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SOCIAL SECURITY AND VETERANS' AFFAIRS LEGISLATION AMENDMENT ACT 1995 No. 1, 1996 - SCHEDULE 2
SCHEDULE 2 Section 3
AMENDMENTS OF THE SOCIAL SECURITY ACT 1991 TO END TRANSFERS FROM
JOB SEARCH ALLOWANCE AND NEWSTART ALLOWANCE TO SICKNESS ALLOWANCE
PART 1-AMENDMENTS OF SICKNESS ALLOWANCE PROVISIONS 1. After paragraph
666(1)(c): Insert:
"(ca) either of the following applies:
(i) immediately before the incapacity occurred the person was in
employment (whether the person was self-employed, or was
employed by another person, on a full-time, part-time, casual
or temporary basis) and the Secretary is satisfied that, when
the incapacity ends, the employment will be again available to
the person (whether or not the same kind of work will be
available);
(ii) immediately before the incapacity occurred the person was in
full-time education and was receiving payments under the
AUSTUDY scheme or the ABSTUDY scheme and the Secretary is
satisfied that the person is committed to resuming full-time
study under that scheme when the incapacity ends;". 2.
Paragraph 666(1)(d): Omit, substitute:
"(d) the person satisfies the Secretary that the person has suffered, or is
likely to suffer, a loss of salary, wages or other income of a similar nature
because of the incapacity; or". 3. After paragraph 666(1A)(d): Insert:
"(da) immediately before the incapacity occurred the person was in employment
(whether the person was self-employed, or was employed by another person, on a
full-time, part-time, casual or temporary basis) and the Secretary is
satisfied that, when the incapacity ends, the employment will be again
available to the person (whether or not the same kind of work will be
available);". 4. Subparagraphs 666(1A)(e)(ii) and (iii): Omit. 5. Subsections
666(2) and (3): Omit, substitute:
"(2) In this section: work, in relation to a person, means work that the
person has contracted to perform under a contract of employment that:
(a) the person had immediately before the person becomes incapacitated;
and
(b) continues after the person becomes incapacitated.". 6. Subsections
666(7) and (8): Omit. 7. Subsection 666(9): After "obtaining" insert
"job search allowance, newstart allowance, youth training allowance,".
8. Subsection 666(10): Omit. 9. Paragraph 667(3)(a): Omit, substitute:
"(a) immediately before the rehabilitation period began the person was
receiving sickness allowance in respect of a period; and". 10. Paragraph
667(3)(d): Omit "benefit or". 11. Subsection 667(5): After "obtaining" insert
"job search allowance, newstart allowance, youth training allowance,". 12.
Paragraphs 677(1)(c) and (ca): Omit. 13. Paragraph 677(1)(m): Omit "721",
substitute "720". 14. Sections 682, 683 and 684: Repeal. 15. Subsection
686(1): Add at the end ", a job search allowance, a newstart allowance or a
youth training allowance". 16. Sections 690, 691 and 692: Repeal. 17.
Paragraph 694(1)(b): Omit. Note: The heading to subsection 694(1) is omitted.
18. Subsection 694(2): Omit. 19. Paragraph 695(2)(b): Omit "an unemployment
benefit,", substitute "a". 20. Paragraph 696(6)(b): Omit "an unemployment
benefit,", substitute "a". 21. Sections 711 and 712: Repeal. 22. Paragraph
728N(b): Omit "pension" (wherever occurring), substitute "allowance".
PART 2-AMENDMENTS OF JOB SEARCH ALLOWANCE PROVISIONS 23. After paragraph
513(1)(ba): Insert:
"Note: A person who, under Subdivision BAA, is not required to satisfy the
activity test is not to be required to enter into a Job Search Activity
Agreement (see subsection 525A(1A)).". 24. Subparagraph 513(1)(c)(iii): Before
"is" insert "subject to subsection (1B),". 25. Subsection 513(1) (Note 12):
Omit. 26. After paragraph 513(1A)(ca): Insert:
"Note: A person who, under Subdivision BAA, is not required to satisfy the
activity test is not to be required to enter into a Job Search Activity
Agreement (see subsection 525A(1A)).". 27. Subparagraph 513(1A)(f)(iv): Before
"is" insert "subject to subsection (1B),". 28. Subsection 513(1A) (Note 12):
Omit. 29. After subsection 513(1A): Insert:
"(1B) For the purposes of subparagraphs (1)(c)(iii) and (1A)(f)(iv), if:
(a) a person is, under Subdivision BAA, not required to satisfy the
activity test; and
(b) the person is temporarily absent from Australia; and
(c) the person is absent in order to seek medical treatment of a kind that
is not available in Australia; the person is taken to be in Australia
during:
(d) if the period is not more than 3 months-the whole of the period; or
(e) if the period is more than 3 months-the first 3 months of the
period.". 30. Section 514: Repeal. 31. Subsection 519(3): Omit
"subsection (4)", substitute "subsections (3AA) and (4)". 32. After
subsection 519(3): Insert:
"(3AA) Subject to subsection (4), if the person:
(a) is not a member of a couple; and
(b) is, under Subdivision BAA, not required to satisfy the activity test;
the liquid assets test waiting period in relation to the claim starts
on the day on which the person became incapacitated.". 33. Subsection
519(3A): Omit "subsection (4)", substitute "subsections (3B) and (4)".
34. After subsection 519(3A): Insert:
"(3B) Subject to subsection (4), if the person:
(a) is a member of a couple; and
(b) is, under Subdivision BAA, not required to satisfy the activity test;
the liquid assets test waiting period in relation to the claim starts
on the last occurring of the following days:
(c) the day on which the person became incapacitated for work;
(d) if, when the claim is made, the person's partner is unemployed-the day
on which the person's partner became unemployed;
(e) if, when the claim is made, the person's partner is incapacitated for
work-the day on which the person's partner became incapacitated for
work.". 35. Section 521: Add at the end:
"(3) A person is qualified for job search allowance in respect of a period
determined by the Secretary if:
(a) immediately before the start of the period, the person:
(i) was receiving job search allowance; and
(ii) was incapacitated for work; and
(iii) was, under Subdivision BAA, not required to satisfy the
activity test; and
(b) in the Secretary's opinion:
(i) the person will comply with the requirements of this Act during
the period; and
(ii) the person may reasonably be expected to be qualified for job
search allowance in respect of the period; and
(iii) job search allowance may reasonably be expected to be payable
to the person in respect of the period.". 36. After Subdivision
B of Division 1 of Part 2.11: Insert:
"Subdivision BAA-Exemption from activity test-people
temporarily incapacitated for work Interpretation
"525AB. A reference in this Subdivision to a person being exempt from the
activity test, or ceasing to be exempt from the activity test, under, or under
a provision of, this Subdivision is a reference to a person not being required
to satisfy the activity test, or becoming required to satisfy the activity
test, as the case may be, because of the operation of, or the operation of
that provision of, this Subdivision. Incapacitated person not required to
satisfy activity test
"525AC.(1) Subject to this Subdivision, a person is not required to satisfy
the activity test in respect of a period if:
(a) throughout the period the person is incapacitated for work because of
sickness or an accident; and
(b) the incapacity is caused wholly, or virtually wholly, by a medical
condition arising from the sickness or accident; and
(c) the incapacity is, or is likely to be, of a temporary nature; and
(d) if this Subdivision had not been enacted and paragraphs 513(1)(b),
(ba), (bb) and (bc) were disregarded, the person would qualify for job
search allowance; and
(e) the person has, whether before or after the commencement of this
section, given the Secretary a certificate of a medical practitioner,
in a form approved by the Secretary, stating:
(i) the medical practitioner's diagnosis; and
(ii) the medical practitioner's prognosis; and
(iii) that the person is incapacitated for work; and
(iv) the period for which the person is incapacitated for work; and
(f) the Secretary is satisfied that the incapacity has not been brought
about with a view to obtaining an exemption from the activity test.
"(2) In this section: work, in relation to a person, means work (whether
full-time, part-time, permanent or casual) that:
(a) is of a kind that the person could, in the Secretary's opinion, be
reasonably expected to do; and
(b) is for at least 8 hours per week at award wages or above. Person
cannot obtain exemption from activity test in respect of same medical
condition within 2 years
"525AD.(1) Subject to subsection (2), if a person who, because of an
incapacity resulting from a medical condition, was exempt, under section
525AC, from the activity test ceases to be so exempt because of the operation
of section 525AG or 525AH, section 525AC does not apply to the person again
during the period of 104 weeks after the person ceased to be exempt.
"(2) Subsection (1) does not apply to a person:
(a) if the person's incapacity for work is caused by a medical condition
that is different from, or significantly more serious than, the
medical condition referred to in subsection (1); or
(b) if:
(i) the medical condition referred to in subsection (1) is a
chronically relapsing condition; and
(ii) the person's incapacity for work is caused by a relapse of the
condition; or
(c) if:
(i) the person is undergoing a program of counselling, treatment or
therapy for drug or alcohol abuse; and
(ii) the person's participation in the program is not likely to
extend beyond 78 weeks; and
(iii) the program is approved by the Secretary in writing for the
purposes of this section; or
(d) if:
(i) the person's incapacity for work is caused by a medical
condition (whether the same as or different from the medical
condition referred to in subsection (1)); and
(ii) arrangements have been made for the person to undergo surgery
in respect of the condition; and
(iii) the surgery is expected to result in the person's incapacity
for work ceasing within 104 weeks from the date on which the
person became exempt from the activity test in respect of the
incapacity. Refusal to attend interview etc. may result in
person being required to satisfy activity test
"525AE.(1) A person ceases to be exempt, under this Subdivision, from the
activity test if:
(a) the Secretary is of the opinion that the person should:
(i) contact a particular officer of the Department; or
(ii) attend an interview at a particular place; or
(iii) complete a questionnaire; or
(iv) attend a medical, psychiatric or psychological examination; and
(b) the Secretary gives the person a written notice stating that the
person is required, within a period stated in the notice, to:
(i) contact the officer; or
(ii) attend the interview; or
(iii) complete the questionnaire; or
(iv) attend the examination; or
(v) if the person has undergone an examination-give the Secretary a report
on the examination in the approved form; and
(c) the Secretary is satisfied that it is reasonable for this section to
apply to the person; and
(d) the person does not take reasonable steps to comply with the
requirement.
"(2) A notice under paragraph (1)(b) must inform the person to whom it is
given of the effect of failure by the person to take reasonable steps to
comply with the requirement set out in the notice. Time limit for exemption
from requirement to satisfy activity test
"525AF.(1) A person ceases to be exempt, under this Subdivision, from the
activity test if the person's maximum exemption period ends.
"(2) Subject to this section, a person's maximum exemption period is:
(a) if the person has, whether before or after the commencement of this
section, given the Secretary a medical certificate for the purpose of
enabling the Secretary to decide whether the person was required to
satisfy the activity test-the lesser of the following periods:
(i) the period stated in the certificate as the period for which
the person would be incapacitated for work;
(ii) the period of 13 weeks that started or starts on the first day
of the period so stated in the certificate; or
(b) otherwise-the period of 4 weeks that started or starts on the day
determined by the Secretary to have been the day on which the person's
incapacity for work began.
"(3) If:
(a) a person is exempt, under this Subdivision, from the activity test;
and
(b) the person has, whether before or after the commencement of this
section, given the Secretary a certificate of a medical practitioner
that states the matters listed in paragraph 525AC(1)(e) and is in
accordance with the form approved under that paragraph; and
(c) the Secretary is satisfied that the person's incapacity for work will
continue after the end of the person's maximum exemption period; the
Secretary may extend the person's maximum exemption period by a period
that is not more than the lesser of the following periods:
(d) a period equal to the period stated in the certificate as the period
for which the person would be incapacitated for work; (e) 13 weeks.
"(4) If:
(a) a person is exempt, under this Subdivision, from the activity test;
and
(b) the person gives the Secretary written evidence (other than a
certificate referred to in paragraph (3)(b)) that the person's
incapacity for work will continue after the end of the person's
maximum exemption period; and
(c) the Secretary is satisfied that:
(i) the person's circumstances make it unreasonable to expect the
person to obtain a certificate referred to in paragraph (3)(b)
before the end of the maximum exemption period; and
(ii) the person's incapacity for work will continue after the end of
the person's maximum exemption period; the Secretary may extend
the person's maximum exemption period by not more than 4 weeks.
"(5) If:
(a) a person is exempt, under this Subdivision, from the activity test;
and
(b) the person has, whether before or after the commencement of this
section, given the Secretary a certificate referred to in paragraph
(3)(b) before the end of the person's maximum exemption period; and
(c) before the end of the person's maximum exemption period, the Secretary
does not satisfy himself or herself that the person's incapacity for
work will continue after the end of that period; and
(d) the sole or dominant cause of the Secretary failing so to satisfy
himself or herself is an act or omission of an officer of the
Department; the Secretary may extend the person's maximum exemption
period by not more than 4 weeks. Person ceases to be exempt from
activity test after one year
"525AG. Subject to section 525AH, a person ceases to be exempt, under section
525AC, from the activity test if the person has been so exempt in respect of
the immediately preceding period of 52 weeks. If Secretary makes
determination, person ceases to be exempt after 2 years
"525AH.(1) The Secretary may make a determination in writing that section
525AG does not apply to a person if the Secretary is satisfied that:
(a) the person's incapacity for work will end during the next 52 weeks; or
(b) the medical condition that wholly, or virtually wholly, causes the
person's incapacity for work at the end of the period of 52 weeks
referred to in section 525AG is different from, or significantly more
serious than, the medical condition because of which the person was
exempt, under section 525AC, from the activity test at the beginning
of that period of 52 weeks; or
(c) the person's incapacity is caused by a chronically relapsing medical
condition; or
(d) all the following circumstances apply:
(i) the person is undergoing a program of counselling, treatment or
therapy for drug or alcohol abuse; (ii) the person's
participation in the program is not likely to extend beyond 78
weeks; (iii) the program is approved by the Secretary in
writing for the purposes of this section.
"(2) If the Secretary makes a determination under subsection (1) in relation
to a person, section 525AG does not apply to the person but the person ceases
to be exempt, under section 525AC, from the activity test if the person has
been so exempt in respect of the immediately preceding period of 104 weeks.
"(3) For the purposes of subsection (2), a person who has not been exempt,
under section 525AC, from the activity test continuously in respect of the
immediately preceding period of 104 weeks is taken to have been exempt, under
that section, from the test in respect of that period if the period, or each
period, during those 104 weeks in respect of which the person was not exempt
was less than 6 weeks.". 37. Subsection 525A(1): Omit "If", substitute
"Subject to subsection (1A), if". 38. After subsection 525A(1): Insert:
"(1A) A person who, under Subdivision BAA, is not required to satisfy the
activity test is not to be required to enter into a Job Search Activity
Agreement.". 39. After paragraph 526(1)(ha): Insert:
"(hb) section 534B applies to the person and the person fails to comply with a
requirement in a notice given to the person under that section; or". 40. After
paragraph 532(4)(b): Insert:
"(ba) the scheme to provide an allowance known as the Adult Migrant Education
Program Living Allowance; or
(bb) the scheme to provide an allowance known as the English as a Second
Language Allowance to the extent that the scheme applies to full-time
students; or". 41. After subsection 533(1): Insert:
"(1A) Subject to the following provisions of this section, if a person is,
under Subdivision BAA, not required to satisfy the activity test, the person's
provisional commencement day is the day on which the person became
incapacitated for work.". 42. Subsection 533(5): Omit "If", substitute
"Subject to subsections (5A) and (5B), if". 43. After subsection 533(5):
Insert:
"(5A) Subject to subsection (5B), if:
(a) a person is a transferee to job search allowance; and
(b) the person is, under Subdivision BAA, not required to satisfy the
activity test; and
(c) the person claims the job search allowance within 4 weeks after the
person's transfer day; the person's provisional commencement day is
the person's transfer day.
"(5B) If:
(a) a person is, under Subdivision BAA, not required to satisfy the
activity test; and
(b) the person is subject to an education leaver's waiting period (see
subsection 540(1)); and
(c) the person became incapacitated for work while undertaking the course
of education; the person's provisional commencement day is the last
day on which the person was undertaking the course.". 44. Section 534:
Add at the end (before the Notes):
"(2) This section does not apply to a person who is, under Subdivision BAA,
not required to satisfy the activity test.". Note: The heading to section 534
is replaced by "Commencement of job search allowance- person subject to
activity test". 45. After section 534: Insert in Subdivision C of Division 1
of Part 2.11: Commencement of job search allowance-person not subject to
activity test
"534A.(1) If a person who is, under Subdivision BAA, not required to satisfy
the activity test is qualified for job search allowance, the allowance is not
payable to the person before the day worked out in accordance with the
following provisions of this section.
"(2) If the person:
(a) claims the allowance within 5 weeks after the day on which the person
becomes incapacitated for work; and
(b) the person is not subject to a waiting period; the allowance is not
payable to the person before the person's provisional commencement
day. Note 1: A waiting period is:
(a) an unused annual leave waiting period (see sections 535 to 537); or
(b) an ordinary waiting period (see sections 538 and 539); or
(c) an education leavers waiting period (see sections 540 to 541A); or
(d) a newly arrived resident's waiting period (see sections 541B and
541C). Note 2: For provisional commencement day see section 533.
"(3) If the person:
(a) claims the allowance within 5 weeks after the day on which the person
becomes incapacitated for work; and
(b) the person is subject to a waiting period; the allowance is not
payable to the person before the first day after the end of the
waiting period. Note 1: If the person:
(a) is subject to an unused annual leave waiting period; and
(b) is subject to an ordinary waiting period; the ordinary waiting period
will follow the unused annual leave waiting period (see subsection
539(2)). Note 2: If the person is subject to an education leavers
waiting period and another waiting period, the education leavers
waiting period runs concurrently with the other waiting period and the
job search allowance will not be payable until the longest waiting
period has ended. Note 3: If the person is subject to a newly arrived
resident's waiting period and another waiting period, the newly
arrived resident's waiting period runs concurrently with the other
waiting period and the job search allowance will not be payable until
the longest waiting period has ended.
"(4) If:
(a) the person claims the allowance more than 5 weeks after the day on
which the person becomes incapacitated for work; and
(b) the Secretary is satisfied that the incapacity is the sole or dominant
cause for the failure to claim the allowance within 5 weeks after that
day; the allowance is not payable to the person before the day
determined by the Secretary.
"(5) The day determined under subsection (4):
(a) must not be more than 4 weeks before the day on which the person
lodges the claim for the allowance; and
(b) if the person is subject to a waiting period-must not be earlier than
the first day after the end of the waiting period. Note 1: If the
person:
(a) is subject to an unused annual leave waiting period; and
(b) is subject to an ordinary waiting period; the ordinary waiting period
will follow the unused annual leave waiting period (see subsection
539(2)). Note 2: If the person is subject to an education leavers
waiting period and another waiting period, the education leavers
waiting period runs concurrently with the other waiting period and the
job search allowance will not be payable until the longest waiting
period has ended. Note 3: If the person is subject to a newly arrived
resident's waiting period and another waiting period, the newly
arrived resident's waiting period runs concurrently with the other
waiting period and the job search allowance will not be payable until
the longest waiting period has ended.
"(6) If:
(a) the person claims the allowance more than 5 weeks after the day on
which the person becomes incapacitated for work; and
(b) the Secretary is not satisfied that the incapacity is the sole or
dominant cause of the failure to claim the allowance within 5 weeks
after that day; the allowance is not payable to the person before the
day on which the claim is lodged. Refusal to attend interview etc.
"534B.(1) A job search allowance is not payable to a person who is not
required to satisfy the activity test if:
(a) the person is receiving a job search allowance; and
(b) the Secretary is of the opinion that the person should:
(i) contact a particular officer of the Department; or
(ii) attend an interview at a particular place; or
(iii) complete a questionnaire; or
(iv) attend a medical, psychiatric or psychological examination; and
(c) the Secretary gives the person a written notice stating that the
person is required, within a period stated in the notice, to:
(i) contact the officer; or
(ii) attend the interview; or
(iii) complete the questionnaire; or
(iv) attend the examination; or
(v) if the person has undergone an examination-give the Secretary a report
on the examination in the approved form; and
(d) the Secretary is satisfied that it is reasonable for this section to
apply to the person; and
(e) the person does not take reasonable steps to comply with the
requirement.
"(2) A notice under paragraph (1)(c) must inform the person to whom it is
given of the effect of failure by the person to take reasonable steps to
comply with the requirement set out in the notice.". 46. Paragraph 546C(1)(a):
After "person" insert "(other than a person who is not required to satisfy the
activity test).".
PART 3-AMENDMENTS OF NEWSTART ALLOWANCE PROVISIONS 47. Paragraph 593(1)(b):
Omit, substitute:
"(b) throughout the period, or for each period within the period, the person
either:
(i) satisfies the activity test; or
(ii) is not required to satisfy the activity test; and". 48.
Paragraph 593(1)(c): Before "at all times" insert "if
subsection 604(1) applies to the person,". 49. Paragraph
593(1)(d): Before "at all times" insert "if subsection 604(1)
applies to the person,". 50. Paragraph 593(1)(e): Omit "when",
substitute "if". 51. Subparagraph 593(1)(g)(iii): Before "is"
insert "subject to subsection (1A),". 52. Subsection 593(1)
(Note 14): Omit. 53. After subsection 593(1): Insert:
"(1A) For the purposes of subparagraph (1)(g)(iii), if:
(a) a person is, under Subdivision BA, not required to satisfy the
activity test; and
(b) the person is temporarily absent from Australia; and
(c) the person is absent in order to seek medical treatment of a kind that
is not available in Australia; the person is taken to be in Australia
during:
(d) if the period is not more than 3 months-the whole of the period; or
(e) if the period is more than 3 months-the first 3 months of the
period.". 54. Subsection 593(2) (Note 11): Omit. 55. Section 594:
Repeal. 56. Subsection 598(3): Omit "subsection (4)", substitute
"subsections (3AA) and (4)". 57. After subsection 598(3): Insert:
"(3AA) Subject to subsection (4), if the person:
(a) is not a member of a couple; and
(b) is, under Subdivision BA, not required to satisfy the activity test;
the liquid assets test waiting period in relation to the claim starts
on the day on which the person became incapacitated.". 58. Subsection
598(3A): Omit "subsection (4)", substitute "subsections (3B) and (4)".
59. After subsection 598(3A): Insert:
"(3B) Subject to subsection (4), if the person:
(a) is a member of a couple; and
(b) is, under Subdivision BA, not required to satisfy the activity test;
the liquid assets test waiting period in relation to the claim starts
on the last occurring of the following days:
(c) the day on which the person became incapacitated for work;
(d) if, when the claim is made, the person's partner is unemployed-the day
on which the person's partner became unemployed;
(e) if, when the claim is made, the person's partner is incapacitated for
work-the day on which the person's partner became incapacitated for
work.". 60. Section 600: Add at the end:
"(3) A person is qualified for newstart allowance in respect of a period
determined by the Secretary if:
(a) immediately before the start of the period, the person:
(i) was receiving newstart allowance; and
(ii) was incapacitated for work; and
(iii) was, under Subdivision BA, not required to satisfy the activity
test; and
(b) in the Secretary's opinion:
(i) the person will comply with the requirements of this Act during
the period; and
(ii) the person may reasonably be expected to be qualified for
newstart allowance in respect of the period; and
(iii) newstart allowance may reasonably be expected to be payable to
the person in respect of the period.". 61. After Subdivision B
of Division 1 of Part 2.12: Insert:
"Subdivision BA-Exemption from activity test-people
temporarily incapacitated for work Interpretation
"603B. A reference in this Subdivision to a person being exempt from the
activity test, or ceasing to be exempt from the activity test, under, or under
a provision of, this Subdivision is a reference to a person not being required
to satisfy the activity test, or becoming required to satisfy the activity
test, as the case may be, because of the operation of, or the operation of
that provision of, this Subdivision. Incapacitated person not required to
satisfy activity test
"603C.(1) Subject to this Subdivision, a person is not required to satisfy the
activity test in respect of a period if:
(a) throughout the period the person is incapacitated for work because of
sickness or an accident; and
(b) the incapacity is caused wholly, or virtually wholly, by a medical
condition arising from the sickness or accident; and
(c) the incapacity is, or is likely to be, of a temporary nature; and
(d) if this Subdivision had not been enacted and paragraphs 593(1)(b),
(c), (d) and (e) were disregarded, the person would qualify for
newstart allowance; and
(e) the person has, whether before or after the commencement of this
section, given the Secretary a certificate of a medical practitioner,
in a form approved by the Secretary, stating:
(i) the medical practitioner's diagnosis; and
(ii) the medical practitioner's prognosis; and
(iii) that the person is incapacitated for work; and
(iv) the period for which the person is incapacitated for work; and
(f) the Secretary is satisfied that the incapacity has not been brought
about with a view to obtaining an exemption from the activity test.
"(2) In this section: work, in relation to a person, means work (whether
full-time, part-time, permanent or casual) that:
(a) is of a kind that the person could, in the Secretary's opinion, be
reasonably expected to do; and
(b) is for at least 8 hours per week at award wages or above. Person
cannot obtain exemption from activity test in respect of same medical
condition within 2 years
"603D.(1) Subject to subsection (2), if a person who, because of an incapacity
resulting from a medical condition, was exempt, under section 603C, from the
activity test ceases to be so exempt because of the operation of section 603G
or 603H, section 603C does not apply to the person again during the period of
104 weeks after the person ceased to be exempt.
"(2) Subsection (1) does not apply to a person:
(a) if the person's incapacity for work is caused by a medical condition
that is different from, or significantly more serious than, the
medical condition referred to in subsection (1); or
(b) if:
(i) the medical condition referred to in subsection (1) is a
chronically relapsing condition; and
(ii) the person's incapacity for work is caused by a relapse of the
condition; or
(c) if:
(i) the person is undergoing a program of counselling, treatment or
therapy for drug or alcohol abuse; and
(ii) the person's participation in the program is not likely to
extend beyond 78 weeks; and
(iii) the program is approved by the Secretary in writing for the
purposes of this section; or
(d) if:
(i) the person's incapacity for work is caused by a medical
condition (whether the same as or different from the medical
condition referred to in subsection (1)); and
(ii) arrangements have been made for the person to undergo surgery
in respect of the condition; and
(iii) the surgery is expected to result in the person's incapacity
for work ceasing within 104 weeks from the date on which the
person became exempt from the activity test in respect of the
incapacity. Refusal to attend interview etc. may result in
person being required to satisfy activity test
"603E.(1) A person ceases to be exempt, under this Subdivision, from the
activity test if:
(a) the Secretary is of the opinion that the person should:
(i) contact a particular officer of the Department; or
(ii) attend an interview at a particular place; or
(iii) complete a questionnaire; or
(iv) attend a medical, psychiatric or psychological examination; and
(b) the Secretary gives the person a written notice stating that the
person is required, within a period stated in the notice, to:
(i) contact the officer; or
(ii) attend the interview; or
(iii) complete the questionnaire; or
(iv) attend the examination; or
(v) if the person has undergone an examination-give the Secretary a report
on the examination in the approved form; and
(c) the Secretary is satisfied that it is reasonable for this section to
apply to the person; and
(d) the person does not take reasonable steps to comply with the
requirement.
"(2) A notice under paragraph (1)(b) must inform the person to whom it is
given of the effect of failure by the person to take reasonable steps to
comply with the requirement set out in the notice. Time limit for exemption
from requirement to satisfy activity test
"603F.(1) A person ceases to be exempt, under this Subdivision, from the
activity test if the person's maximum exemption period ends.
"(2) Subject to this section, a person's maximum exemption period is:
(a) if the person has, whether before or after the commencement of this
section, given the Secretary a medical certificate for the purpose of
enabling the Secretary to decide whether the person was required to
satisfy the activity test-the lesser of the following periods:
(i) the period stated in the certificate as the period for which
the person would be incapacitated for work; (ii) the period of
13 weeks that started or starts on the first day of the period
so stated in the certificate; or
(b) otherwise-the period of 4 weeks that started or starts on the day
determined by the Secretary to have been the day on which the person's
incapacity for work began.
"(3) If, immediately before the day on which a person became qualified for
newstart allowance, the person was qualified for job search allowance and was,
under section 525AC, not required to satisfy the activity test, the person's
maximum exemption period is the period that, immediately before that day, was
the person's maximum exemption period under section 525AF.
"(4) If:
(a) a person is exempt, under this Subdivision, from the activity test;
and
(b) the person has, whether before or after the commencement of this
section, given the Secretary a certificate of a medical practitioner
that states the matters listed in paragraph 603C(1)(e) and is in
accordance with the form approved under that paragraph; and
(c) the Secretary is satisfied that the person's incapacity for work will
continue after the end of the person's maximum exemption period; the
Secretary may extend the person's maximum exemption period by a period
that is not more than the lesser of the following periods:
(d) a period equal to the period stated in the certificate as the period
for which the person would be incapacitated for work; (e) 13 weeks.
"(5) If:
(a) a person is exempt, under this Subdivision, from the activity test;
and
(b) the person gives the Secretary written evidence (other than a
certificate referred to in paragraph (4)(b)) that the person's
incapacity for work will continue after the end of the person's
maximum exemption period; and
(c) the Secretary is satisfied that:
(i) the person's circumstances make it unreasonable to expect the
person to obtain a certificate referred to in paragraph (4)(b)
before the end of the maximum exemption period; and
(ii) the person's incapacity for work will continue after the end of
the person's maximum exemption period; the Secretary may extend
the person's maximum exemption period by not more than 4 weeks.
"(6) If:
(a) a person is exempt, under this Subdivision, from the activity test;
and
(b) the person has, whether before or after the commencement of this
section, given the Secretary a certificate referred to in paragraph
(4)(b) before the end of the person's maximum exemption period; and
(c) before the end of the person's maximum exemption period, the Secretary
does not satisfy himself or herself that the person's incapacity for
work will continue after the end of that period; and
(d) the sole or dominant cause of the Secretary failing so to satisfy
himself or herself is an act or omission of an officer of the
Department; the Secretary may extend the person's maximum exemption
period by not more than 4 weeks. Person ceases to be exempt from
activity test after one year
"603G. Subject to section 603H, a person ceases to be exempt, under section
603C, from the activity test if the person has been so exempt in respect of
the immediately preceding period of 52 weeks. If Secretary makes
determination, person ceases to be exempt after 2 years
"603H.(1) The Secretary may make a determination in writing that section 603G
does not apply to a person if the Secretary is satisfied that:
(a) the person's incapacity for work will end during the next 52 weeks; or
(b) the medical condition that wholly, or virtually wholly, causes the
person's incapacity for work at the end of the period of 52 weeks
referred to in section 603G is different from, or significantly more
serious than, the medical condition because of which the person was
exempt, under section 603C, from the activity test at the beginning of
that period of 52 weeks; or
(c) the person's incapacity is caused by a chronically relapsing medical
condition; or
(d) all the following circumstances apply:
(i) the person is undergoing a program of counselling, treatment or
therapy for drug or alcohol abuse; (ii) the person's
participation in the program is not likely to extend beyond 78
weeks; (iii) the program is approved by the Secretary in
writing for the purposes of this section.
"(2) If the Secretary makes a determination under subsection (1) in relation
to a person, section 603G does not apply to the person but the person ceases
to be exempt, under section 603C, from the activity test if the person has
been so exempt in respect of the immediately preceding period of 104 weeks.
"(3) For the purposes of subsection (2), a person who has not been exempt,
under section 603C, from the activity test continuously in respect of the
immediately preceding period of 104 weeks is taken to have been exempt, under
that section, from the test in respect of that period if the period, or each
period, during those 104 weeks in respect of which the person:
(a) was not exempt under section 525AC or 603C from an activity test; and
(b) was not in receipt of sickness allowance; was less than 6 weeks.". 62.
Subsection 604(1): Omit "For", substitute "Subject to this section,
for". 63. After subsection 604(1): Insert:
"(1A) Subsection (1) does not apply to a person who, under Subdivision BA, is
not required to satisfy the activity test.". 64. Subsection 605(1): Omit "If a
person", substitute "Subject to this section, if a person". 65. Subsection
605(2): Omit "The Secretary", substitute "Subject to this section, the
Secretary". 66. After subsection 605(2): Insert:
"(2A) Subsections (1) and (2) do not apply to a person who, under Subdivision
BA, is not required to satisfy the activity test.". 67. After paragraph
608(1)(ha): Insert:
"(hb) section 616B applies to the person and the person fails to comply with a
requirement in a notice given to the person under that section; or". 68. After
paragraph 614(4)(b): Insert:
"(ba) the scheme to provide an allowance known as the Adult Migrant Education
Program Living Allowance; or
(bb) the scheme to provide an allowance known as the English as a Second
Language Allowance to the extent that the scheme applies to full-time
students; or". 69. After subsection 615(1): Insert:
"(1A) Subject to the following provisions of this section, if a person is,
under Subdivision BA, not required to satisfy the activity test, the person's
provisional commencement day is the day on which the person became
incapacitated for work.". 70. Subsection 615(5): Omit "If", substitute
"Subject to subsections (6) and (7), if". 71. Section 615: Add at the end:
"(6) Subject to subsection (7), if:
(a) a person is a transferee to newstart allowance; and
(b) the person is, under Subdivision BA, not required to satisfy the
activity test; and
(c) the person claims the newstart allowance within 4 weeks after the
person's transfer day; the person's provisional commencement day is
the person's transfer day.
"(7) If:
(a) a person is, under Subdivision BA, not required to satisfy the
activity test; and
(b) the person is subject to an education leaver's waiting period (see
subsection 622(1)); and
(c) the person became incapacitated for work while undertaking the course
of education; the person's provisional commencement day is the last
day on which the person was undertaking the course.". 72. Section 616:
Add at the end (before the Notes):
"(2) This section does not apply to a person who is, under Subdivision BA, not
required to satisfy the activity test.". Note: The heading to section 616 is
replaced by "Commencement of newstart allowance-person subject to activity
test". 73. After section 616: Insert in Subdivision D of Division 1 of Part
2.12: Commencement of newstart allowance-person not subject to activity test
"616A.(1) If a person who is, under Subdivision BA, not required to satisfy
the activity test is qualified for newstart allowance, the allowance is not
payable to the person before the day worked out in accordance with the
following provisions of this section.
"(2) If the person:
(a) claims the allowance within 5 weeks after the day on which the person
becomes incapacitated for work; and
(b) the person is not subject to a waiting period; the allowance is not
payable to the person before the person's provisional commencement
day. Note 1: A waiting period is:
(a) an unused annual leave waiting period (see sections 617 to 619); or
(b) an ordinary waiting period (see sections 620 and 621); or
(c) an education leavers waiting period (see sections 622 and 623); or
(d) a newly arrived resident's waiting period (see sections 623A and
623B). Note 2: For provisional commencement day see section 615.
"(3) If the person:
(a) claims the allowance within 5 weeks after the day on which the person
becomes incapacitated for work; and
(b) the person is subject to a waiting period; the allowance is not
payable to the person before the first day after the end of the
waiting period. Note 1: If the person:
(a) is subject to an unused annual leave waiting period; and
(b) is subject to an ordinary waiting period; the ordinary waiting period
will follow the unused annual leave waiting period (see subsection
621(2)). Note 2: If the person is subject to an education leavers
waiting period and another waiting period, the education leavers
waiting period runs concurrently with the other waiting period and the
newstart allowance will not be payable until the longest waiting
period has ended. Note 3: If the person is subject to a newly arrived
resident's waiting period and another waiting period, the newly
arrived resident's waiting period runs concurrently with the other
waiting period and the newstart allowance will not be payable until
the longest waiting period has ended.
"(4) If:
(a) the person claims the allowance more than 5 weeks after the day on
which the person becomes incapacitated for work; and
(b) the Secretary is satisfied that the incapacity is the sole or dominant
cause for the failure to claim the allowance within 5 weeks after that
day; the allowance is not payable to the person before the day
determined by the Secretary.
"(5) The day determined under subsection (4):
(a) must not be more than 4 weeks before the day on which the person
lodges the claim for the allowance; and
(b) if the person is subject to a waiting period-must not be earlier than
the first day after the end of the waiting period. Note 1: If the
person:
(a) is subject to an unused annual leave waiting period; and
(b) is subject to an ordinary waiting period; the ordinary waiting period
will follow the unused annual leave waiting period (see subsection
621(2)). Note 2: If the person is subject to an education leavers
waiting period and another waiting period, the education leavers
waiting period runs concurrently with the other waiting period and the
newstart allowance will not be payable until the longest waiting
period has ended. Note 3: If the person is subject to a newly arrived
resident's waiting period and another waiting period, the newly
arrived resident's waiting period runs concurrently with the other
waiting period and the newstart allowance will not be payable until
the longest waiting period has ended.
"(6) If:
(a) the person claims the allowance more than 5 weeks after the day on
which the person becomes incapacitated for work; and
(b) the Secretary is not satisfied that the incapacity is the sole or
dominant cause of the failure to claim the allowance within 5 weeks
after that day; the allowance is not payable to the person before the
day on which the claim is lodged. Refusal to attend interview etc.
"616B.(1) A newstart allowance is not payable to a person who is not required
to satisfy the activity test if:
(a) the person is receiving a newstart allowance; and
(b) the Secretary is of the opinion that the person should:
(i) contact a particular officer of the Department; or
(ii) attend an interview at a particular place; or
(iii) complete a questionnaire; or
(iv) attend a medical, psychiatric or psychological examination; and
(c) the Secretary gives the person a written notice stating that the
person is required, within a period stated in the notice, to:
(i) contact the officer; or
(ii) attend the interview; or
(iii) complete the questionnaire; or
(iv) attend the examination; or
(v) if the person has undergone an examination-give the Secretary a
report on the examination in the approved form; and
(d) the Secretary is satisfied that it is reasonable for this section to
apply to the person; and
(e) the person does not take reasonable steps to comply with the
requirement.
"(2) A notice under paragraph (1)(c) must inform the person to whom it is
given of the effect of failure by the person to take reasonable steps to
comply with the requirement set out in the notice.". 74. Paragraph 630C(1)(a):
After "person" insert "(other than a person who is not required to satisfy the
activity test).".
PART 4-AMENDMENTS OF OTHER PROVISIONS 75. Subsection 94(6): Add at the end:
"or with a view to obtaining an exemption, because of the person's incapacity,
from the requirement to satisfy the activity test for the purposes of job
search allowance, newstart allowance or youth training allowance". 76.
Subsection 95(2): Add at the end:
"or with a view to obtaining an exemption, because of the person's blindness,
from the requirement to satisfy the activity test for the purposes of job
search allowance, newstart allowance or youth training allowance". 77.
Subsection 409(7): Add at the end:
"or with a view to obtaining an exemption, because of the person's incapacity,
from the requirement to satisfy the activity test for the purposes of job
search allowance, newstart allowance or youth training allowance". 78.
Subsection 410(2): Add at the end:
"or with a view to obtaining an exemption, because of the person's blindness,
from the requirement to satisfy the activity test for the purposes of job
search allowance, newstart allowance or youth training allowance". 79.
Subparagraph 729(2)(d)(i): Omit "subsection 546C(4) or 630C(4)", substitute
"section 534B, subsection 546C(4), section 616B or subsection 630C(4);". 80.
Point 1067-D2 (excluding the Note): Omit, substitute: Incapacity for work
"1067-D2. This point applies to a person if:
(a) the person is incapacitated for work; and
(b) if the person is receiving job search allowance-the person is, under
Subdivision BAA of Division 1 of Part 2.11, exempt from the activity
test.". 81. Point 1067-F14: After "allowance" insert "or sickness
allowance". 82. Point 1067-H4: Omit, substitute: Friendly society
amounts
"1067-H4. The ordinary income of a person:
(a) to whom, or to whose partner, sickness allowance is payable; or
(b) to whom, or to whose partner, job search allowance is payable and who,
or whose partner, under Subdivision BAA of Division 1 of Part 2.11, is
not required to satisfy the activity test; is not to include any
amount received by the person or partner from an approved friendly
society in respect of the incapacity because of which the person or
partner is qualified for the sickness allowance or is not required to
satisfy the activity test, as the case may be.". 83. Point 1068-D2:
Omit, substitute: Incapacity for work-job search allowance and
newstart allowance
"1068-D2. This point applies to a person if:
(a) the person has reached the age of 18 years; and (b) the person is
incapacitated for work; and
(c) if the person is receiving job search allowance-the person is, under
Subdivision BAA of Division 1 of Part 2.11, exempt from the activity
test; and
(d) if the person is receiving newstart allowance-the person is, under
Subdivision BA of Division 1 of Part 2.12, exempt from the activity
test.". 84. Point 1068-F16: Omit, substitute: Fortnightly rent
"1068-F16. Fortnightly rent means the fortnightly rent paid or payable by the
person whose widow allowance, job search allowance, newstart allowance,
sickness allowance or partner allowance is being calculated.". 85. Point
1068-G4: Omit, substitute: Friendly society amounts
"1068-G4. The ordinary income of a person:
(a) to whom, or to whose partner, sickness allowance is payable; or
(b) to whom, or to whose partner, job search allowance is payable and who,
or whose partner, under Subdivision BAA of Division 1 of Part 2.11, is
not required to satisfy the activity test; or
(c) to whom, or to whose partner, newstart allowance is payable and who,
or whose partner, under Subdivision BA of Division 1 of Part 2.12, is
not required to satisfy the activity test; is not to include any
amount received by the person or partner from an approved friendly
society in respect of the incapacity because of which the person or
partner is qualified for the sickness allowance or is not required to
satisfy the activity test, as the case may be.". 86. Subsection
1163(5): Omit "sickness allowance and partner allowance", substitute
"an allowance excluded by subsection (5A)". 87. After subsection
1163(5): Insert:
"(5A) The following allowances are excluded from the operation of subsection
(5):
(a) sickness allowance; (b) partner allowance;
(c) job search allowance if, under Subdivision BAA of Division 1 of Part
2.11, the recipient of the allowance is not required to satisfy the
activity test;
(d) newstart allowance if, under Subdivision BA of Division 1 of Part
2.12, the recipient of the allowance is not required to satisfy the
activity test.". 88. Section 1211: After Note 1 insert:
"Note 1A: Subsection 513(1B) provides that a person is taken to be in
Australia for the purposes of subsections 513(1) and (1A) (qualification for
job search allowance) if the person is, because of incapacity, not required to
satisfy the job search activity test and is temporarily absent from Australia
for a period of 3 months or less. Note 1B: Subsection 593(1A) provides that a
person is taken to be in Australia for the purposes of subsection 593(1)
(qualification for newstart allowance) if the person is, because of
incapacity, not required to satisfy the newstart activity test and is
temporarily absent from Australia for a period of 3 months or less.". 89.
Schedule 1A: Add at the end: Application of legislative changes made to end
transfers from job search allowance or newstart allowance to sickness
allowance
"84.(1) The amendments made by Part 1 of Schedule 2 to the Social Security
and Veterans' Affairs Legislation Amendment Act 1995 apply to claims for
sickness allowance lodged on or after 20 March 1996.
"(2) The amendments made by Part 2 of Schedule 2 to the Social Security and
Veterans' Affairs Legislation Amendment Act 1995 apply in respect of job
search allowance for any fortnight starting on or after 20 March 1996.
"(3) The amendments made by Part 3 of Schedule 2 to the Social Security and
Veterans' Affairs Legislation Amendment Act 1995 apply in respect of newstart
allowance for any fortnight starting on or after 20 March 1996.".
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