(i) the cancellation is for an unemployment failure; and
(ii) during the 6 months ending on the day immediately before the person becomes unemployed, relocation assistance, for the employment to which the voluntary act or misconduct related, has been paid to or for the benefit of the person.
Note 1: If the person makes a claim for a participation payment, the post‑cancellation non‑payment period may affect the person’s start day for the claim (see clauses 5 and 5A of Schedule 2).
Note 2: For relocation assistance, see subsection 42AO(2).
Participation payment taken to not be cancelled for certain purposes during post‑cancellation non‑payment period
(6) Despite subsections (2) and (3), the participation payment is taken to not be cancelled for the purposes of the following provisions until the end of the post‑cancellation non‑payment period:
(a) a provision of the social security law, or the Family Assistance Act, that refers to a post‑cancellation non‑payment period or a compliance penalty period, other than a provision that is determined by the Minister under subsection 42AR(2) of this Act for the purposes of this paragraph;
(b) section 106B of this Act (automatic cancellation of certain concession cards);
(c) a provision of the social security law that is determined by the Minister under subsection 42AR(2) of this Act for the purposes of this paragraph.
Subdivision E—Miscellaneous
42AQ Persons for whom participation payments not payable taken to still be receiving payment for certain purposes
If, under this Division, a participation payment is not payable to a person for a period, then, for the purposes of the following provisions, the person is taken to be receiving that participation payment for that period:
(a) Subdivision B (except if the participation payment is not payable because of subsections 42AH(2) and 42AO(1) (unemployment preclusion periods));
(b) sections 63 and 64;
(c) any other provision of the social security law, or the Family Assistance Act, that is determined by the Minister under subsection 42AR(2) of this Act for the purposes of this paragraph.
42AR Minister to make determinations for purposes of this Division
(1) The Minister must, by legislative instrument, determine the following:
(a) for the purposes of paragraph 42AF(2)(a)—circumstances in which the Secretary must, or must not, be satisfied that a person has persistently committed mutual obligation failures;
(c) for the purposes of subsection 42AN(4):
(i) circumstances in which paragraph 42AN(3)(a) applies in relation to the reduction of an instalment for an instalment period; and
(ii) circumstances in which paragraph 42AN(3)(b) applies in relation to the reduction of an instalment for an instalment period.
(2) In addition, the Minister may, by legislative instrument, determine provisions of the social security law or the Family Assistance Act for the purposes of paragraph 42AP(6)(a) or (c) or 42AQ(c) of this Act.
42AS Relationship with section 80
Nothing in this Division affects the power of the Secretary to cancel or suspend a participation payment under section 80.
Note: However, the Secretary cannot suspend or cancel a participation payment under that section on the basis that the participation payment is not, or was not, payable because of the operation of this Division (see paragraph 80(1)(b)).
Division 3A—Compliance with participation payment obligations: declared program participants
Subdivision A—Introduction
42A Simplified outline of this Division
The Secretary may determine that a declared program participant commits a no show no pay failure, a connection failure, a reconnection failure or a serious failure.
A declared program participant commits such a failure by failing to comply with his or her obligations in relation to a participation payment. The participation payments are jobseeker payment and, for some people, youth allowance, parenting payment and special benefit.
For a no show no pay failure, a penalty amount is deducted from the participant’s participation payment.
For a connection failure, a requirement may be imposed on the participant (and if the participant fails to comply with the requirement, the participant commits a reconnection failure).
For a reconnection failure, generally a penalty amount is deducted from the participant’s participation payment until the participant complies with a requirement imposed on the participant.
For a serious failure, a participation payment is not payable to the participant for 8 weeks. The 8 week period may be ended in certain circumstances.
The Secretary may also determine that a declared program participant is unemployed as a result of a voluntary act or misconduct. If the Secretary does so, a participation payment is not payable to the participant for either 8 or 12 weeks, depending on the circumstances.
The Secretary may also determine that a participation payment is not payable to a declared program participant for a period because of certain failures. Once that period ends, the participant may be able to receive back pay. For a failure to attend an appointment, a penalty amount may be deducted from the participant’s participation payment.
42B Application of this Division only to declared program participants
This Division applies in relation to a person if the person is a declared program participant.
Subdivision B—No show no pay failures
42C No show no pay failures
(1) The Secretary may determine that a person commits a no show no pay failure on a day if:
(a) the person commits any of the following failures:
(i) the person fails to participate, on the 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;
(ii) the person fails to comply, on the day, with a serious failure requirement imposed on the person;
(iii) the person commits misconduct, on the day, while participating in an activity referred to in subparagraph (i) or while purporting to comply with a serious failure requirement imposed on the person;
(iv) the person intentionally acts in a manner on the day (including by failing to attend a job interview), and it is reasonably foreseeable that acting in that manner could result in an offer of paid work in Australia (except particular paid work that is unsuitable to be done by the person) not being made to the person; and
(b) the person receives an instalment of a participation payment for the instalment period in which the day occurs.
Note: A penalty amount is deducted from the person’s participation payment for a no show no pay failure (see section 42D).
(2) Without limiting subparagraph (1)(a)(i), a person fails to participate in an activity if:
(a) the person fails to attend the activity at all; or
(b) the person is not punctual in attending the activity.
Limitations on determining no show no pay failures
(3) If:
(a) more than one subparagraph of paragraph (1)(a) applies to a person on a day; or
(b) a subparagraph of paragraph (1)(a) applies more than once to a person on a day;
then the Secretary may only determine that the person commits one no show no pay failure on the day.
Note: However, the Secretary may determine that a person commits no show no pay failures on 2 or more days.
(4) Despite subsection (1), the Secretary must not determine that a person commits a no show no pay failure on a day if:
(a) both of the following apply:
(i) subparagraph (1)(a)(i), (ii) or (iv) applies;
(ii) the person satisfies the Secretary that the person has a reasonable excuse for the failure; or
(b) the person is a new apprentice; or
(ba) the person is someone to whom section 42SB applies; or
(c) the day is in a reconnection failure period for the person.
Note: The Secretary must take certain matters into account for the purposes of paragraph (4)(a) and may be prohibited from taking other matters into account for those purposes (see section 42U). For the purposes of paragraph (4)(a), see also section 42UA (about prior notification of excuses).
Determining an instalment period
(5) The Secretary must include in a determination under this section the instalment period in which a penalty amount (see section 42T) for the no show no pay failure is to be deducted from the person’s instalment of a participation payment, provided that the penalty amount may not be deducted until at least the instalment after the first instalment made following notification to the person of the no show no pay failure.
42D Deducting the penalty amount
If the Secretary determines that a person commits a no show no pay failure, the person’s penalty amount (see section 42T) for the no show no pay failure is to be deducted from the person’s instalment of a participation payment for the instalment period determined under subsection 42C(5).
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 C—Connection and reconnection failures
42E Connection failures
(1) The Secretary may determine that a person commits a connection failure if:
(a) the person commits any of the failures mentioned in subsection (2); and
(b) the person receives an instalment of a participation payment for the instalment period in which the person commits the failure.
Note: A reconnection requirement may be imposed for a connection failure (see section 42G).
(2) For the purposes of subsection (1), the failures are the following:
(a) the person fails to comply with a requirement that was notified to the person under subsection 63(2) or (4);
(b) the person fails to comply with a requirement, under section 40A, to enter into an employment pathway plan;
(c) 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;
(d) the person is issued with a notice under subsection 42F(1) and fails to comply with it within the period specified in the notice;
(e) the person fails to comply with subsection 42F(2);
(f) the person fails to comply with a requirement included in an employment pathway plan that is in force in relation to the person to undertake a certain number of job searches per fortnight;
(g) the person fails to comply with a requirement included in an employment pathway plan that is in force in relation to the person:
(i) to keep a record of the person’s job searches in a document referred to in the plan as a job seeker diary; and
(ii) to return the job seeker diary to the Department at the end of the period specified in the plan.
(3) The Secretary may determine that a person commits 2 or more connection failures on a day.
Limitations on determining connection failures
(4) Despite subsection (1), the Secretary must not determine that a person commits a connection failure if:
(a) the person satisfies the Secretary that the person has a reasonable excuse for the failure; or
(b) both of the following apply:
(i) the person’s failure is a failure to comply with a requirement under section 40A to enter into an employment pathway plan;
(ii) a youth allowance is not payable to the person for the instalment period in which the person commits the failure because of section 547AA of the 1991 Act; or
(c) both of the following apply:
(i) the person’s failure is a failure to comply with a requirement under section 40A to enter into an employment pathway plan;
(ii) a jobseeker payment is not payable to the person for the instalment period in which the person commits the failure because of section 615 of the 1991 Act; or
(d) the person is a new apprentice; or
(da) the person is someone to whom section 42SB applies; or
(e) in the case of a failure under paragraphs (2)(d) to (g)—the person is receiving parenting payment.
Note: The Secretary must take certain matters into account for the purposes of paragraph (4)(a) and may be prohibited from taking other matters into account for those purposes (see section 42U). For the purposes of paragraph (4)(a), see also section 42UA (about prior notification of excuses).
42F Requiring a person to apply for job vacancies
(1) The Secretary may notify a person that the person must apply for a particular number of advertised job vacancies in the period specified in the notice if:
(a) the person is required to satisfy the employment pathway plan requirements; and
(b) the person is receiving a participation payment other than a parenting payment.
(2) For each such job vacancy the person (the job applicant) applies for during that period, the job applicant must give the Secretary a written statement from the person or body offering the job vacancy that confirms that the job applicant applied for the job vacancy.
(3) The statement from the person or body offering the job vacancy must be in a form approved by the Secretary.
(4) Subsection (2) does not apply to a 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.
42G Reconnection requirements
If:
(a) the Secretary determines that a person commits a connection failure; or
(b) a 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
(c) a 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
(ca) a person fails to attend an appointment that the person is required to attend by a notice under subsection 63(2); or
(d) a person fails to comply with any other requirement that was notified to the person under subsection 63(2) or (4);
then:
(e) if, in relation to a failure referred to in paragraph (b), (c) or (ca), the Secretary determines, under subsection 42SA(1), that a participation payment is not payable to the person—the Secretary must require the person to comply with a requirement (the reconnection requirement); or
(f) in any other case—the Secretary may require the person to comply with a requirement (the reconnection requirement).
Note: The Secretary must notify the person of the effect of not complying with the reconnection requirement (see section 42K).
42H Reconnection failures
(1) The Secretary may determine that a person commits a reconnection failure if:
(a) the person is required to comply with:
(i) a reconnection requirement; or
(ii) a further reconnection requirement; and
(b) the person fails to comply with the requirement.
Note: A further reconnection requirement may be imposed, and a penalty amount is deducted from the person’s participation payment, for a reconnection failure (see sections 42J and 42L).
(2) The Secretary may determine that a person commits 2 or more reconnection failures on a day.
Limitation on determining reconnection failures
(3) Despite subsection (1), the Secretary must not determine that a person commits a reconnection failure if:
(a) the person satisfies the Secretary that the person has a reasonable excuse for the failure; or
(b) the person is someone to whom section 42SB applies.
Note: The Secretary must take certain matters into account for the purposes of paragraph (a) and may be prohibited from taking other matters into account for those purposes (see section 42U). For the purposes of paragraph (a), see also section 42UA (about prior notification of excuses).
Reconnection failure period
(4) If the Secretary determines that a person commits a reconnection failure, the person commits the failure during the period (the reconnection failure period) that:
(a) begins on the day the person commits the failure; and
(b) ends on:
(i) the day before the person complies with any further reconnection requirement imposed on the person in relation to the reconnection failure; or
(ii) if the person fails to comply with a further reconnection requirement imposed on the person in relation to the reconnection failure, and the person satisfies the Secretary that the person has a reasonable excuse for the failure—the day before the person fails to comply with the requirement.
Determining an instalment period
(5) The Secretary must include in a determination under this section the instalment period in which a penalty amount (see section 42T) for the reconnection failure is to be deducted from the person’s instalment of a participation payment.
42J Further reconnection requirements
(1) The Secretary may require a person to comply with a further requirement (the further reconnection requirement) if the Secretary determines that:
(a) the person fails to comply with a reconnection requirement imposed on the person; or
(b) the person fails to comply with an earlier further reconnection requirement imposed on the person.
Note: The Secretary must notify the person of the effect of not complying with the further reconnection requirement (see section 42K).
(2) The Secretary may impose a further reconnection requirement on a person under subsection (1) even if the person satisfies the Secretary that the person has a reasonable excuse for failing to comply with the reconnection requirement or earlier further reconnection requirement.
42K Notification requirements
(1) The Secretary must notify the person that a failure to comply with a reconnection requirement or a further reconnection requirement imposed on the person might result in either or both of the following:
(a) a penalty amount being deducted from the person’s participation payment;
(b) the person’s participation payment not being payable to the person for a period.