42RDetermining that participation payments payable

42R  Determining that participation payments payable  (1) The Secretary may determine that, despite a person’s serious failure period, a participation payment is payable to the person during the period mentioned in subsection (2) if the person informs the Secretary that the person intends to comply with a serious failure requirement imposed on the person.  (2) The participation payment is payable during the period that:  (a) begins on the day that the person informs the Secretary; and  (b) ends on:  (i) the day before the person begins to comply with the serious failure requirement; or  (ii) if the person does not begin to comply with the serious failure requirement on the day the person is required to begin—the day before that day.  (3) If a period ends under subparagraph (2)(b)(ii), the period (the payability period) mentioned in subsection (2) does not count towards the 8 weeks of the person’s serious failure period. Subdivision E—Unemployment resulting from a voluntary act or misconduct 42S  Unemployment resulting from a voluntary act or misconduct  (1) A participation payment is not payable to a person for the period mentioned in subsection (3) if the Secretary determines that:  (a) the person is unemployed as a result (whether direct or indirect) of a voluntary act of the person; or  (b) the person is unemployed as a result of the person’s misconduct as an employee. Note: The Secretary may continue the participation payment pending the outcome of an application for review (see sections 131 and 145 of the Administration Act).  (2) Despite paragraph (1)(a), the Secretary must not make a determination under that paragraph in relation to a person if:  (a) the Secretary is satisfied that the voluntary act was reasonable; or  (2A) Despite subsection (1), the Secretary must not make a determination under that subsection in relation to a person if:  (b) the work in relation to which the person became unemployed was work of more than 15 hours per week. Period of non‑payment  (3) The participation payment is not payable to the person for the period (the unemployment non‑payment period) of:  (a) 8 weeks beginning on the initial day; or  (b) 12 weeks beginning on the initial day if, during the 6 months ending on the day immediately before the person becomes unemployed, relocation assistance, in relation to the employment to which the voluntary act or misconduct related, has been paid to or for the benefit of the person. Note: The Secretary may end an unemployment non‑payment period under subsection (4).  (3A) For the purposes of subsection (3), the initial day is:  (a) the day that the person becomes unemployed as a result of the person’s voluntary act or misconduct; or  (b) the first day of the first instalment period that begins after the day the Secretary makes the determination if:  (i) the Secretary considers that first day is more appropriate than the day mentioned in paragraph (a); and  (ii) the person is receiving a participation payment at the time of the voluntary act or misconduct. Ending unemployment non‑payment periods  (4) The Secretary may end a person’s unemployment non‑payment period if:  (a) the Secretary determines that serving the unemployment non‑payment period would cause the person to be in severe financial hardship; and  (b) the person is in a class of persons specified by legislative instrument under subsection (5). Note: For in severe financial hardship see subsection 14A(7) of the 1991 Act.  (5) For the purposes of subsection (4), the Secretary may, by legislative instrument, specify a class of persons. Subdivision EA—Immediate non‑payment of participation payments for certain failures 42SA  Immediate non‑payment of participation payments for certain failures  (1) The Secretary may determine that a participation payment is not payable to a person if:  (a) the person fails to participate, on a day, in an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person; or  (b) the person fails to attend an appointment that the person is required to attend by an employment pathway plan that is in force in relation to the person; or  (ba) the person fails to attend an appointment that the person is required to attend by a notice under subsection 63(2); or  (c) the person fails to comply with a reconnection requirement or a further reconnection requirement. Note: If paragraph (1)(a), (b) or (ba) applies, a reconnection requirement must be imposed for that failure (see section 42G).  (1A) Despite subsection (1), the Secretary must not make a determination under that subsection that a participation payment is not payable to a person if the person is someone to whom section 42SB applies.  (2) The participation payment is not payable to the person for the period beginning on the day the person first commits the failure and ending at the end of:  (a) for a failure referred to in paragraph (1)(a), (b) or (ba):  (i) if the person complies with the reconnection requirement imposed on the person under paragraph 42G(e) because of that failure—the day before the day on which the person so complies; or  (ii) if the person fails to comply with the reconnection requirement imposed on the person under paragraph 42G(e) because of that failure—the day before the day on which the person first commits the failure to comply with that reconnection requirement; or  (aa) for a failure referred to in paragraph (1)(c)—the day before the day on which the person complies with a reconnection requirement or further reconnection requirement; or  (b) if the Secretary determines that an earlier day is more appropriate than the day that would otherwise apply under paragraph (a) or (aa)—that earlier day.  (2AA) If:  (a) a participation payment is not payable to a person for a period (the non‑payability period) under subsection (2) because of the person’s failure to attend an appointment with the person’s employment provider; and  (b) on a day (the relevant day), the Secretary requires the person to attend a rescheduled appointment with the person’s employment provider; and  (c) the rescheduled appointment is on a day that is more than 2 business days after the relevant day; then, despite subsection (2), the non‑payability period is taken to end under that subsection at the end of the relevant day. Note 1: The requirement to attend the rescheduled appointment will be a reconnection requirement or further reconnection requirement. Note 2: For business day, see section 2B of the Acts Interpretation Act 1901.  (2A) If:  (a) a participation payment is not payable to a person for a period under subsection (2); and  (b) the participation payment is payable to the person for any days occurring before that period begins; then, despite any other provision of the social security law, the Secretary may withhold payment of the participation payment to the person for those days until that period ends.  (3) If a period ends under subsection (2) in relation to a person, then, subject to the social security law, the participation payment becomes payable to the person for that period. Note: For a failure referred to in paragraph (1)(b) or (ba), a penalty amount may be deducted from the person’s participation payment: see Subdivision EC.  (4) The Secretary must notify the person of a determination under subsection (1). The Secretary may do so in any way that the Secretary considers appropriate. Subdivision EB—Failures by certain recipients of parenting payments 42SB  Suspension of payments for certain failures  (1) This section applies in relation to a person who:  (a) is receiving a participation payment that is a parenting payment; and  (b) is someone to whom paragraph 500(1)(ca) of the 1991 Act applies.  (2) The Secretary may determine that the parenting payment is not payable to the person if:  (a) the person fails to comply with a requirement that was notified to the person under subsection 63(2) or (4); or  (b) the person fails to comply with a requirement under section 40A to enter into an employment pathway plan; or  (c) the person fails to participate, on a day, in an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person; or  (d) the person fails to attend an appointment that the person is required to attend by an employment pathway plan that is in force in relation to the person.  (3) The parenting payment is not payable to the person for the period beginning on the day the person first commits the failure and ending at the end of:  (a) the day before the day on which the person notifies the Secretary that the person intends to comply with the requirement; or  (b) if the Secretary determines that an earlier day is more appropriate than the day that would otherwise apply under paragraph (a)—that earlier day.  (4) If a period ends under subsection (3) in relation to the person, then, subject to the social security law, the parenting payment becomes payable to the person for that period. Subdivision EC—Non‑attendance failures 42SC  Non‑attendance failures  (1) The Secretary may determine that a person commits a non‑attendance failure if the Secretary makes a determination under subsection 42SA(1) because of the person’s failure referred to in paragraph 42SA(1)(b) or (ba).  (2) Despite subsection (1), the Secretary must not determine that a person commits a non‑attendance failure if the person satisfies the Secretary that the person has a reasonable excuse for the person’s failure referred to in paragraph 42SA(1)(b) or (ba). Note: The Secretary must take certain matters into account for the purposes of subsection (2) and may be prohibited from taking other matters into account for those purposes (see section 42U). See also section 42UA (about prior notification of excuses).  (3) The Secretary must include in a determination under this section the instalment period in which a penalty amount (see section 42T) for the non‑attendance failure is to be deducted from the person’s instalment of a participation payment. 42SD  Deduction of penalty amount   If the Secretary determines that a person commits a non‑attendance failure, the person’s penalty amount (see section 42T) for the non‑attendance failure is to be deducted from the person’s instalment of a participation payment for the instalment period determined under subsection 42SC(3). Note: The balance of the penalty amount is to be deducted from instalments of the participation payment for any later instalment periods, or from any instalments of any other participation payment paid to the person (see section 42V). Subdivision F—General provisions 42T  Legislative instrument determining method for working out penalty amount  (1) The Minister must, by legislative instrument, determine a method for working out a person’s penalty amount for a no show no pay failure, a reconnection failure or a non‑attendance failure.  (2) The method determined for a no show no pay failure that a person commits on a day must not provide for a penalty amount for the person that is more than the following:   (3) The method determined for a reconnection failure that a person commits must not provide for a penalty amount in respect of a day in the reconnection failure period that is more than the following:   (3A) The method determined for a non‑attendance failure that a person commits must not provide for a penalty amount, in respect of a day in the non‑attendance failure penalty period, that is more than the following:  Note: Any amount withheld under subsection 42SA(2A) for days in the instalment period remains an amount payable to the person for the instalment period.  (3B) For the purposes of subsection (3A), the non‑attendance failure penalty period is the period:  (a) beginning on the day the person is notified by the Secretary of the determination under subsection 42SA(1); and  (b) ending on the day the period under subsection 42SA(2) ends.  (4) In addition, the method determined for a no show no pay failure or a reconnection failure must relate to:  (a) for a person’s no show no pay failure—the amount of the participation payment paid to the person on the day on which the person commits the no show no pay failure; or  (b) for a person’s reconnection failure—the amount of the participation payment paid to the person during the reconnection failure period.  (5) The method determined by the Minister for working out a person’s penalty amount must not affect any rent assistance, pharmaceutical allowance or youth disability supplement payable to the person.  (6) The method determined may provide for a penalty amount that is nil.  (7) The legislative instrument may also deal with the amount of a penalty amount to be deducted from an instalment of a participation payment. 42U  Legislative instruments relating to reasonable excuse Matters to be taken into account  (1) The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether a person has a reasonable excuse for committing:  (a) a no show no pay failure (see paragraph 42C(4)(a)); or  (b) a connection failure (see paragraph 42E(4)(a)); or  (c) a reconnection failure (see paragraph 42H(3)(a)); or  (d) a serious failure (see paragraph 42N(2)(a)); or  (e) a non‑attendance failure (see subsection 42SC(2)).  (2) To avoid doubt, a determination under subsection (1) does not limit the matters that the Secretary may take into account in deciding whether the person has a reasonable excuse. Matters not to be taken into account  (3) The Secretary may, by legislative instrument, determine matters that the Secretary must not take into account in deciding whether a person has a reasonable excuse for committing:  (a) a no show no pay failure (see paragraph 42C(4)(a)); or  (b) a connection failure (see paragraph 42E(4)(a)); or  (c) a reconnection failure (see paragraph 42H(3)(a)); or  (d) a serious failure (see paragraph 42N(2)(a)); or  (e) a non‑attendance failure (see subsection 42SC(2)). 42UA  Prior notification of excuse  (1) This section applies in relation to the following failures of a person:  (a) a failure to participate, on a day, in an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person;  (b) a failure to comply with a serious failure requirement imposed on the person, where the requirement was to undertake an activity on a day or to attend an appointment, or contact a person, at a particular time;  (c) a failure to comply with a requirement notified to the person under subsection 63(2), where the requirement was to attend an office of the Department, to contact the Department or to attend a particular place for a particular purpose;  (d) a failure to attend an appointment that the person is required to attend by an employment pathway plan that is in force in relation to the person;  (e) a failure to comply with a reconnection requirement or a further reconnection requirement, where the requirement was to undertake an activity on a day or to attend an appointment, or contact a person, at a particular time.  (2) For the purposes of subparagraph 42C(4)(a)(ii), paragraph 42E(4)(a) or 42H(3)(a) or subsection 42SC(2), in deciding whether the person has a reasonable excuse for the failure, the following table has effect:   - Prior notification of excuse - For this failure: An excuse cannot be a reasonable excuse unless: - 1 A failure referred to in paragraph (1)(a) or (d) (a) before the start of the activity on the day concerned or before the time of the appointment, the person notified the excuse to the person or body specified in the employment pathway plan as the person or body to whom prior notice should be given if the person is unable to undertake the activity or attend the appointment; or(b) the Secretary is satisfied that there were circumstances in which it was not reasonable to expect the person to give the notification - 2 A failure referred to in paragraph (1)(b) or (e) (a) before the start of the activity on the day concerned or before the time of the appointment or contact, the person notified the excuse to the person or body notified by the Secretary as the person or body to whom prior notice should be given if the person is unable to undertake the activity, attend the appointment or make the contact; or(b) the Secretary is satisfied that there were circumstances in which it was not reasonable to expect the person to give the notification - 3 A failure referred to in paragraph (1)(c) (a) before the end of the time specified under subsection 63(2), the person notified the excuse to the person or body notified by the Secretary as the person or body to whom prior notice should be given if the person is unable to attend the office, contact the Department or attend the place; or(b) the Secretary is satisfied that there were circumstances in which it was not reasonable to expect the person to give the notification Note: Despite subsection (2), the Secretary may decide for other reasons that the excuse is not a reasonable excuse.