
documents
This clause would provide that where an inspector removes a
document from a premises, seizes a document or has a document produced, the
inspector may retain the document for such a period as is necessary and
reasonable to ascertain whether certain matters, set out in this clause, have
been complied with.
PART 8 - EMPLOYMENT SECRETARY’S GENERAL
INFORMATION GATHERING POWERS
Clause 77 - Power to obtain information and
documents
This clause would give the Employment Secretary the power
to obtain information and documents relating to certain designated matters
listed in subclause (4). The power is exercised by serving a written notice on
a person.
Subclauses (2) and (3) set out certain matters that must be
included in the notice.
Clause 78 - Restriction on power to obtain
information or documents
This clause would restrict the circumstances
in which the Employment Secretary may require the giving of personal information
about a person under clause 77.
Subclause (1) would provide that such
personal information should not be required to be given where there is a
reasonably practicable alternative for the purpose in question.
Subclause
(2) would provide that, if there is no reasonably practicable alternative, the
Employment Secretary may require the giving of the information
if:
• the person consents; or
• the person was previously
aware that it was reasonably likely that the information would be required for
the purpose for which it is being requested.
Subclause (3) would provide
that the Employment Secretary must not require the giving of information
relevant to monitoring the characteristics and attributes of a person
unless:
• the person has been informed of the purposes for which
the information will be used;
• the person has consented to the
information being used for those purposes; and
• it is reasonable to
assume that the person has understood the implications of giving or withholding
consent.
Subclause (4) would provide that clause 77 does not require a
person to give information to the extent that to do so would contravene a law of
the Commonwealth (other than a law of a Territory).
Subclause (5) would
provide that the powers of the Employment Secretary under clause 77 would be
subject to Information Privacy Principles 1, 2 and 3 of the Privacy Act
1988.
Clause 79 - Copying documents - reasonable
compensation
This clause would give a person a right to be paid
reasonable compensation for the cost of providing copies of documents to the
Employment Secretary as required by paragraph 77(2)(c).
Clause 80 -
Failure to comply with section 77 notice
This clause would create an
offence where a person without reasonable excuse, intentionally or recklessly
fails to provide information or documentation after being given a written
notice. The maximum penalty is 6 months imprisonment.
Subclause (2)
would excuse a person from providing the information or documentation where he
or she might incriminate himself or herself by so doing.
Clause 81 -
Giving false or misleading information or evidence
This clause would
create an offence for a person to intentionally or recklessly provide false or
misleading information or evidence when complying with a written notice under
clause 77.
The maximum penalty is 12 months
imprisonment.
Clause 82 - Provision of false or misleading
documents
This clause would create an offence for a person to
knowingly produce documents which are false or misleading in a material
particular, when complying with a written notice under clause 77.
The
maximum penalty is 12 months imprisonment.
The offence would not apply
where the person producing the false or misleading document attaches a statement
stating that the document is false or misleading in a material particular and
referring to the material particular in which it is wrong.
Clause 83 -
Copies of documents
This clause would enable the Employment Secretary
to inspect and make and retain copies of documents produced under this Part and
retain possession of copies of documents produced in accordance with paragraph
77(2)(c).
Clause 84 - Employment Secretary may retain
documents
This clause would enable the Employment Secretary to retain
a document produced under this Part for as long as is necessary for the purposes
of the Act. The person who would otherwise be entitled to the document is to be
supplied with a certified copy of the document.
A person would be
entitled to access to inspect and make copies of documents retained by the
Employment Secretary.
PART 9 - ADVISORY COMMITTEES
Division
1 - National committee
Clause 85 - Establishment of national committee
This clause
would enable the Minister to establish a national committee.
Clause 86
- Function of national committee
This clause would provide that the
function of the national committee would be to advise the Employment Secretary
on the provision of employment services under this Act.
Clause 87 - Provisions relating to the national
committee
This clause would set out various administrative matters in
relation to the appointment of members of the national committee, the periods of
appointment of its members and the resignation and termination of appointment of
members.
Division 2 - Area committees
Clause 88 - Establishment of area committees
This clause would
enable the Employment Secretary to establish committees for specified
areas.
Clause 89 - Function of area committees
Clause 89
would provide for area committees to advise the Employment Secretary on the
following matters relating to the relevant area:
(a) the creation of
employment opportunities and training opportunities;
(b) increasing the
responsiveness of the Department to regional labour markets; and
(c) linking
the Department’s programs with regional development.
Clause 90 -
Provisions relating to area committees
Clause 90 would provide that
the Employment Secretary may formulate guidelines on the establishment of area
committees including, but not limited to, the appointment of members and the
resignation and termination of appointment of members.
Division 3 - Disclosure of interests
Clause 91 - Disclosure of interests
Clause 91 would deal with
members disclosing pecuniary interests in matters being considered by a
committee.
Subclause (1) would apply the provision to committees
established under this Part of the Act.
Subclause (2) would require
members to declare any direct or indirect pecuniary interests in matters being
considered by the committee of which they are a member. The member must
disclose the nature of his or her interest at a meeting of the committee as soon
as possible after the member becomes aware that the matter has a connection with
his or her pecuniary affairs.
Subclause (3) would prevent a member of a
committee who makes a disclosure under subclause (2) from being present at, or
participating in the deliberations of the committee on the matter. However, the
committee may allow the member to be present, or participate in such a
meeting.
Under subclause (4), a member may not be present at, or
participate in, any deliberations by the committee in relation to allowing the
member to be present.
PART 10 - REVIEW OF DECISIONS RELATING TO THE EMPLOYMENT
ASSISTANCE SCHEME, TO REFERRALS TO EMPLOYMENT PLACEMENT ENTERPRISES AND TO
EMPLOYMENT ASSISTANCE ACTIVITY AGREEMENTS
Division 1 -
Preliminary
Clause 92 - Reviewable decision
This Part would include a
mechanism in the Act for review by the Social Security Appeals Tribunal, and
then the Administrative Appeals Tribunal, of decisions of the Employment
Secretary under Part 3 which deals with the provision of employment assistance
and Part 4 which deals with Employment Assistance Activity Agreements.
A
decision under clause 27 (which deals with whether a person is a participant in
the employment assistance scheme) or clause 28 (which deals with when a person
could no longer be referred for employment assistance) would not be reviewable
on the basis that it is made as a result of consideration of whether sufficient
resources are available to provide such assistance. Such resource-based
decisions are not amenable to administrative review.
Clause 93 -
Authorised review officers
This clause would enable the Employment
Secretary to authorise an officer of the Department or of the Commonwealth
Services Delivery Agency to perform duties to review decisions under this Part.
Such authorisations must be in writing.
Persons authorised under this
clause would be known as 'authorised review officers'.
Division 2 - Internal review
Clause 94 - Employment Secretary may review decisions
This
clause would enable review of reviewable decisions where the Employment
Secretary is satisfied there is sufficient reason to review the
decision.
Applications made to the Social Security Appeals Tribunal or
the Administrative Appeals Tribunal for a review of a decision would not prevent
the Employment Secretary reviewing that decision.
In reviewing a decision
the Employment Secretary may affirm or vary the decision, or set aside the
decision and substitute a new decision.
Subclauses (4) and (5) would
require the Employment Secretary to notify the National Convenor of the Social
Security Appeals Tribunal and the Registrar of the Administrative Appeals
Tribunal, as the case may be, of the review decision, if at that time an
application had been made to the relevant tribunal for a review of the original
decision.
Subclause (6) would enable the Employment Secretary to deem
particular events to have occurred for the purpose of this Act.
Clause
95 - Application for review
This clause would provide for internal
review of decisions made under this Act. This review clause would not apply to
decisions made by the Employment Secretary personally.
The Employment
Secretary or an authorised review officer may conduct reviews under this
provision.
Subclause (3) would provide for an internal review to be
conducted prior to the Social Security Appeals Tribunal conducting a review of a
decision by deeming an application made to the Tribunal, where a person could
have applied to the Employment Secretary but did not do so, to have been made to
the Employment Secretary.
Clause 96 - Employment Secretary's powers
where application for review is made
This clause would provide that
where an application for review of a decision is made to the Employment
Secretary, the Employment Secretary or an authorised review officer must review
the decision and either:
(a) affirm the decision;
(b) vary the
decision; or
(c) set the decision aside and substitute a new
decision.
The applicant must be notified in writing of the decision by
the person conducting the review.
Subclause (3) would enable the
Employment Secretary to deem particular events to have occurred for the purpose
of this Act.
Clause 97 - Notification of further rights of
review
This clause would provide that a notification of a decision
under clause 96 must include a statement of the reasons for the decision, the
applicant's right to apply for review to the Social Security Appeals Tribunal,
and the applicant's rights to apply for a review of the Social Security Appeals
Tribunal decision to the Administrative Appeals Tribunal.
Division 3 - Review by the Social Security Appeals
Tribunal and the Administrative Appeals Tribunal
Subdivision A
- Object of Division
Clause 98 - Object of Division
This clause would set out the
object of this Division, being to enable a person affected by a reviewable
decision to have the decision reviewed by the Social Security Appeals Tribunal
and, if necessary, the Administrative Appeals Tribunal.
Subdivision B - Review by the Social Security Appeals
Tribunal
Clause 99 - Application for review
This clause would provide
for a person whose interests are affected by a decision under clause 96 (which
relates to decisions reviewed by the Employment Secretary), to apply to the
Social Security Appeals Tribunal (SSAT) for a review of that
decision.
Clause 100 - Application requirement for certain section 42
decisions
Clause 42 relates to the terms of an Employment Assistance
Activity Agreement. This clause proposes that an application to the SSAT for a
review of a decision relating to the terms of an Employment Assistance Activity
Agreement must expressly state it is an application for review of that
decision.
Clause 101 - SSAT review powers
This clause would
provide that, when the SSAT reviews a decision, it must affirm, vary or set
aside the decision under review. If the SSAT sets aside a decision it would
either substitute a new decision or refer the matter back to the Employment
Secretary together with directions or recommendations.
Subclause (2)
would provide that the SSAT may exercise all the powers conferred by the Act on
the Employment Secretary.
Under subclause (3), where the SSAT sets aside
a decision, the SSAT or the Employment Secretary (as the case requires) may deem
a certain event to have occurred for the purposes of the Act.
This clause
would not apply to decisions under clause 42 to the extent that they relate to
the terms of an Employment Assistance Activity Agreement that is in
force.
Clause 102 - Social Security Appeals Tribunal review powers
(Employment Assistance Activity Agreement decision)
This clause would provide that, if a person applies to the SSAT for a review
of a decision under clause 42, to the extent that the decision relates to the
terms of an Employment Assistance Activity Agreement that is in force, the SSAT
may only either affirm the decision or set the decision aside and refer the
matter back to the Employment Secretary for reconsideration in accordance with
any recommendations the SSAT may make.
Clause 103 - Date of effect of
SSAT decisions
Subclause (1) would provide that, subject to
subclauses (2) and (3), a decision of the SSAT comes into effect immediately on
the making of the decision.
Subclause (2) would provide that the SSAT may
specify a later date for the operation of the decision.
Subclause (3)
would provide that, where the SSAT varies or sets aside a decision under review,
the date of effect of the SSAT's decision is the date on which the decision
under review has or had effect. Subclause (4) would allow for the SSAT to order
that subclause (3) will not apply in particular cases.
This clause would
not apply to a decision under clause 42 to the extent that the decision relates
to the terms of an Employment Assistance Activity Agreement that is in
force.
Clause 104 - Date of effect of SSAT (Employment Assistance
Activity Agreement decision)
This clause would provide that, if a
person applies to the SSAT for a review of a decision under clause 42, to the
extent that the decision relates to the terms of an Employment Assistance
Activity Agreement that is in force, the SSAT decision comes into effect
immediately on the giving of the decision or such other later date as the SSAT
may specify.
Clause 105 - Application requirements
This
clause would deal with the application requirements relating to review by the
SSAT. Applications may be made in writing to an office of the SSAT, the
Department of Employment, Education, Training and Youth Affairs, the Department
of Social Security or an office of the Agency. Oral applications may also be
made to an office of the SSAT and a written record must be made by the person in
the SSAT office receiving the application, noting the date on which the
application was made.
An application may include a statement of reasons
for seeking the review.
Clause 106 - Variation of decision
before review completed
This clause would provide that, if a decision
under review is varied, or set aside and a new decision is substituted, before
the SSAT has made a determination, then the application for review will be
treated as an application for a review of the decision as varied or the new
decision as the case may be. A person may then either proceed with the
application for review or withdraw the application under section 1274 of the
Social Security Act 1991.
Clause 107 - Parties to SSAT
review
This clause would propose that the parties to a review by the
SSAT are the applicant, the Employment Secretary and any other person made a
party by order of the National Convenor of the SSAT following an application in
writing requesting to be made a party.
Clause 108 - SSAT’s
objectives
The SSAT, in carrying out its functions under the Act,
would be required to pursue the objective of providing a mechanism for review
that is fair, just, economical, informal and quick. These objectives are the
same requirements that the SSAT has under the Social Security Act 1991.
Subdivision C - Additional provisions relating to
review of decisions
Clause 109 - Application of Parts 6.3 and 6.4 of the Social
Security Act 1991
Parts 6.3 and 6.4 of the Social Security Act
1991 provide for review by the Social Security Appeals Tribunal and the
Administrative Appeals Tribunal of decisions under the Social Security Act
1991. This clause would provide that, subject to the changes listed below,
those Parts apply in relation to reviewable decisions and decisions on internal
review in a corresponding way to the way in which they apply to decisions of
officers under the Social Security Act 1991 and decisions on internal
review under that Act.
Subclause (2) would provide that section 1265 of
the Social Security Act 1991 is to be read as if subsection (7) had been
repealed.
Subclause (3) would provide that each reference in Parts 6.3
and 6.4 of the Social Security Act 1991 to the Social Security Secretary,
other than each reference in section 1269, is taken to be replaced by a
reference to the Employment Secretary.
Subclause (4) would provide that
each reference in subsections 1279(2) and (5) and 1283(4) of the Social
Security Act 1991 to that Act, is taken to be replaced by a reference
to:
• in the case of subsections 1279(2) and (5), that Act and this
Act; and
• in the case of subsection 1283(4), this
Act.
Subclause (5) would provide that references to the Department of
Social Security are taken to be replaced by references to the Department of
Employment, Education, Training and Youth Affairs.
Subclause (6) would
provide that the reference in subsection 1264(2) of the Social Security Act
1991 to section 1260 of that Act is taken to be a reference to section 107
of this Act.
Subclause (7) would provide that each reference to section
1246 of the Social Security Act 1991 is taken to be replaced by a
reference to section 108 of this Act.
Subclause (8) would provide that
each reference to section 1284 of the Social Security Act 1991 to an
officer is taken to be replaced by a reference to the Employment
Secretary.
PART 11 - RECOVERY OF OVERPAYMENTS ETC.
This Part would enable the recovery of amounts from entities engaged to
provide employment services.
Clause 110 - Recoverable
amounts
This clause would define recoverable amounts for the purposes
of this Part. They are:
• amounts paid, or purportedly paid, by
the Commonwealth under an employment services agreement;
• amounts
liable to be repaid to the Commonwealth because of a contravention of a
condition of an employment services agreement.
Clause 111 -
Recoverable amount is a debt
This clause would provide that a
recoverable amount is a debt due to the Commonwealth and is recoverable in a
court of competent jurisdiction.
Clause 112 - Recovery by
set-off
This clause would enable the Commonwealth to recover a
recoverable amount from an entity by deducting the debt from other amounts
payable to the entity from time to time (eg. other fees).
Clause 113 -
Commonwealth may collect money from a person who owes money to an
entity
Where an entity is liable to pay a recoverable amount to the
Commonwealth, this clause would provide for recovery of the debt by the
Commonwealth collecting money from a person who owes money to that
entity.
The clause would set out various procedures that must be followed
to recover the debt in this way.
PART 12 - INJUNCTIONS
Clause 114 - Injunctions granted on the application of Employment
Secretary
Subclause (1) would provide for the granting of restraining
injunctions by the Federal Court of Australia where an entity has, is, or
proposes to contravene any provisions of this Act, an employment services
agreement, the employment assistance document rules, or a duty of non-disclosure
in force under clause 56.
Subclause (2) would provide for the Federal
Court of Australia to grant an injunction requiring a person to do an act or
thing, where an entity will contravene this Act by refusing or failing to do an
act or thing.
Clause 115 - Interim injunctions
This clause
would provide for interim injunctions to be granted, but without requiring any
undertakings as to damages by the applicant for the injunction.
Clause
116 - Discharge etc. of injunctions
This clause would provide for the
court to discharge or vary an injunction granted under this
Part.
Clause 117 - Certain limits on granting injunctions not to
apply
This clause would prevent certain limits which normally apply
to the granting of restraining or performance injunctions from applying to
injunctions under this Part.
Clause 118 - Other powers of the court
unaffected
This clause would provide that the powers conferred on the
court in this Part do not affect any other powers of the Court.
PART 13 - DELEGATION OF EMPLOYMENT SECRETARY’S POWERS
Clause 119 - Delegation
This clause would provide for
the Employment Secretary to delegate the powers or functions of the Employment
Secretary under the Act to an officer of the Department or to a member of staff
of the Agency.
PART 14 - TREATMENT OF PARTNERSHIPS AND UNINCORPORATED ASSOCIATIONS
Clause 120 - Treatment of partnerships
This clause
would provide that the Act applies to a partnership as if the partnership were a
person but:
• obligations that would be imposed on the partnership
are imposed on each partner and may be discharged by any of the partners;
and
• any offence that would otherwise have been committed by the
partnership is taken to have been committed by each partner who:
aided,
abetted, counselled or procured the relevant act or omission; or
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).
Clause 121 - Treatment of unincorporated
associations
This clause would provide that the Act applies to an
unincorporated association as if the association were a person
but:
• obligations that would be imposed on the unincorporated
association are imposed on each member and may be discharged by any of the
members; and
• any offence that would otherwise have been committed by
the unincorporated association is taken to have been committed by each member
who:
aided, abetted, counselled or procured the relevant act or omission;
or
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).
PART 15 - PROSECUTIONS
Clause 122 - Prosecutions of corporations
This clause
would be a standard provision relating to the prosecution of corporations. It
would set out specific rules to assist in establishing the state of mind of the
corporation and to presume conduct of directors, employees and agents of the
corporation to be the corporation's conduct in certain
circumstances.
Clause 123 - Prosecutions of persons other than
corporations
This clause would relate to the prosecution of persons
other than corporations. It would set out specific rules to presume the conduct
and state of mind of employees and agents of a person to be the conduct and
state of the mind of that person in certain circumstances. This provision is
necessary because of the range of unincorporated entities which will be able to
become contracted employment placement enterprises under the
Act.
PART 16 - SERVICE OF DOCUMENTS
Clause 124 - Giving of documents to Employment
Secretary
This clause would provide that a document is taken to have
been given to the Employment Secretary if it is sent or delivered
to:
• an office of the Department; or
• an office of the
Agency; or
• a place approved for the purpose by the Employment
Secretary.
Clause 125 - Giving of documents to
partnerships
This clause would provide that, for the purpose of this
Act, a document given to a partner of a partnership in accordance with section
28A of the Acts Interpretation Act 1901 is to be taken as having been
given to the partnership.
Clause 126 - Giving of documents to
unincorporated associations
This clause would provide that for the
purposes of this Act, a document given to a member of the executive committee of
an unincorporated association in accordance with section 28A of the Acts
Interpretation Act 1901 is to be taken as having been given to the
unincorporated association.
PART 17 - REGULATIONS
Clause 127 - Regulations
This clause would provide
regulations to be made by the Governor-General for the purpose of this
Act.
Specific provision would be included for the regulations to provide
for write-off and waiver of debts, and for creating offences against the
regulations with a maximum penalty of 10 penalty units, currently
$1000.