Commonwealth: Family and Community Services Legislation Amendment (Special Benefit Activity Test) Act 2002 (Cth)

Family and Community Services Legislation Amendment (Special Benefit Activity Test) Act 2002 Act No. 147 of 2002 as amended This compilation was prepared on 12 December 2003 [This Act was amended by Act No. 122 of 2003] Amendment from Act No. 122 of 2003 [Schedule 7 (item 3) amended subsection 2(1) (table item 3) Schedule 7 (item 3) commenced on 19 September 2003] Prepared by the Office of Legislative Drafting, Attorney‑General's Department, Canberra Contents 1 Short title................................... 2 Commencement............................... 3 Schedule(s).................................. Schedule 1—Amendments of Family and Community Services legislation Social Security Act 1991 Social Security (Administration) Act 1999 Schedule 2—Contingent amendments of Family and Community Services legislation Social Security Act 1991 Schedule 3—Technical amendments of other legislation A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 2) 1999 Family and Community Services Legislation Amendment (1999 Budget and Other Measures) Act 1999 An Act to provide for activity testing of holders of certain visas claiming special benefit under social security law comparable with the activity testing of Australian residents of workforce age, and for other purposes [Assented to 19 December 2002] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Family and Community Services Legislation Amendment (Special Benefit Activity Test) Act 2002. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent 19 December 2002 2. Schedule 1 1 January 2003 1 January 2003 3. Schedule 2 Immediately after the commencement of Schedule 5 to the Family and Community Services Legislation Amendment (Australians Working Together and other 2001 Budget Measures) Act 2003 20 September 2003 4. Schedule 3, item 1 8 July 1999 8 July 1999 5. Schedule 3, item 2 6 July 2000 6 July 2000 6. Schedule 3, item 3 10 December 1999 10 December 1999 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments of Family and Community Services legislation Social Security Act 1991 1 Paragraph 16A(3)(b) Omit "or youth allowance", substitute ", youth allowance or special benefit". 2 Paragraph 16A(4)(b) Omit "or youth allowance", substitute ", youth allowance or special benefit". 3 Subsection 19C(1) (notes 1 to 4) Repeal the notes. 4 Subsection 19C(2) After "austudy payment", insert ", special benefit". 5 Subsection 19C(2) After "rate of the payment", insert ", benefit". 6 Subsection 19C(3) After "austudy payment", insert ", special benefit". 7 Subsection 19C(3) After "rate of the payment", insert ", benefit". 8 Paragraph 19C(8)(b) After "allowance", insert "and, if the person has turned 21, in relation to special benefit". 9 Paragraph 19C(8)(c) After "allowance", insert "and, if the person has not turned 21, in relation to special benefit". 10 Subsection 23(1) (paragraph (a) of the definition of activity test breach) Repeal the paragraph, substitute: (a) section 550A or 576A, subsection 624(1), 625(1) or 626(1), section 628 or 629, subsection 630(1), 630AA(1), 740(1), 741(1) or 742(1), section 743 or 744 or subsection 745(1) or 745A(1); 11 Subsection 23(1) (paragraph (a) of the definition of activity test breach rate reduction period) Repeal the paragraph, substitute: (a) a period that applies under section 557, 582, 644AA or 748; or 12 Subsection 23(1) (paragraph (a) of the definition of activity test non‑payment period) Repeal the paragraph, substitute: (a) a period worked out under section 550, 576, 630A or 745B; or 13 Subsection 23(1) (definition of approved program of work supplement) Repeal the definition, substitute: approved program of work supplement means: (a) an amount payable under section 556A to a person receiving youth allowance; or (b) an amount payable under section 644AAA to a person receiving newstart allowance; or (c) an amount payable under section 747 to a person receiving special benefit. 14 Subsection 23(1) Insert: nominated visa holder means a person to whom, in accordance with section 731, Subdivision AA of Division 1 of Part 2.15 applies. 15 Paragraph 542H(3)(a) After "subsection (1)", insert "or under subsection 731E(1)". 16 At the end of section 544 Add: (3) For the purposes of this Part, if: (a) a person starts to receive youth allowance on a particular day; and (b) immediately before that day the person was a party to a Special Benefit Activity Agreement; and (c) the period covered by the agreement ends after that day; the agreement has effect on or after that day as if it were a Youth Allowance Activity Agreement. 17 After subparagraph 603A(3)(a)(ii) Insert: (iia) subsection 731E(1) of this Act; 18 At the end of section 604 Add: (3) For the purposes of this Part, if: (a) a person starts to receive newstart allowance on a particular day; and (b) immediately before that day the person was a party to a Special Benefit Activity Agreement; and (c) the period covered by the agreement ends after that day; the agreement has effect on and after that day as if it were a Newstart Activity Agreement. 19 At the end of subsection 729(2) Add: ; and (g) if the person is: (i) the holder of a visa included in a class of visas that is issued for temporary protection, humanitarian, or safe haven purposes and that is determined by the Minister to be a class of visas to which this subparagraph applies; and (ii) a person to whom subsection (2A) applies; the person meets the additional criteria set out in paragraph (2B). 20 After subsection 729(2) Insert: (2A) For the purposes of paragraph (2)(g), the holder of a visa included in a class of visas that is issued for temporary protection, humanitarian, or safe haven purposes and that is determined by the Minister to be a class of visas to which subparagraph (2)(g)(i) applies is a person to whom that first‑mentioned paragraph applies only if: (a) the person would not qualify for disability support pension under section 94 or 95 if the person were an Australian resident; and (b) the person has attained the minimum age for youth allowance as determined in accordance with subsection 543A(1) but has not attained pension age; and (c) the person: (i) claims, or has claimed, special benefit on or after 1 January 2003 that is not continuous with any previous grant of special benefit; or (ii) if the person had not attained the minimum age for youth allowance as defined by subsection 543A(1) before 1 January 2003—is receiving special benefit granted before, or continuous with special benefit granted before, that date. (2B) A person referred to in paragraph (2)(g) is qualified for special benefit in respect of a period only if, in addition to meeting any relevant requirement in paragraphs (2)(a) to (f): (a) throughout the period, and for each period within the period, the person either: (i) satisfies the activity test set out in section 731A; or (ii) is not required to satisfy the activity test; and (b) at all times (if any) during the period when the person is not a party to a Special Benefit Activity Agreement, the person is prepared to enter into such an agreement; and (c) at all times during the period when the person is a party to a Special Benefit Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; and (d) if the person is required by the Secretary to enter into a Special Benefit Activity Agreement in relation to the period or a part of the period, the person enters into that agreement; and (e) while a Special Benefit Activity Agreement is in force, the person satisfies the Secretary that the person is taking reasonable steps to comply with the terms of the agreement. (2C) For the purposes of paragraph (2B)(e), a person is taking reasonable steps to comply with the terms of a Special Benefit Activity Agreement unless the person has failed to comply with the terms of the agreement and: (a) the main reason for failing to comply involved a matter that was within the person's control; or (b) the circumstances that prevented the person from complying were reasonably foreseeable by the person. (2D) For the avoidance of doubt, if, at any time during the period for which special benefit is granted to a person, the person's circumstances change such that, if the person were to be making a claim for special benefit on the basis of the changed circumstances, the person would not be qualified for special benefit, special benefit ceases to be payable. 21 After section 729A Insert: 729AA Effect of industrial action on qualification conditions of certain claimants for special benefit (1) A person who: (a) has claimed special benefit; and (b) is: (i) the holder of a visa included in a class of visas that is issued for temporary protection, humanitarian, or safe haven purposes and that is determined by the Minister to be a class of visas to which subparagraph 729(2)(g)(i) applies; and (ii) a person to whom subsection 729(2A) applies; is not, for the purposes of paragraph 729(2)(e), taken to be unable to earn a sufficient livelihood for the person and the person's dependants (if any) if: (c) that inability arises because the person has ceased to be employed, or to be employed at a particular level of income; and (d) that cessation is attributable to the person's being, or having been, engaged in industrial action, or in a series of industrial actions. (2) Subsection (1) does not apply in relation to a person if the Secretary is satisfied that: (a) the person's unemployment or the effect on the person's level of income was due to other people being, or having been, engaged in industrial action or in a series of industrial actions; and (b) the people or some of the people were members of a trade union that was involved in the industrial action; and (c) the person was not a member of the trade union during the period of the industrial action. (3) Subject to subsection (4), subsections (1) and (2) do not prevent a person from being qualified for special benefit in respect of a period that occurs after the relevant industrial action or series of industrial actions has stopped. (4) If the relevant industrial action or series of industrial actions is in breach of an order, direction or injunction issued by: (a) a State industrial authority within the meaning of section 4 of the Workplace Relations Act; or (b) the Australian Industrial Relations Commission; or (c) the Federal Court; a person is not qualified for special benefit in respect of a period unless that period occurs 6 weeks or more after the relevant industrial action or series of industrial actions has stopped. 22 After Subdivision A of Division 1 of Part 2.15 Insert: Subdivision AA—Activity test for certain nominated visa holders 731 Application of Subdivision This Subdivision applies to a person who is: (a) the holder of a visa that is included in a class of visas that is issued for temporary protection, humanitarian, or safe haven purposes and that is determined by the Minister to be a class of visas to which subparagraph 729(2)(g)(i) applies; and (b) a person to whom subsection 729(2A) applies. 731A Activity test (1) Subject to subsection (2), a person to whom this Subdivision applies satisfies the activity test in respect of a period, whether it is the period of the grant of special benefit or a period within that period, if the person satisfies the Secretary that, throughout the period, the person is: (a) actively seeking; and (b) willing to undertake; paid work in Australia other than unsuitable paid work within the meaning of section 731B. (2) The Secretary may notify a person to whom this Subdivision applies (other than a person who is not required to satisfy the activity test) who is receiving special benefit that the person must take reasonable steps to apply for a particular number of advertised job vacancies in the period specified in the notice. (3) If the person refuses or fails to comply with a notice issued under subsection (2), the person fails to satisfy the activity test in respect of the period specified in the notice. (4) The person must give the Secretary a written statement from each employer whose job vacancy the person applied for that confirms that the person applied for that job vacancy. (5) The statement from the employer must be in a form approved by the Secretary. (6) Subsection (4) does not apply to the person if the Secretary is satisfied that there are special circumstances in which it is not reasonable to expect the person to give the statement referred to in that subsection. (7) A person to whom this Subdivision applies also satisfies the activity test in respect of a period, whether it is the period of the grant of special benefit or a period within that period, if: (a) the Secretary is of the opinion that, throughout the period, the person: (i) should undertake particular paid work other than unsuitable paid work within the meaning of section 731B; or (ii) should participate in an approved program of work for unemployment payment; or (iii) should undertake a course of vocational or language training or another course, being a course approved by the Secretary as a course likely to improve the person's prospects for obtaining, or assist the person in seeking, suitable paid work; or (iv) if the person lives in an area where there is no locally accessible labour market and no locally accessible vocational training course—should participate in an activity suggested by the person and approved by the Secretary; and (b) the Secretary notifies the person that the person is required to act in accordance with the opinion; and (c) the person takes reasonable steps to comply, throughout the period, with the Secretary's requirement. (8) For the purposes of paragraph (7)(b), the Secretary must not notify the person that the person is required to participate in an approved program of work for unemployment payment if: (a) the person has not turned 18; or (b) the person or the person's partner has income; or (c) in the Secretary's opinion: (i) it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or (ii) performing the work in the conditions in which the work would be performed would constitute a risk to health or safety or would contravene a law of the Commonwealth, a State or a Territory relating to occupational health and safety. (9) If, after the Secretary has notified the person that the person is required to participate in an approved program of work for unemployment payment, the Secretary: (a) is satisfied that the person is a person to whom paragraph (8)(b) applies; or (b) forms the opinion that subparagraph (8)(c)(i) or (ii) applies in relation to the performance of that work by the person; the Secretary may, by notice in writing given to the person, inform the person that the requirement to participate in the program is revoked and, upon his or her so doing, the requirement is taken to have been revoked with effect from the day of that notification. (10) If the person to whom this Subdivision applies fails to take reasonable steps to comply, throughout a period, with a requirement of the Secretary under subsection (7), the person cannot be taken to satisfy the activity test in respect of that period in spite of any compliance of the person with subsection (1). (11) A person to whom this Subdivision applies also satisfies the activity test in respect of a period if, throughout the period, the person is taking reasonable steps to comply with the terms of a Special Benefit Activity Agreement between the Secretary and the person. (12) If a person to whom this Subdivision applies fails to take reasonable steps to comply, throughout a period, with the terms of a Special Benefit Activity Agreement between the Secretary and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1). (13) For the purposes of this section, a person to whom this Subdivision applies takes reasonable steps to comply with a notice under subsection (2), with a requirement of the Secretary under subsection (7), or with the terms of a Special Benefit Activity Agreement, as the case requires, unless the person has failed so to comply and: (a) the main reason for failing to comply involved a matter that was within the person's control; or (b) the circumstances that prevented the person from complying were reasonably foreseeable by the person. 731B Meaning of unsuitable work for the purposes of the activity test (1) For the purposes of subsection 731A(1) and subparagraph 731A(7)(a)(i), particular paid work is unsuitable paid work in respect of a person if and only if, in the Secretary's opinion: (a) the person lacks the particular skills, experience or qualifications that are needed to perform the work and no training will be provided by the employer; or (b) it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or (c) performing the work in the conditions in which the work would be performed would constitute a risk to health or safety and would contravene a law of the Commonwealth, a State or a Territory relating to occupational health and safety; or (d) the work would involve the person being self‑employed; or (e) the work would be covered by an industrial award but the employer would only employ the person if the person agreed to become a party to an agreement reducing or abolishing rights that the award confers on employees; or (f) the work would not be covered by an industrial award and the remuneration for the work would be lower than the minimum applicable rate of remuneration for comparable work that is covered by an industrial award; or (g) commuting between the person's home and the place of work would be unreasonably difficult; or (h) the work requires the person to move from a home in a place to a home in another place; or (i) for any other reason, the work is unsuitable for the person. (2) If: (a) a person seeks work in an area (the new area) that is outside the area (the old area) in which the person's home is situated; and (b) the person is offered permanent full‑time work (whether or not work of the kind sought) in the new area; the work offered is not unsuitable work in respect of the person because of paragraph (1)(g) or (h) unless: (c) the person is under the age of 18 or over the age of 50; or (d) the person or the person's partner is pregnant; or (e) the person or the person's partner has a severe medical condition and the condition makes it unreasonable for the person to accept the offer; or (f) the acceptance of the offer would jeopardise the current employment, or the employment prospects, of the person's partner; or (g) the person or the person's partner has a child under the age of 16 years who is living with them or is living somewhere else in the old area; or (h) the person or the person's partner has significant caring responsibilities in the old area; or (i) the educational, cultural or religious background of the person makes it unreasonable for the person to accept the offer; or (j) it is more appropriate for the person to participate in education or training than to accept the offer; or (k) the person would suffer severe financial hardship if the person were to accept the offer. (3) A person who, when seeking employment through an employment service provider, represents to the provider that he or she is willing to undertake work outside the area in which the person's home is situated is taken, for the purposes of subsection (2), to seek work outside the area at the time when the representation is made. (4) Subsection (3) does not affect what would otherwise constitute a circumstance of a person seeking work outside the area in which the person's home is situated. (5) Commuting is not unreasonably difficult for the purposes of paragraph (1)(g) if: (a) the sole or principal reason for the difficulty is that the commuting involves a journey, either from the person's home to the place of work or from the place of work to the person's home, that does not normally exceed 90 minutes in duration; or (b) in the Secretary's opinion, a substantial number of people living in the same area as the person regularly commute to their places of work in circumstances similar to those of the person. (6) Subsection (5) does not limit the Secretary's discretion to form the opinion that, for the purposes of paragraph (1)(g), commuting is not unreasonably difficult. (7) A reference in paragraph (1)(f) to remuneration for work is a reference to any income derived from the work that is income from personal exertion. 731C Certain actions taken to constitute failure to satisfy activity test (1) If a person who is subject to the activity test in respect of a period refuses or fails, without reasonable excuse, to attend a job interview, the person is taken to have failed to satisfy the activity test. (2) If a person who is subject to the activity test in respect of a period fails, without reasonable excuse: (a) to commence, or to complete, an approved program of work for unemployment payment that the person is required to undertake; or (b) to comply with the conditions of such a program; the person is taken to have failed to satisfy the activity test. 731D Persons in certain areas can be taken to comply with activity test If the Secretary considers that: (a) it would be reasonable to assume that: (i) a person to whom this Subdivision applies is present in an area described in subparagraph 731A(7)(a)(iv) at the end of a period; and (ii) throughout the period, the person is capable of undertaking, and willing to undertake, paid work that in the Secretary's opinion is suitable to be undertaken by the person; and (b) having regard to all the relevant factors, including: (i) the location of offices of the Department; and (ii) difficulties with transport and communication; and (iii) the educational and cultural background of the person; it would be unreasonable to expect the person to comply with the activity test in order to be qualified for special benefit for that period; then, unless the person has been notified of a requirement under subsection 731A(7) in relation to the period, the person is taken to satisfy the activity test during that period. 731E Relief from activity test—special circumstances (1) Subject to subsections (2) and (3), a person to whom this Subdivision applies is not required to satisfy the activity test for a period if: (a) the Secretary is satisfied that special circumstances, beyond the person's control, exist; and (b) the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to comply with the activity test for that period. (2) The period referred to in subsection (1) is not to exceed 13 weeks. (3) If: (a) the Secretary makes a number of determinations under subsection (1); and (b) the periods to which the determinations relate form a continuous period; the continuous period is not to exceed 13 weeks unless the Secretary determines otherwise, having regard to the continued existence, or likely continued existence, of the special circumstances on which the last preceding determination was based. 731F Relief from activity test—pre‑natal and post‑natal (1) A pregnant woman is not required to satisfy the activity test for the period that starts 6 weeks before the woman's expected date of confinement and ends on the day on which the woman gives birth to the child (whether or not the child is born alive). (2) If a woman gives birth to a child (whether or not the child is born alive), the woman is not required to satisfy the activity test for the period that starts on the day on which she gives birth to the child and ends 6 weeks after that day. 731G Relief from activity test—people engaged in voluntary work (1) Subject to subsection (3), a person to whom this Subdivision applies who has reached 50 years is taken to satisfy the activity test in respect of each period of 2 weeks while the person is receiving special benefit (the relevant period) if the person: (a) is engaged in approved full‑time unpaid voluntary work for an approved organisation for at least 32 hours in the relevant period; or (b) is engaged, for at least 40 hours in the relevant period, in a combination of: (i) approved unpaid voluntary work for an approved organisation; and (ii) suitable paid work for another person. (2) Subject to subsection (3), a person to whom this Subdivision applies who: (a) is under 50 years; and (b) has received special benefit in respect of a continuous period of at least 3 months but less than 12 months immediately before the start of a particular period of 2 weeks while the person is receiving special benefit (the relevant period); is taken to satisfy the activity test in respect of that relevant period if: (c) the person is engaged in approved full‑time unpaid voluntary work for an approved organisation for at least 32 hours in the relevant period; and (d) the relevant period occurs during the 12 months after the person commenced receiving special benefit; and (e) the person has not already undertaken more than 12 weeks approved full‑time unpaid voluntary work (whether continuous or not) with one or more approved organisations during the 12 months referred to in paragraph (d). (3) Neither subsection (1) nor (2) applies to a person in respect of a day in a relevant period if, having regard to the opportunities, or possible opportunities, for employment that become available to the person on or before the day, the Secretary considers that the subsection is not to apply to the person in respect of that day. (4) In this section: approved organisation is an organisation that has been approved by the Secretary for the purposes of this section. approved voluntary unpaid work, either full‑time or otherwise, is work that has been approved by the Secretary for the purposes of this section. 731H Relief from activity test—dependent child (1) A person is taken to satisfy the activity test in respect of a period when the person has at least one child who: (a) is a dependent child of the person within the meaning of subsection 5(2) as qualified by subsections 5(3) and (6); and (b) has not turned 16; and (c) is in Australia. (2) For the purposes of subsection (1), a child can be a dependent child of only one person at a time. (3) If the Secretary is satisfied that, but for subsection (2), a child would be a dependent child of 2 or more persons (adults), the Secretary must determine in relation to which of those adults the child is a dependent child. 731J Relief from activity test—carers (1) A person to whom this Subdivision applies is taken to satisfy the activity test during any period during which: (a) the person meets the qualification conditions for a carer payment set out in subsections 198(2), (3), (8) and (9); or (b) the person is participating in the care in hospital of another person (the hospitalised person), whether that other person is a disabled adult, a profoundly disabled child, a disabled child or a dependent child of a disabled adult; and (i) it is reasonable to assume that, if the hospitalised person were not in hospital, the carer would meet the qualification conditions for carer payment set out in subsections 198(2), (3), (8) and (9) for the hospitalised person or for the hospitalised person and another person or persons; and (ii) either the hospitalised person is terminally ill or it is reasonable to expect that the hospitalised person will reside in the private home of the carer and the hospitalised person upon leaving hospital. (2) However, the period, or the sum of the periods, for which a person to whom this Subdivision applies is taken to satisfy the activity test by virtue of the operation of paragraph (1)(b) must not exceed: (a) 63 days in any calendar year; or (b) another period that the Secretary, for any special reason in a particular case, decides to be appropriate. (3) If subsection (1) (including any subsection of section 198 that is applied under that subsection) uses a term that is defined for the purposes of section 198, it has the same meaning in subsection (1) as it has for the purposes of that section. (4) A person to whom this Subdivision applies is taken to satisfy the activity test during any period during which: (a) the person meets the qualification conditions for carer allowance set out in section 953 as modified by subsection (5); or (b) the person meets the qualification conditions for carer allowance set out in section 954 as modified by subsection (5); or (c) the person is participating in the care in hospital of another person (the hospitalised person), whether that other person is a disabled child or a disabled adult, and: (i) it is reasonable to assume that, if the hospitalised person were not in hospital, the carer would meet the qualification conditions for carer allowance set out in section 953 or 954 as so modified, whichever is appropriate, for the hospitalised person, or set out in both of sections 953 and 954 as so modified, for the hospitalised person and another person or persons; and (ii) either the hospitalised person is terminally ill or it is reasonable to expect that the hospitalised person will reside in the private home of the carer and the hospitalised person upon leaving hospital. (5) In this section: (a) a reference to section 953 as modified by this subsection is a reference to section 953, subject to: (i) the substitution of a requirement that care receivers be in Australia for the requirement in paragraphs 953(1)(b) and (2)(b); and (ii) the omission of paragraphs 953(1)(f) and (2)(f); and (b) a reference to section 954 as modified by this subsection is a reference to section 954, subject to: (i) the substitution of a requirement that the care receiver be in Australia for the requirement in paragraph 954(1)(a); and (ii) the omission of paragraph 954(1)(f). (6) However, the period, or the sum of the periods, for which a person to whom this Subdivision applies is taken to satisfy the activity test by virtue of the operation of paragraph (4)(c) must not exceed: (a) 63 days in any calendar year; or (b) another period that the Secretary, for any special reason in a particular case, decides to be appropriate. (7) If subsection (4) (including either or both of sections 953 and 954 as modified by subsection (5) and applied under subsection (4)) uses a term that is defined for the purposes of either or both of sections 953 and 954, that term has the same meaning in subsection (4) as it has for the purposes of either or both of those sections. 731JA Relief from activity test—grant of temporary protection, humanitarian or safe haven visa A person to whom this Subdivision applies is not required to satisfy the activity test in respect of the period of 13 weeks commencing the day after the day on which the person is granted a visa included in a class of visas that is issued for temporary protection, humanitarian or safe haven purposes and that is determined by the Minister to be a class of visas to which subparagraph 729(2)(g)(i) applies. 731K Temporarily incapacitated person not required to satisfy activity test (1) A person to whom this Subdivision applies 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) 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 (e) the Secretary is satisfied that the incapacity has not been brought about with a view to avoiding any requirement to satisfy 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. Subdivision AB—Special Benefit Activity Agreements for persons who are nominated visa holders 731L Special Benefit Activity Agreements—requirement to enter (1) Subject to this section, if a person who is a nominated visa holder: (a) has made a claim for special benefit; or (b) is in receipt of special benefit; the Secretary may require the person to enter into a Special Benefit Activity Agreement. (2) Subject to this section, the Secretary may require a person who has entered into a Special Benefit Activity Agreement to enter into another such agreement instead of the existing one. (3) Subsections (1) and (2) do not apply to a person who, under section 731E, 731F, 731JA or 731K, is not required to satisfy the activity test. (4) The Secretary is to give a person who is required to enter into a Special Benefit Activity Agreement notice of: (a) the requirement; and (b) the places and times at which the agreement is to be negotiated. (5) A Special Benefit Activity Agreement is a written agreement in a form approved by the Secretary. The agreement is between the person and the Secretary. 731M Special Benefit Activity Agreements—terms (1) A Special Benefit Activity Agreement with a person who is a nominated visa holder is to require the person to undertake one or more of the following activities approved by the Secretary: (a) a job search; (b) a vocational training course; (c) training that would help in searching for work; (d) paid work experience; (e) measures designed to eliminate or reduce any disadvantage the person has in the labour market; (f) subject to subsection (2), an approved program of work for unemployment payment; (g) another activity that the Secretary regards as suitable for the person and that is agreed between the person and the Secretary. (1A) The Secretary is not to require a person to undertake any activity referred to in subsection (1) other than a vocational training course that is an approved program unless the Secretary is satisfied that the person could be reasonably expected to undertake such an activity. (1B) For the purposes of subsection (1), an approved program means a literacy, language or numeracy program approved by the Secretary. (2) An agreement must not require the person concerned to participate in an approved program of work for unemployment payment if: (a) the person has not turned 18; or (b) the person or the person's partner has income; or (c) in the Secretary's opinion: (i) it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or (ii) performing the work in the conditions in which the work would be performed would constitute a risk to health or safety or would contravene a law of the Commonwealth, a State or a Territory relating to occupational health and safety. (3) The terms of an agreement, which include the specification of the activities that the person is to be required to undertake, are to be approved by the Secretary. (4) In considering whether to approve the terms of an agreement with a person who is a nominated visa holder, the Secretary is to have regard to the person's capacity to comply with the proposed agreement and the person's needs. (5) In having regard to the person's capacity to comply with an agreement and the person's needs, the Secretary is to take into account: (a) the person's education, experience, skills, age and physical condition; and (b) the state of the labour market in the locality where the person resides; and (c) the training opportunities available to the person; and (d) any factors that the Secretary considers relevant in the circumstances. (6) An agreement with a person: (a) may be varied or suspended; and (b) if another Special Benefit Activity Agreement is made with the person—may be cancelled; and (c) may be reviewed from time to time at the request of either party to the agreement; and (d) may be cancelled by the Secretary after a review under paragraph (c). (7) A person who is a party to an agreement is to notify the Secretary of any circumstances preventing or affecting the person's compliance with the agreement. 731N Special Benefit Activity Agreements—failure to negotiate (1) If: (a) a person who is a nominated visa holder has been given notice under subsection 731L(4) of a requirement to enter into a Special Benefit Activity Agreement; and (b) because the person did not: (i) attend the negotiation of the agreement; or (ii) respond to correspondence about the agreement; or (iii) agree to terms of the agreement proposed by the Secretary; or for any other reason, the Secretary is satisfied that the person is unreasonably delaying entering into the agreement; then: (c) the Secretary may give the person notice that the person is being taken to have failed to enter into the agreement; and (d) if the notice is given—the person is taken to have so failed. (2) A notice under paragraph (1)(c) must: (a) be in writing; and (b) set out the reasons for the decision to give the notice; and (c) include a statement describing the rights of the person to apply for a review of the decision. 23 After section 735 Insert: 736 Secretary may require certain persons to attend courses or undertake work (1) If: (a) a person, other than a person who is a nominated visa holder, is receiving, or has lodged a claim for, special benefit; and (b) the Secretary is of the opinion that the person should: (i) undertake a course of vocational training; or (ii) undertake a course: (A) which the person could reasonably undertake; and (B) to which the person has been referred by the Secretary; or (iii) do any work suitable to be done by the person; and (c) the Secretary notifies the person that the person is required to: (i) undertake that course; or (ii) do that work; and (d) the person does not take reasonable steps to comply with the Secretary's requirements; special benefit is not payable to the person for a period determined by the Secretary. (2) The Secretary may determine that special benefit is payable for a period for which he or she had previously determined that it was not payable under subsection (1) if, within a reasonable period, the person takes reasonable steps to comply with the Secretary's requirements. 24 Paragraphs 737(3)(a) and (b) Repeal the paragraphs, substitute: (a) a person is enrolled in a course of study that the Secretary has required the person to undertake under section 731A or 736; or (b) the person is engaged in a course undertaken under a Special Benefit Activity Agreement; or (c) the person has deferred a course of education. 25 At the end of Division 1 of Part 2.15 Add: Subdivision C—Activity test breaches 740 Activity test penalties for failure to satisfy activity test (1) If a person who is a nominated visa holder fails to satisfy the activity test (the failure), special benefit is not payable to the person. (2) If special benefit becomes payable to the person after the time it ceases to be payable under subsection (1), then: (a) if the failure is the person's first or second activity test breach in the 2 years immediately before the day after the failure—an activity test breach rate reduction period applies to the person; or (b) if the failure is the person's third or subsequent activity test breach in the 2 years immediately before the day after the failure—an activity test non‑payment period applies to the person. 741 Activity test penalties for failure to enter Special Benefit Activity Agreement (1) If: (a) a person is required to enter into a Special Benefit Activity Agreement in order to qualify, or to continue to qualify, for special benefit; and (b) the person fails to enter into a Special Benefit Activity Agreement (the failure); special benefit is not payable to the person because of the failure. (2) If special benefit becomes payable to the person after the time it ceases to be payable under subsection (1), then: (a) if the failure is the person's first or second activity test breach in the 2 years immediately before the day after the failure—an activity test breach rate reduction period applies to the person; or (b) if the failure is the person's third or subsequent activity test breach in the 2 years immediately before the day after the failure—an activity test non‑payment period applies to the person. 742 Activity test penalties for failure to comply with Special Benefit Activity Agreement (1) If: (a) a person is required to take reasonable steps to comply with the terms of a Special Benefit Activity Agreement in order to qualify, or to continue to qualify, for special benefit; and (b) the person fails to take reasonable steps to comply with the terms of the Special Benefit Activity Agreement (the failure); special benefit is not payable to the person because of the failure. (2) If special benefit becomes payable to the person after the time it ceases to be payable under subsection (1), then: (a) if the failure is the person's first or second activity test breach in the 2 years immediately before the day after the failure—an activity test breach rate reduction period applies to the person; or (b) if the failure is the person's third or subsequent activity test breach in the 2 years immediately before the day after the failure—an activity test non‑payment period applies to the person. 743 Unemployment due to voluntary act If: (a) the Secretary is satisfied that a person who is a nominated visa holder is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because the person is unemployed; and (b) a person's unemployment is due, either directly or indirectly, to a voluntary act of the person (the voluntary act); and (c) the Secretary is not satisfied that the person's voluntary act was reasonable; then: (d) if the voluntary act is the person's first or second activity test breach in the 2 years immediately before the day after the voluntary act—an activity test breach rate reduction period applies to the person; or (e) if the voluntary act is the person's third or subsequent activity test breach in the 2 years immediately before the day after the voluntary act—an activity test non‑payment period applies to the person. 744 Unemployment due to misconduct If: (a) the Secretary is satisfied that a person who is a nominated visa holder is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because the person is unemployed; and (b) the person's unemployment is due to the person's misconduct as a worker (the misconduct); then: (c) if the misconduct is the person's first or second activity test breach in the 2 years immediately before the day after the misconduct—an activity test breach rate reduction period applies to the person; or (d) if the misconduct is the person's third or subsequent activity test breach in the 2 years immediately before the day after the misconduct—an activity test non‑payment period applies to the person. 745 Refusal of job offer (1) If a person who is a nominated visa holder has refused or failed, without reasonable excuse, to accept a suitable offer of employment (the failure), special benefit is not payable to the person. (2) If special benefit becomes payable to the person after the time it ceases to be payable under subsection (1), then: (a) if the failure is the person's first or second activity test breach in the 2 years immediately before the day after the failure—an activity test breach rate reduction period applies to the person; or (b) if the failure is the person's third or subsequent activity test breach in the 2 years immediately before the day after the failure—an activity test non‑payment period applies to the person. 745A Failure to provide information etc. (1) If a person who is a nominated visa holder: (a) refuses or fails, without reasonable excuse, to provide information in relation to a person's income from remunerative work (the failure); or (b) knowingly or recklessly provides false or misleading information in relation to the person's income from remunerative work (the provision of information); when required to do so under a provision of the Administration Act, special benefit is not payable to the person. (2) If special benefit becomes payable to the person after the time it ceases to be payable under subsection (1), then: (a) if the failure or the provision of information is the person's first or second activity test breach in the 2 years immediately before the day after the failure or the provision of information—an activity test breach rate reduction period applies to the person; or (b) if the failure or the provision of information is the person's third or subsequent activity test breach in the 2 years immediately before the day after the failure or the provision of information—an activity test non‑payment period applies to the person. 745B Activity test non‑payment periods If an activity test non‑payment period applies to a person under this Part, the period applicable to the person is 8 weeks. 745C Commencement of activity test non‑payment periods (1) Subject to section 745D, if an activity test non‑payment period applies to a person under this Part, the Secretary must give to the person a written notice informing the person of the commencement of the activity test non‑payment period applicable to the person. (2) Subject to subsection (4) of this section and to section 745D, the activity test non‑payment period commences on the day on which the notice is given to the person. (3) If, at the time of the commencement of an activity test non‑payment period under this section, the person is already subject to an activity test non‑payment period (the pre‑existing non‑payment period), the pre‑existing non‑payment period is taken to end immediately before the commencement of the first‑mentioned activity test non‑payment period. (4) Subject to section 745D, if: (a) on or before the day on which the period referred to in subsection (1) would (apart from this subsection) have commenced, special benefit ceases to be payable to the person; and (b) it has not ceased to be payable because of the application of an activity test non‑payment period; the activity test non‑payment period referred to in subsection (1) commences on the day on which the special benefit ceases to be payable to the person. 745D Application of activity test non‑payment periods before claims for special benefit (1) If: (a) at a time when the person was not qualified for special benefit, an event occurred that would have resulted in an activity test non‑payment period applying to the person under section 743 or 744 had the person made a claim for special benefit; and (b) before the end of that period (assuming that the period had commenced on the day on which the event occurred), the person made a claim for special benefit; the activity test non‑payment period is taken to have commenced on the day after the day on which the event occurred. (2) If: (a) at a time when the person was not qualified for special benefit, an event occurred that would have resulted in an activity test non‑payment period applying to the person under section 743 or 744 had the person made a claim for special benefit; and (b) the person made a claim for special benefit after the end of that period (assuming that the period had commenced on the day on which the event occurred); then: (c) the activity test non‑payment period is taken to have commenced and to have ended before the claim was made; and (d) the Secretary is not obliged to give the person a written notice under subsection 745C(1) in respect of the activity test non‑payment period. 745E Activity test non‑payment periods—interaction with activity test breach rate reduction periods (1) This section applies if, under this Part: (a) an activity test non‑payment period applies to a person; and (b) during the whole or part of that period, the whole or part of an activity test breach rate reduction period also applies to the person (the overlap period). (2) Subject to subsection (4), if this section applies, the activity test non‑payment period and the activity test breach rate reduction period are to run concurrently during the overlap period. (3) If this section applies, then only the non‑payment restriction relating to the activity test non‑payment period is to apply to the person during the overlap period. (4) If, at the time of the commencement of an activity test non‑payment period under this Part, the person is already subject to an activity test breach rate reduction period (the pre‑existing reduction period), the pre‑existing reduction period is taken to end immediately before the commencement of the activity test non‑payment period under this Part. 745F Effect of sections 745C and 745D For the avoidance of doubt, sections 745C and 745D do not prevent special benefit ceasing to be payable in circumstances that do not involve the application of an activity test non‑payment period under this Part. 745G Where one event may give rise to both an activity test penalty period and an administrative breach rate reduction period If, but for this section, an event would result in an activity test penalty period and an administrative breach rate reduction period both applying to a person under this Act, only the provision imposing the activity test penalty period is to apply to the person. Subdivision D—Situations where special benefit not payable to persons who are nominated visa holders (administrative breaches) 745H Administrative breach rate reduction period to apply to certain persons who fail to comply with notification requirements If a person who is a nominated visa holder refuses or fails, without reasonable excuse, to comply with a requirement made of the person under section 64, 67, 68 or 192 of the Administration Act: (a) special benefit is not payable to the person; and (b) if, at a later time, special benefit becomes payable to the person—an administrative breach rate reduction period worked out under section 752 applies to the person. Subdivision E—Participation by persons who are nominated visa holders in an approved program of work for unemployment payment 745J Definitions For the purposes of this Subdivision: activity test penalty period, in relation to a person who is a nominated visa holder, means a period during which special benefit that would otherwise be payable to the person is payable at a reduced rate, or is not payable, because of the operation of section 740, 741, 742, 743, 744, 745 or 745A in relation to an act or omission of the person. administrative penalty period, in relation to a person who is a nominated visa holder, means a period during which special benefit that would otherwise be payable to the person is payable at a reduced rate because of the operation of section 745H of this Act, or subsection 63(5) of the Administration Act, in relation to an act or omission of the person. penalty period means: (a) activity test penalty period; or (b) administrative penalty period. 745K Penalty periods cease to apply on start of participation in approved program of work for unemployment payment (1) In spite of any provisions of this Act, if: (a) a penalty period or a number of penalty periods apply to, or, but for this section, would apply to, a person who is a nominated visa holder; and (b) the person commences to participate in an approved program of work for unemployment payment; the penalty period or periods cease to apply to the person on and after that commencement. (2) Subsection (1) has effect whether or not the person completes the participation in that program. 745L Participation in an approved program of work for unemployment payment does not give rise to employment under certain industrial relations legislation A person who is a nominated visa holder is not to be taken, by reason only of participation in an approved program of work for unemployment payment in accordance with a requirement of the Secretary under section 731A or with the terms of a Special Benefit Activity Agreement under section 731M, to be: (a) an employee within the meaning of section 9 of the Occupational Health and Safety (Commonwealth Employment) Act 1991; or (b) an employee within the meaning of section 5 of the Safety, Rehabilitation and Compensation Act 1988; or (c) an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992; or (d) an employee for the purposes of the Workplace Relations Act 1996. Subdivision F—Other situations where special benefit not payable to persons who are nominated visa holders 745M Seasonal workers (1) This section applies if, at any time during the 6 months immediately before the day on which a person who is a nominated visa holder lodges a claim for special benefit, the person or, if the person is a member of a couple, the person or the person's partner, has been engaged in seasonal work within the meaning of subsection 16A(1). (2) Special benefit is not payable to the person: (a) if the person is subject to a seasonal work preclusion period within the meaning of subsection 16A(1) (whether in relation to the claim referred to in subsection (1) or any other claim under this Act) and the Secretary has not made a determination under subsection (3) in relation to the person—for the person's seasonal work preclusion period; or (b) if the Secretary has made a determination under subsection (3) in relation to the person—for that part (if any) of the person's seasonal work preclusion period to which the person is subject as a result of the determination. (3) If the Secretary is satisfied that a person is in severe financial hardship within the meaning of subsection 19C(2) or (3), whichever is appropriate, because the person has incurred unavoidable or reasonable expenditure within the meaning of subsection 19C(4) while the person is subject to a seasonal work preclusion period (whether in relation to the claim referred to in subsection (1) or any other claim under this Act): (a) the Secretary may determine that the person is not subject to the whole, or any part, of the preclusion period; and (b) the determination has effect accordingly. 745N Move to area of lower employment prospects (1) Subject to subsection (3), if, in the opinion of the Secretary, a person who is a nominated visa holder has reduced his or her employment prospects by moving to a new place of residence without sufficient reason, special benefit is not payable to the person for 26 weeks. (2) Subsection (1) extends to a person who makes a claim for special benefit on or after the day on which the person moved to the new place of residence and before the end of the period referred to in that subsection. (3) If a person to whom special benefit is not payable under subsection (1) for a period of 26 weeks (including that subsection as it applies by virtue of subsection (2)) does either of the following during that period: (a) moves back to the place of residence (the original place of residence) the movement from which resulted in special benefit not being payable to him or her; (b) moves to another place of residence a movement to which from the original place of residence would not have resulted in special benefit not being payable to him or her; the period of 26 weeks ends at the time of the movement back to the original place of residence or the movement to the other place of residence, as the case may be. (4) For the purposes of subsection (1), a person has a sufficient reason for moving to a new place of residence if and only if the person: (a) moves to live with a family member who has already established his or her residence in that place of residence; or (b) moves to live near a family member who has already established residence in the same area; or (c) satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or by a family member; or (d) satisfies the Secretary that the person has moved from his or her original place of residence because of an extreme circumstance which made it reasonable for the person to move to the new place of residence (for example, the person had been subjected to domestic or family violence in the original place of residence). (5) The Secretary may determine in writing the day on which the period of non‑payment imposed by subsection (1) commences and that day may be before the day of the determination. 26 After the heading to Division 4 of Part 2.15 Insert: Subdivision A—Basic determination of special benefit 27 After section 746 Insert: Subdivision B—Approved program of work supplement 747 Approved program of work supplement for persons who are nominated visa holders If a person who is a nominated visa holder: (a) is receiving special benefit; and (b) is participating in an approved program of work for unemployment payment; the rate of the person's special benefit is increased by an amount of $20.80, to be known as the approved program of work supplement, for each fortnight during which the person participates in the program unless, during that fortnight, the person subsequently ceases to participate in the program in circumstances that constitute: (c) a failure of the activity test to which the person is subject; or (d) a failure to comply with the terms of a Special Benefit Activity Agreement to which the person is subject. Subdivision C—Activity test breach reductions in the rate of special benefit for persons who are nominated visa holders 748 Activity test breach rate reduction periods in respect of persons who are nominated visa holders If an activity test breach rate reduction period applies to a person under this Part, the period applicable to the person is 26 weeks. 749 Commencement of activity test breach rate reduction periods in respect of persons who are nominated visa holders (1) Subject to section 750, if an activity test breach rate reduction period applies to a person under this Part, the Secretary must give to the person a written notice informing the person of the commencement of the activity test breach rate reduction period applicable to the person. (2) Subject to subsection (4) of this section and to section 750, the activity test breach rate reduction period commences on the day on which the notice is given to the person. (3) If, at the time of the commencement of an activity test breach rate reduction period under this section, the person is already subject to an activity test breach rate reduction period (the pre‑existing reduction period), the pre‑existing reduction period is taken to end immediately before the commencement of the first‑mentioned activity test breach rate reduction period. (4) Subject to section 750, if, on or before the day on which the period referred to in subsection (1) would (apart from this subsection) have commenced, special benefit ceases to be payable to the person, the period commences on the day on which special benefit ceases to be payable to the person. 750 Application of activity test breach rate reduction periods before claims for special benefit (1) If: (a) at a time when the person was not qualified for special benefit, an event occurred that would have resulted in an activity test breach rate reduction period applying to the person under section 743 or 744 had the person made a claim for special benefit; and (b) before the end of that period (assuming that the period had commenced on the day on which the event occurred), the person made a claim for special benefit; the activity test breach rate reduction period is taken to have commenced on the day after the day on which the event occurred. (2) If: (a) at a time when the person was not qualified for special benefit, an event occurred that would have resulted in an activity test breach rate reduction period applying to the person under section 743 or 744 had the person made a claim for special benefit; and (b) the person makes a claim for special benefit after the end of that period (assuming that the period had commenced on the day on which the event occurred); then: (c) the activity test breach rate reduction period is taken to have commenced and to have ended before the claim was made; and (d) the Secretary is not obliged to give the person a written notice under subsection 749(1). 751 Rate of special benefit where activity test breach rate reduction period applies (1) If: (a) an activity test breach rate reduction period applies to a person under this Part; and (b) the person qualifies for special benefit; and (c) special benefit is payable to the person; the person's rate of special benefit for the activity test breach rate reduction period is worked out as follows: Special benefit rate calculator for activity test breach rate reduction period applying under this