(c) there are reasonable grounds for believing that the claimant will be released from gaol or psychiatric confinement on or before the day that is the claimant’s expected release day for the purposes of subsection 35(1); and
(d) either:
(i) in the case of a claim for a social security pension or benefit, the claimant is qualified for the pension or benefit; or
(ii) in any case, the claimant is expected to be qualified for the pension, benefit or payment immediately after the claimant is released from gaol or psychiatric confinement; and
(e) the pension, benefit or payment is expected to be payable to the claimant immediately after the claimant is released from gaol or psychiatric confinement.
(8) The Secretary must make a determination granting a claim for a concession card if the Secretary is satisfied that the claimant is qualified for the card.
Note: In some cases, the Secretary must not make a determination granting a claim for a seniors health card or an income‑tested health care card if the Secretary makes a request under subsection 75(2) or (3) of the claimant (about providing tax file numbers): see subsection 77(1).
(9) A determination under subsection (8) granting a claim for a seniors health card:
(a) must specify the period at the end of which the determination ceases to have effect; and
(b) unless it has already been cancelled, ceases to have effect at the end of that period.
(10) A determination under subsection (8) granting a claim for a health care card under Subdivision B of Division 3 of Part 2A.1 of the 1991 Act:
(a) must specify the period at the end of which the determination ceases to have effect; and
(b) unless it has already been cancelled, ceases to have effect at the end of that period.
(11) The Minister may, by legislative instrument, determine the periods that are to be specified in determinations for the purposes of subsections (9) and (10).
37AA Grant of claim—schooling requirements
(1) Without limiting subsection 37(1), the Secretary must determine that a claim for a schooling requirement payment is to be granted if the Secretary is satisfied that:
(a) the person is qualified, or is expected to be qualified, for the payment; and
(b) the payment would be payable if it were not for the application of subsection 124G(1), 124L(1) or 124NE(1).
(2) Subsection (1) does not apply to a schooling requirement payment under the Veterans’ Entitlements Act.
Note 1: Schooling requirement payments are social security benefits, social security pensions and certain payments under the Veterans’ Entitlements Act (see section 124D of this Act).
Note 2: Section 124G and 124L provide that a schooling requirement payment is not payable to a person if he or she fails to comply with an enrolment notice or an attendance notice after the end of an initial compliance period (unless he or she has a reasonable excuse or special circumstances apply). Section 124NE provides that a schooling requirement payment is not payable to a person if he or she fails to comply with a compliance notice (subject to exceptions in that section).
Note 3: If the payment is suspended under section 124H, 124M or 124NF (because of the application of subsection 124G(1), 124L(1) or 124NE(1)) on the day the claim is granted, the start day for the payment is deferred until the suspension ends (at the earliest) (see clause 5 of Schedule 2).
37AB Grant of claim—eligibility requirements taken to be satisfied etc.
(1) If a claim for a social security payment or concession card (the new benefit) is made by a person receiving or holding another social security payment or concession card (the current benefit), then subsections (2) and (3) apply in relation to the Secretary considering, for the purposes of determining under section 37 whether the claim is to be granted:
(a) whether the Secretary is satisfied that the person is qualified, or is expected to be qualified, for the new benefit; and
(b) if the new benefit is a social security payment—whether the Secretary is satisfied that the new benefit is, would be, or is expected to be, payable to the person.
(2) The Secretary may treat the person as having satisfied an eligibility requirement (the new requirement) for the new benefit if:
(a) the new requirement is the same as an eligibility requirement (the current requirement) for the current benefit; and
(b) at a particular time, the Secretary was satisfied that the person satisfied the current requirement; and
(c) since that time, no information or statement has been given to the Department about an event, a change of circumstances or a matter that might affect whether the person satisfies the current requirement.
(3) If an eligibility factor (the new factor) for the new benefit is the same as an eligibility factor (the current factor) for the current benefit, the Secretary may:
(a) treat the new factor as existing in relation to the person, if:
(i) at a particular time, the Secretary was satisfied that the current factor existed in relation to the person; and
(ii) since that time, no information or statement has been given to the Department about an event, a change of circumstances or a matter that might affect whether the current factor exists in relation to the person; or
(b) treat the new factor as not existing in relation to the person, if:
(i) at a particular time, the Secretary was satisfied that the current factor did not exist in relation to the person; and
(ii) since that time, no information or statement has been given to the Department about an event, a change of circumstances or a matter that might affect whether the current factor exists in relation to the person.
Other powers not limited
(4) This section does not, by implication, limit any other power of the Secretary to do the following in making a determination under section 37:
(a) treat a person as having satisfied an eligibility requirement;
(b) treat an eligibility factor as existing, or not existing, in relation to a person.
Definitions
(5) In this section:
eligibility factor means:
(a) for a social security payment—a fact, matter or circumstance the existence of which in relation to a person is relevant to:
(i) whether the person qualifies for the payment; or
(ii) whether the payment is payable to the person; or
(b) for a concession card—a fact, matter or circumstance the existence of which in relation to a person is relevant to whether the person qualifies for the card.
eligibility requirement means:
(a) for a social security payment—a requirement that a person must satisfy:
(i) to qualify for the payment; or
(ii) for the payment to be payable to the person; or
(b) for a concession card—a requirement that a person must satisfy to qualify for the card.
37A Duration of certain health care cards
(1) A seniors health card expires at the end of the period specified, for the purposes of subsection 37(9), in the determination granting the claim for the card.
(1A) However, subsection (1) does not apply to a seniors health card issued under subsection 1061ZJA(3), (4) or (5) of the 1991 Act.
(2) A health care card granted to a person qualified for the card under Subdivision B of Division 3 of Part 2A.1 of the 1991 Act expires at the end of the period specified, for the purposes of subsection 37(10), in the determination granting the claim for the card.
(3) A person to whom a concession card referred to in subsection (1) or (2) has been granted may make a claim for a further concession card before the first‑mentioned card expires.
38 Refusal of claim for special employment advance
(1) Subject to subsection (2), the Secretary must refuse a claim for special employment advance if:
(a) the claim is based on the effect of unreceived income on the claimant’s special employment advance qualifying entitlement; and
(b) the Secretary is satisfied that the income will be received within 2 days after the claim is made.
(2) Subsection (1) does not apply if the Secretary considers that the claimant’s financial needs are such that the claim should be granted.
(3) In this section:
unreceived income has the same meaning as in subsection 1061EM(1) of the 1991 Act.
39 Deemed refusal of claim
(1) Subject to subsections (3) and (9), if the Secretary does not make a determination regarding a claim within the period of 13 weeks after the day on which the claim was made, the Secretary is taken to have made, at the end of that period, a determination rejecting the claim.
(3) If:
(a) a person makes a claim for a social security payment that is a relevant social security payment for the purposes of subclause 4(1) of Schedule 2; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken, for the purposes of subsection (1), to be made on the day on which the person becomes qualified.
(4) If the Secretary asks a person who has made a claim for a social security payment or a concession card or another person for information in relation to the claim, the period that:
(a) begins on the day on which the Secretary asks for the information; and
(b) ends on the day on which the information is given to the Secretary;
is not counted for the purpose of subsection (1).
(5) If:
(a) a person makes a claim (the actual claim); and
(b) apart from this subsection, the person would, by virtue of section 13 or 14, be taken to have made the claim on a particular day;
then, in spite of section 13 or 14, as the case may be, a reference in subsection (1) of this section to the day on which the claim was made is a reference to the day on which the actual claim was made.
(6) The Secretary may determine that a specified period, being a period that is longer than 13 weeks, applies for the purposes of claims for an AVTOP in relation to a declared overseas terrorist act.
(7) If, under subsection (6), there is a determination of a period in force for the purposes of claims for an AVTOP in relation to a declared overseas terrorist act, then this Act applies to those claims as if references in subsections (1) and (3) to the period of 13 weeks were references to the period referred to in the determination.
(8) A determination under subsection (6) is not a legislative instrument.
(9) A claim for a student start‑up loan for a qualification period made before the start of the qualification period is taken to have been made on the first day of the qualification period.
40 Rejection of claim for failure to obtain foreign payment
(1) The Secretary may make a determination rejecting a claim for a social security payment if:
(a) the claimant has been given a notice under subsection 66(2); and
(b) the Secretary is not satisfied that the claimant has taken reasonable action to obtain a comparable foreign payment at the highest rate applicable to the claimant within the period specified in the notice.
(2) The Secretary may make a determination rejecting a claim for a social security payment if:
(a) the claimant has been given a notice under subsection 66(3); and
(b) the Secretary is not satisfied that the claimant’s partner has taken reasonable action to obtain a comparable foreign payment at the highest rate applicable to the partner within the period specified in the notice.
Division 2A—Employment pathway plans
Note: The powers of the Employment Secretary under this Division may be delegated under section 234 (including to a person engaged by an organisation that performs services for the Commonwealth).
Subdivision A—Entry into employment pathway plans
40A Requirement to enter into employment pathway plans
No existing employment pathway plan in force
(1) The Employment Secretary may require a person to enter into an employment pathway plan if an employment pathway plan is not in force in relation to the person and one of the following applies:
(a) either:
(i) the person is receiving, or has made a claim for, a jobseeker payment or a youth allowance; or
(ii) the Department is contacted by or on behalf of the person in relation to a claim for a jobseeker payment or a youth allowance;
(b) the person is someone to whom paragraph 500(1)(c) or (ca) of the 1991 Act applies and either:
(i) the person is receiving, or has made a claim for, parenting payment; or
(ii) the Department is contacted by or on behalf of the person in relation to a claim for parenting payment;
(c) the person is a nominated visa holder and either:
(i) the person is receiving, or has made a claim for, a special benefit; or
(ii) the Department is contacted by or on behalf of the person in relation to a claim for special benefit.
Existing employment pathway plan already in force
(2) If an employment pathway plan is in force in relation to a person, the Employment Secretary may require the person to enter into another plan instead of the existing one.
Notification of requirement
(3) The Employment Secretary must notify a person who is required to enter into an employment pathway plan of the requirement. The notification:
(a) must give the person the option of entering into the plan under section 40D; and
(b) may also give the person the option of entering into the plan under section 40E, taking into account the person’s circumstances.
40B Use of technological processes
(1) The Employment Secretary may arrange for the use of technological processes in relation to the following:
(a) persons entering into employment pathway plans under section 40D or 40E;
(b) the variation of such plans.
Note: A person does not enter into an employment pathway plan unless the person accepts such a plan: see paragraphs 40D(1)(a) and 40E(1)(c).
Arrangement not a legislative instrument
(2) If an arrangement under this section is made in writing, the arrangement is not a legislative instrument.
40C Use of questionnaire
(1) The Employment Secretary may arrange for the completion of a questionnaire in relation to the following:
(a) persons entering into employment pathway plans under section 40D or 40E;
(b) the variation of such plans.
(2) A questionnaire may relate to, but is not limited to, one or more of the employment pathway plan matters in relation to a person.
Note: For employment pathway plan matters, see section 40F.
(3) A purpose of the questionnaire is to obtain information for the purposes of working out under which section the person is able to enter into an employment pathway plan.
Arrangement not a legislative instrument
(4) If an arrangement under this section is made in writing, the arrangement is not a legislative instrument.
40D Employment pathway plans—plans developed by the Employment Secretary
(1) A person enters into an employment pathway plan under this section if:
(a) the person notifies the Employment Secretary that the person accepts the employment pathway plan developed by the Employment Secretary; and
(b) that acceptance occurs after one or more communications between the person and the Employment Secretary in relation to that plan.
Note: For variation of employment pathway plans, see section 40V.
Plan requirements
(2) The employment pathway plan developed by the Employment Secretary must contain one or more requirements that the person is required to comply with.
Note: See Subdivision B for limitations on the kind of requirements that can be contained in employment pathway plans.
Optional terms
(3) The employment pathway plan may also contain one or more terms that the person may, but is not required to, comply with.
Approval of requirements
(4) The requirements in the employment pathway plan are to be approved by the Employment Secretary. Those requirements must not be approved by the processes referred to in subsection 40B(1).
(5) The Employment Secretary must not approve requirements that are not suitable for the person. For this purpose, the Employment Secretary must take into account the following matters:
(a) the employment pathway plan matters in relation to the person;
(b) the person’s capacity to comply with the requirements;
(c) the person’s needs;
(d) any other matters that the Employment Secretary or the person considers relevant in the circumstances.
Note: For employment pathway plan matters, see section 40F.
(1) A person enters into an employment pathway plan under this section if:
(a) the person is given information as part of the processes referred to in subsection 40B(1) informing the person of the matters the person should consider in deciding whether to accept an employment pathway plan under this section; and
(b) a proposed employment pathway plan is produced as part of those processes that:
(i) contains one or more requirements that the person is required to comply with; and
(ii) may contain one or more terms that the person may, but is not required to, comply with; and
(c) after deciding the person is satisfied with that proposed employment pathway plan, the person accepts that plan as part of those processes.
Note 1: If the person does not want to accept the proposed employment pathway plan that is produced as part of those processes, the person can still enter into an employment pathway plan under section 40D.
Note 2: See Subdivision B for limitations on the kind of requirements that can be contained in employment pathway plans.
Note 3: For variation of employment pathway plans, see section 40V.
(2) This section does not prevent the person from entering into an employment pathway plan under section 40D after the person has entered into an employment pathway plan under this section.