(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).
Determining an instalment period
(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:
Start formula 1.4 times start fraction Amount of the person's instalment of participation payment for the instalment period in which the day occurs over Number of days in the person's instalment period end fraction end formula
(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:
Start formula 1.4 times start fraction Amount of the person's instalment of participation payment for the instalment period in which the day occurs over Number of days in the person's instalment period end fraction end formula
(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:
Start formula 1.4 times start fraction Amount of the person's instalment of participation payment that would, apart from subsection 42SA(2), be payable to the person for the instalment period in which the day occurs over Number of days in the person's instalment period end fraction end formula
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.
42V Deduction from any participation payment
The balance of a person’s penalty amount for a no show no pay failure, a reconnection failure or a non‑attendance failure that is not reduced to nil under section 42D, 42L or 42SD is to be deducted from:
(a) the instalments of the participation payment referred to in that section for any later instalment periods (until the balance is reduced to nil); and
(b) if the balance is not reduced to nil under paragraph (a)—the instalments of any other participation payment paid to the person (until the balance is reduced to nil).
42W Penalty amount not a debt
To avoid doubt, a penalty amount is not a debt owed to the Commonwealth under Part 5.2 of the 1991 Act.
42X Payability
A participation payment remains payable even if it is reduced to nil as a result of deducting a penalty amount, or the balance of a penalty amount, for a no show no pay failure, a reconnection failure or a non‑attendance failure.
42Y Day of determination
For the purposes of paragraph 42M(1)(a), 42P(2)(a), 42Q(2)(c) or 42S(3A)(b), the day the Secretary makes the determination is the day the Secretary originally makes the determination (even if another decision in relation to the determination is later made on review).
42YA Relationship between Subdivisions of this Division
No Subdivision of this Division limits any other Subdivision of this Division.
42Z Relationship with section 80
Nothing in this Division affects the power of the Secretary to cancel or suspend a participation payment under section 80 of this Act.
Division 4—Payment of social security payment
43 Payment by instalments
Payment in arrears in relation to periods
(1) A social security periodic payment is to be paid:
(a) in arrears; and
(b) by instalments relating to such periods (not exceeding 14 days) as the Secretary determines.
Timing of payments of instalments
(2) Subject to sections 52 and 53, instalments of a social security periodic payment are to be paid at such times as the Secretary determines.
Total instalment relating to a period
(3) Subject to subsection (4), the amount that is to be paid to a person as an instalment of a social security periodic payment in relation to a period is the total of the amounts of the social security periodic payment (calculated by reference to the daily rate of payment applicable to each day) payable to the person for days in that period on which the social security periodic payment was payable to the person.
Weekly payments of a social security periodic payment
(3A) The Secretary may determine that a person is to be paid the total amount of the social security periodic payment relating to an instalment period of 14 days determined under subsection (1) in 2 payments (the part payments) if the person is a member of a class specified under subsection (3B).
(3B) The Minister may by legislative instrument specify a class of persons for the purposes of subsection (3A).
(3C) The first of the part payments:
(a) is not to exceed the total of the amounts of the social security periodic payment (calculated by reference to the daily rate of payment applicable to each day, subject to subsections (4) and (5A)) payable to the person for days that:
(i) are days on which the social security periodic payment was payable to the person; and
(ii) are included in the first 7 days of the instalment period; and
(b) is to be paid at a time determined by the Secretary that is after the first 7 days of the instalment period.
(3D) The other of the part payments:
(a) is the excess of the amount that is to be paid to a person as the instalment of the social security periodic payment in relation to the instalment period (see subsection (3)) over the first of the part payments; and
(b) is to be paid at a time determined by the Secretary that is after the end of the instalment period.
(3E) If the person is, or is to be, paid the total amount of the social security periodic payment relating to the instalment period in part payments, then it is taken for the purposes of the social security law that:
(a) a single instalment of the social security periodic payment is, or is to be, paid in relation to the period; and
(b) that instalment is, or is to be, paid when the last of the part payments is, or is to be, made; and
(c) that instalment is equal to the total of the part payments.
Note: The total of the part payments equals the amount worked out under subsection (3) (as affected by subsection (4), if relevant) as the amount to be paid to the person as the instalment of the social security periodic payment in relation to the instalment period.
(3F) However, the following provisions of this Act (about deductions from instalments) apply as if each of the part payments were a separate instalment:
(a) section 61;
(b) Division 5 of Part 3B;
(c) subsection 238(2).
Minimum daily rate
(4) If:
(a) either or both of the following amounts (the added amounts) are added to a person’s maximum basic rate for a particular day in working out the amount of an instalment of a social security payment:
(i) an amount of pharmaceutical allowance;
(ii) a pension supplement amount; and
(aa) the social security payment:
(i) is not a social security pension; or
(ii) is a disability support pension to which subsection 1066A(1) or 1066B(1) of the 1991 Act applies; or
(iii) if the person has not reached pension age on the day—is a pension PP (single); and
(b) if an added amount is a pension supplement amount used by the Rate Calculator to produce an annual rate—the total of the added amounts is more than the person’s pension supplement basic amount; and
(c) there is no election by the person under subsection 1061VA(1) of the 1991 Act in force on that day; and
(d) apart from this subsection, the portion of the instalment corresponding to that day would be less than the person’s minimum daily rate, but more than a nil amount;
the amount of that portion of the instalment is to be increased to the person’s minimum daily rate.
(5) In subsection (4):
minimum daily rate, for a person, means:
(a) if an amount of pharmaceutical allowance is an added amount:
(i) if the Rate Calculator for the social security payment produces a fortnightly rate—1/14 of that amount; or
(ii) if the Rate Calculator for the social security payment produces an annual rate—1/364 of that amount; or
(b) if a pension supplement amount is the only added amount—1/364 of the person’s minimum pension supplement amount.
(5AA) If:
(a) either or both of the following amounts (the added amounts) are added to a person’s maximum basic rate for a particular day in working out the amount of an instalment of a social security pension:
(i) a pension supplement amount;
(ii) energy supplement; and
(aa) the social security pension:
(i) is not a disability support pension to which subsection 1066A(1) or 1066B(1) of the 1991 Act applies; and
(ii) if the person has not reached pension age on the day—is not a pension PP (single); and
(b) if one of the added amounts is a pension supplement amount used by the Rate Calculator to produce an annual rate—the pension supplement amount is more than the person’s pension supplement basic amount; and
(c) there is no election by the person under subsection 915A(1) or 1061VA(1) of the 1991 Act in force on that day; and
(d) apart from this subsection, the portion of the instalment corresponding to that day would be less than the person’s minimum daily rate, but more than a nil amount;
the amount of that portion of the instalment is to be increased to the person’s minimum daily rate.
(5AB) For the purposes of subsection (5AA), a person’s minimum daily rate is 1/364 of the total of:
(a) the person’s minimum pension supplement amount, if a pension supplement amount is an added amount; and
(b) the person’s energy supplement, if energy supplement is an added amount.
No reduction of portion of quarterly pension supplement relating to a day
(5A) If:
(a) an election by the person under subsection 1061VA(1) of the 1991 Act is in force on a particular day; and
(b) apart from this subsection, the portion of the instalment of the person’s quarterly pension supplement that corresponds to that day would be reduced under subsection 1210(3) of the 1991 Act, but not reduced to a nil amount;
the amount of that portion of the instalment is not to be reduced under subsection 1210(3) of the 1991 Act.
No reduction of portion of quarterly energy supplement relating to a day
(5B) If:
(a) quarterly energy supplement is payable to a person for a particular day; and
(b) the social security payment to which the quarterly energy supplement relates:
(i) is a social security pension; and
(ii) is not a disability support pension to which subsection 1066A(1) or 1066B(1) of the 1991 Act applies; and
(iii) if the person has not reached pension age on the day—is not a pension PP (single); and
(c) apart from this subsection, the portion of the instalment of the person’s quarterly energy supplement that corresponds to that day would be reduced under subsection 1210(3A) of the 1991 Act; and
(d) the reduction of the main rate mentioned in subparagraph 1210(3A)(b)(ii) would not be to a nil amount;