Social Security (Administration) (Persistent Non-compliance) Determination 2025

The determination uses a small set of defined legal concepts drawn from the statute and specified within the instrument (s 5; s 6). These concepts determine what the Secretary must consider and how to measure the time window for assessment.

• Act: shorthand in the determination for the Social Security (Administration) Act 1999 (s 5). The determination is made under that Act and must be read as an instrument operating within its framework (s 3).

• Comprehensive compliance assessment: the instrument refers repeatedly to a comprehensive compliance assessment and requires the Secretary to take the findings of the current comprehensive compliance assessment into account (s 6(1)(a)). The determination does not define that term itself; it adopts the meaning given by section 42NA of the Act (s 5). Users therefore must consult s 42NA of the Act for the precise statutory definition and any procedural detail attached to that assessment.

• Failure: the instrument defines failure as a failure to comply with an obligation in relation to a participation payment, and expressly includes no show no pay failures, non-attendance failures, connection failures and reconnection failures (s 5). The definition signals which operational incidents the Secretary is to evaluate when counting failures and assessing patterns.

• Assessment period: central to counting failures, this is ordinarily the six months before the start of the current comprehensive compliance assessment (s 6(1)(b)(i)). The assessment period is truncated where a serious failure period occurred in that six months; in that case the assessment period runs from the end of the serious failure period until the start of the current comprehensive compliance assessment (s 6(1)(b)(ii)). The instrument does not define "serious failure period" within its own text; therefore any meaning derives from the Act or related instruments.

• Three or more failures threshold: the Secretary must consider whether, during the assessment period, the person has committed three or more failures (s 6(1)(b)). The instrument treats that threshold as a trigger for further inquiry; if the threshold is reached, the Secretary must further consider the number of failures and whether they form a pattern or are a single instance (s 6(1)(c)). The determination does not convert the threshold into an automatic finding of persistent non-compliance.

• Pattern versus single instance: where there are three or more failures, the instrument requires a qualitative assessment of whether the failures demonstrate a pattern of non-compliance or amount to a single instance (s 6(1)(c)(ii)). The instrument provides an example to illustrate that prior clustered failures, followed by sustained compliance, would not automatically produce a finding of persistent non-compliance.

• Extent of otherwise compliance: the Secretary must consider the broader compliance behaviour of the person during the assessment period, as a counterweight to discrete failures (s 6(1)(d)).

• Limits on what may be taken into account: the instrument expressly incorporates a statutory limitation from subsection 42M(2) of the Act: failures outside the person’s control must not be taken into account, and only failures that occurred intentionally, recklessly or negligently may be considered (Note 1).

Two operative structural features follow from these concepts. First, the determination prescribes inputs and a temporal rule for assessing persistent non-compliance, which constrains but does not displace substantive judgment. Second, several key terms used in those inputs are defined in the Act rather than in the determination, so interpreting and applying the determination requires cross-reference to the Act for definitions such as comprehensive compliance assessment and serious failure period.

The determination directly affects three categories of actors: persons subject to participation payment obligations, the Secretary (and departmental decision-makers) who must make persistent non-compliance decisions, and entities that capture or maintain records of participation and failures.

• Persons receiving participation payments: the instrument governs how the Secretary determines whether such a person has persistently failed to comply with obligations in relation to a participation payment (s 6). The determination is phrased around failures in relation to a participation payment and employs the statutory tests to evaluate persistent non-compliance; therefore recipients whose conduct includes no show no pay, non-attendance, connection or reconnection failures are directly within the scope of the determination (s 5; s 6(1)(b)).

• The Secretary and departmental decision-makers: the determination expressly directs the Secretary to take specified matters into account when deciding whether a person persistently failed to comply under subsection 42M(4) of the Act (s 3; s 6(1)). That places an administrative obligation on the Secretary to ensure decision records demonstrate consideration of the current comprehensive compliance assessment, the count and character of failures in the assessment period, and the extent of other compliance. The instrument also allows the Secretary to disregard matters that are not relevant in the particular case (s 6(2)), and requires adherence to the statutory limitation on considering failures outside the person’s control or without the requisite mental state (Note 1).

• Service providers, employers, and program administrators: the failure types included in the definition (no show no pay, non-attendance, connection and reconnection failures) are operational events often recorded by providers, Australian Government service delivery staff, or automated systems (s 5). These entities will be affected because their records may be the primary evidence used to count failures and to establish whether there is a pattern. The determination places a premium on the quality and timing of such records, because the assessment period is bounded temporally relative to the start of the current comprehensive compliance assessment (s 6(1)(b)).

Additionally, the determination has indirect consequences for advocates, caseworkers and advisers who represent or assist persons subject to participation payment obligations. They will need to engage with the timing rules and the Note 1 limitation on considering failures outside a person’s control, and seek to ensure decision-makers can identify whether failures were intentional, reckless or negligent, or were outside the person’s control (Note 1).

The instrument applies to decisions made on or after 1 October 2025 regardless of when the failures occurred (s 7). That means persons whose conduct pre-dates commencement may still find decision-makers applying the prescribed considerations to their matter, so temporal exposure extends to pre-commencement conduct assessed in post-commencement decisions.

Finally, the repeal of the 2015 Employment Determination (Schedule 1) means that anyone previously relying on that instrument’s terms must now work under the new criteria set out here for decisions made on or after the commencement date.

This determination sets administrative duties for the Secretary and prescribes the evidentiary matters the Secretary must consider; it does not itself create statutory rights, nor does it list procedural entitlements such as notice or review mechanisms. The duties and constraints in the determination are as follows.

Secretary’s duties

• Take into account specified matters: the Secretary must take into account the findings of the most recent comprehensive compliance assessment, whether the person committed three or more failures during the assessment period, the number of failures and whether they demonstrate a pattern if three or more were committed, and the extent of other compliance during the assessment period (s 6(1)(a)-(d)). These are mandatory considerations under subsection 42M(4) as implemented by this determination (s 3).

• Apply the assessment period rule: the Secretary must assess failures in the defined assessment period, ordinarily the six months before the start of the current comprehensive compliance assessment, but with the adjustment if a serious failure period occurred in that six months (s 6(1)(b)).

• Exclude matters outside the Act’s limits: consistent with subsection 42M(2) of the Act, the Secretary must not take into account failures that are outside the person’s control and may only take into account failures that occurred intentionally, recklessly or negligently (Note 1).

• Exercise relevance-based discretion: the Secretary is not bound to take into account every matter listed where in the particular case it is not relevant; subsection 6(2) permits omission of listed matters if irrelevant in the case at hand (s 6(2)).

Duties not imposed by the determination

• The instrument does not set a duty to impose a specific sanction or to find persistent non-compliance if the listed conditions are met; it only structures the factors to be considered. The Secretary retains evaluative discretion on outcome and weighting of factors.

• The determination does not prescribe procedural duties such as notice, hearing, or review pathways for affected persons; those procedural features, if any, are set out elsewhere in the Act or in other instruments, not in this determination.

Rights and limitations that follow from the determination

• Persons have the protective limitation that failures outside their control must not be taken into account, and only failures with the stated mental state may be considered (Note 1). That functions as a statutory limit on evidential matters the Secretary may rely on, and therefore affords those persons a substantive protection in the decision-making calculus.

• The requirement to consider the person’s wider compliance during the assessment period (s 6(1)(d)) means that isolated failures may be assessed in context, which can operate as a practical safeguard against a rigid counting rule producing a finding of persistent non-compliance.

• Because the instrument refers to the current comprehensive compliance assessment (s 6(1)(a)), persons are affected by the timing and content of that assessment; access to the findings is likely critical to putting a case about whether failures were within control or whether there is a pattern. The determination itself does not specify disclosure or access obligations.

• The transitional provision (s 7) means persons may be subject to this determination’s framework for decisions about conduct predating commencement; that is a rights-relevant feature because it defines the normative approach decision-makers will adopt when evaluating earlier conduct.

Overall, the determination imposes a duty on the Secretary to structure decision-making around specified inputs and limits, while preserving broad administrative discretion on outcome and without creating standalone procedural rights within the text of the instrument.

This determination does not itself impose penalties or set enforcement mechanisms; instead it operates as an administrative instrument that structures how the Secretary determines whether persistent non-compliance under the Act exists. The enforcement consequences that follow a finding of persistent non-compliance are not contained in the determination, rather they derive from the Social Security (Administration) Act 1999 and any connected statutory regime (s 3).

What the determination does for enforcement is narrow and procedural: it prescribes the matters the Secretary must take into account before deciding that persistent non-compliance has occurred (s 6(1)). By doing so, the instrument affects enforcement indirectly, because the Secretary’s decision whether to find persistent non-compliance is the gateway to any statutory penalties or administrative sanctions established in the Act.

Two statutory limits affect what can be used to support enforcement findings. Note 1, which refers to subsection 42M(2) of the Act, requires that failures outside the person’s control must not be counted and that only failures that occurred intentionally, recklessly or negligently may be taken into account. That constraint narrows the evidentiary basis for enforcement decisions and imposes a legal threshold on the mental state required to justify counting a failure.

The determination sets a numerical trigger but not an automatic sanction. The Secretary must consider whether a person committed three or more failures during the assessment period (s 6(1)(b)), and if so must then examine the number and pattern of those failures (s 6(1)(c)). The presence of three failures is a statutory input to the decision; the instrument does not require the Secretary to translate that input into a penalty. Therefore enforcement outcomes remain contingent on the Secretary’s substantive assessment and on any other statutory rules in the Act.

The instrument contains a temporal rule that affects enforcement reach. Section 7 provides that the determination applies to decisions made on or after 1 October 2025 whether the relevant failures occurred before that date or not. That means enforcement actions taken after commencement may rely on the criteria in this determination even when the underlying incidents pre-date the instrument. Practitioners should note that the instrument governs decision methodology for post-commencement enforcement decisions, not the timing of the underlying conduct.

Finally, the determination repeals the prior 2015 Employment Determination in full (Schedule 1). Enforcement outcomes based on the earlier instrument for decisions made after commencement will be governed by this determination rather than the repealed instrument. The determination does not specify appeal routes, timelines for enforcement, or procedural safeguards; those matters are outside its text and must be sought in the Act or other instruments.

This determination is an instrument made under subsection 42M(4) of the Social Security (Administration) Act 1999 and is expressly tied to that statutory framework (s 3). Its interaction with other provisions of the Act is direct and functional: it operationalises one of the decision-making steps the Secretary must take when applying the Act’s persistent non-compliance rules, by specifying the matters that must be considered under section 42M(4) (s 6(1)).

Key interactions within the Act

• Section 42M: the determination is made under subsection 42M(4). It engages subsection 42M(2) by incorporating the prohibition on taking into account failures outside a person’s control and the requirement that only failures that were intentional, reckless or negligent may be considered (Note 1). The practical effect is that the determination refines the statutory discretion created by s 42M by listing required considerations and by importing statutory limits into the administrative checklist.

• Section 42NA: the determination depends on the statutory concept of a comprehensive compliance assessment, adopting the meaning given by s 42NA (s 5). Therefore any procedural, definitional or evidentiary rules that govern comprehensive compliance assessments under s 42NA will directly affect how the Secretary applies this determination, because the “current comprehensive compliance assessment” is the primary factual input the Secretary must consider (s 6(1)(a)).

• Serious failure period: the assessment period is sensitive to the existence of a serious failure period in the six months before the current comprehensive compliance assessment, but the determination does not define "serious failure period". The meaning, timing and consequences of a serious failure period are therefore determined elsewhere in the Act or associated instruments, and will control how s 6(1)(b)(ii) is applied.

Interaction with administrative law principles

• Relevance and reasoned decision-making: the determination requires the Secretary to take specific matters into account, which creates a structured decision-making obligation. Administrative law principles of relevance, proportionality and reasoned decision-making will likely intersect with this obligation because decision-makers must show consideration of the specified matters. The instrument does not itself set out reasons requirements, but the mandatory considerations it prescribes will feed into judicial review questions about whether the Secretary applied the correct legal tests and considered relevant factors.

• Temporal application and non-retrospectivity: the determination’s transitional provision (s 7) states the instrument applies to decisions made on or after 1 October 2025 whether relevant failures occurred before that date or not. The determination therefore governs the decision-making method for post-commencement decisions, and does not purport to retrospectively alter past decisions. Interaction with broader legal principles about retrospective legislative effect is limited by the text: the instrument applies its decision framework to post-commencement decisions.

Interaction with other instruments

• Repeal of earlier determination: Schedule 1 repeals the Social Security (Administration) (Persistent Non-compliance) (Employment) Determination 2015 (No. 1) in its entirety. That means previous criteria in that instrument no longer apply to decisions made on or after commencement and that any interaction between the 2015 instrument and other legislative instruments has been superseded by this determination for future decisions (Schedule 1).

Limits of interaction

• No change to sanctions or procedural rights: the determination does not create new sanctions, does not alter statutory penalties, and does not set procedural rights. Any interaction with penalty provisions, appeal processes, or review mechanisms in the Act is indirect: the determination influences how the Secretary decides whether the statutory criteria for enforcement are met, but does not itself change the statutory architecture for penalties or reviews.

In practice, therefore, the determination should be read together with the relevant provisions of the Act (notably s 42M and s 42NA), and with any other statutory or regulatory instruments that define terms used here, such as "serious failure period", or that set out procedural entitlements for affected persons.

The text of the determination contains limited but concrete amendment history and transitional detail.

• Commencement and original making: the instrument’s commencement table records that the whole of this determination commences, or is taken to have commenced, on 1 October 2025 (s 2). The table is explicitly described as relating only to provisions "as originally made" and the note in s 2(2) states that later amendments will not be reflected in that table in published versions. Therefore the recorded commencement is the operative start date for this version of the instrument.

• Authority for amendment: the determination is made under subsection 42M(4) of the Social Security (Administration) Act 1999 (s 3). Section 4 provides that each determination specified in a Schedule to this determination is amended or repealed as set out in the applicable items in the Schedule (s 4). That is the mechanism by which this instrument effects any modifications listed in its Schedules.

• Repeal of a predecessor instrument: Schedule 1 expressly repeals the Social Security (Administration) (Persistent Non-compliance) (Employment) Determination 2015 (No. 1) in its entirety. The Schedule provides a single item: "The whole of the determination" followed by "Repeal the determination" (Schedule 1). That is a complete repeal of the 2015 instrument, so any decisions made under that instrument prior to commencement will not be governed by it for decisions made on or after 1 October 2025.

• Transitional application: section 7 sets transitional arrangements for the application of the determination. It requires that the determination applies in relation to decisions made on or after 1 October 2025 whether the relevant failures occurred before that date or not (s 7). This clause affects how the new criteria are applied to matters with pre-commencement conduct.

• Notes about the commencement table: section 2(2) clarifies that any information in column 3 of the commencement table is not part of the determination and that the table will not be amended to reflect later changes. This is a drafting and publication detail, but it means the table is a static record of original commencement rather than a dynamic history of amendments.

No other amendments or prior versions are set out within the text of this determination. The instrument itself provides its own repeal of a prior determination and records its commencement; it does not catalogue prior amendments to itself because it is newly made and the commencement table is fixed as originally published.

Practitioners should therefore note that the operative amendment history in the instrument is confined to the repeal of the 2015 Employment Determination and the instrument’s own commencement and transitional rules. Any other historical changes to the broader legislative framework must be found in the Act or in other instruments, not in this determination.

The determination’s text contains no references to judicial decisions, no recitals of prior litigation, and no citations to case law. It names only statutory provisions and an earlier instrument which it repeals. Therefore, within the source document there is no litigation history to report concerning the interpretation, validity, or application of this determination.

Consequences of the absence of litigation history in the instrument

• No settled judicial interpretation: because the instrument itself does not cite or summarise any judicial authority, there is no on-the-record interpretation of its clauses in the text. That means that, as of the determination’s making, its application and finer points of interpretation have not been judicially tested within the document itself.

• Reliance on statutory framework for legal questions: legal questions about the interpretation of terms used in the determination, such as "comprehensive compliance assessment", "serious failure period", or the required mental states (intentional, reckless, negligent), must be resolved by reference to the Act and any relevant case law interpreting those statutory provisions. The determination itself points to the Act for definitions (s 5) and for the limits on matters that may be taken into account (Note 1, referencing subsection 42M(2)).

• Practical implication for litigants and advisers: absence of case law in the instrument is not the same as absence of litigation risk. The Secretary’s decisions made using this instrument may be subject to judicial review or merits review in the same ways as other administrative decisions under the Act, and judicial scrutiny will focus on whether the Secretary took the required matters into account, whether prohibited matters were considered, and whether the decision was reasonable and lawful in context. The determination creates specific mandatory considerations, which in turn create discrete points of legal challenge if a decision-maker fails to consider them.

• No documented precedential guidance within the instrument: because the instrument includes an example to illustrate how patterns of failures might be viewed (s 6(1)(c) Example), but includes no case citations, practitioners must rely on the Act, administrative law principles, departmental practice statements, and any future case law for authoritative interpretation.

In short, the determination itself provides no litigation history. Any litigation relating to how the determination is applied will appear in external case law and review decisions not contained within the instrument. Practitioners should expect that legal contests will concern the Secretary’s adherence to the mandatory considerations, the factual determination of whether failures were outside the person’s control, and the timing and effect of the assessment period rules in s 6(1)(b).

The text creates several practical traps and points where stakeholders commonly misread the instrument if they rely only on a superficial reading. The following are precise, source-grounded issues to watch.

1. The three-or-more threshold is a trigger for further inquiry, not an automatic finding. Section 6 requires the Secretary to consider whether, during the assessment period, the person committed three or more failures (s 6(1)(b)). If that threshold is met, the Secretary must then consider the number of failures and whether they show a pattern or are a single instance (s 6(1)(c)). The instrument’s example expressly shows that earlier clustered failures followed by compliance do not automatically equate to persistent non-compliance. Therefore counting failures without considering pattern and overall compliance will misapply the instrument.

2. The assessment period is not always a simple six months. The default is the six months before the start of the current comprehensive compliance assessment (s 6(1)(b)(i)). However, if the person incurred a serious failure period during those six months, the assessment period becomes the period from the end of that serious failure period until the start of the current comprehensive compliance assessment (s 6(1)(b)(ii)). Because "serious failure period" is not defined in the determination, practitioners must cross-check the Act and any related instruments for its meaning and triggering conditions. Mis-timing the assessment window is a common source of error.

3. Failures outside the person’s control cannot be counted; only failures with the required mental state may be considered. Note 1, referring to subsection 42M(2) of the Act, bars considering failures outside the person’s control and permits considering only failures that occurred intentionally, recklessly or negligently. Administrative decision-makers must make findings about control and mental state before counting a failure, and records should reflect that analysis. Treating every recorded absence as a countable failure without examining control and mental state will misapply the statutory limitation.

4. The instrument applies to decisions made after 1 October 2025 even if the conduct predates that date. Section 7’s transitional provision means decisions taken after commencement will be governed by this determination’s decision framework irrespective of when the failures occurred. That creates a temporal exposure for persons with older conduct, and practitioners must prepare to have pre-commencement conduct assessed under the new criteria. Assume that pre-commencement records will matter for post-commencement decisions.

5. The instrument prescribes matters to be taken into account but not the weight to be applied. The Secretary must take certain matters into account (s 6(1)) but the determination does not state how much weight each matter receives. That leaves considerable evaluative discretion and means that challenge points will often be about whether the Secretary gave appropriate weight to relevant matters, rather than whether a matter was considered at all.

6. Repeal of the 2015 instrument removes any reliance on its criteria for post-commencement decisions. Schedule 1 repeals the earlier Employment Determination in full. Practitioners who continue to rely on the 2015 instrument for guidance on post-commencement decisions risk misapplication.

7. The determination depends on other undefined statutory terms. The instrument imports meanings from the Act for "comprehensive compliance assessment" (s 5) and relies on "serious failure period" without defining it; therefore correct application requires cross-reference to the Act and possibly to other instruments. Missing that linkage can produce interpretative errors.

8. The Secretary may omit matters that are not relevant in a particular case. Section 6(2) allows the Secretary not to take into account a matter listed in s 6(1) if it is not relevant in that case. This is a flexible clause that can be used legitimately, but it is also a potential ground for challenge if a decision-maker omits a listed matter without a clear reasoned basis for irrelevance.

9. The instrument is silent on procedural protections and evidence standards. Because the determination does not specify notice, disclosure, or evidence rules, those procedural matters remain governed by the Act and general administrative law. Practitioners should therefore ensure they understand the broader statutory framework and any departmental guidance covering process, because the determination does not fill that gap.

10. The example included is illustrative, not normative. The example under s 6(1)(c) is hypothetical and demonstrates that prior clustered failures followed by compliance would not necessarily support a finding of persistent non-compliance. However, it is not a binding rule; it is an illustrative aid. Decision-makers can reach different results depending on the full facts, and judges can interpret the illustration in light of statutory language.

These "gotchas" are grounded in the text and arise from the interaction of counting rules, temporal framing, mental-state limits, and the dependence of the determination on statutory definitions located elsewhere in the Act.

What follows are concrete, source-grounded steps for the main affected actors to prepare, document and present matters so decisions under this determination are informed and, where appropriate, challengeable. Each recommendation links directly to the instrument’s requirements.

For persons subject to participation payment obligations

• Maintain contemporaneous records for at least six months prior to any anticipated comprehensive compliance assessment. The assessment period is ordinarily the six months before the start of the current comprehensive compliance assessment (s 6(1)(b)(i)). To ensure the Secretary can properly evaluate failures and broader compliance, keep attendance logs, communications about scheduling, and evidence of attempts to meet participation obligations.

• Document the reasons for any non-attendance or failure, with evidence showing whether the failure was within or outside your control. Note 1 (referring to subsection 42M(2)) requires that failures outside the person’s control must not be counted, and that only failures that were intentional, reckless or negligent may be considered. Documentary evidence such as medical certificates, transport outage notices, employer communications or screenshots of service interruptions will be relevant to show lack of control.

• If a serious failure period occurred, track the start and end dates of that period. The assessment period may be adjusted to run from the end of the serious failure period until the start of the current comprehensive compliance assessment (s 6(1)(b)(ii)). Knowing those dates will be essential to determine which failures fall within the assessment period.

• Demonstrate overall compliance during the assessment period. Section 6(1)(d) requires consideration of the extent to which the person otherwise complied. Evidence of compliance, such as records of attended activities, completed tasks and responsive communications, will help contextualise isolated failures.

For service providers, employers and attendance record-keepers

• Keep accurate, time-stamped records of attendance and of attempts to contact participants. The Secretary must count failures of types identified in the determination (s 5), and high-quality provider records will be primary evidence used in counting failures and assessing patterns.

• Where a participant notifies you of circumstances outside their control, record the notification contemporaneously and preserve any supporting documents. Because failures outside the person’s control must not be taken into account (Note 1), provider records that document such notifications will be relevant.

For departmental decision-makers and advisers

• Ensure the comprehensive compliance assessment is current and its findings are clearly documented. Section 6(1)(a) requires taking into account the findings of the most recent comprehensive compliance assessment. The content, timing and methodology of that assessment will drive the assessment period and the evidentiary baseline.

• When counting failures, analyse and record whether each failure was intentional, reckless or negligent, or was outside the person’s control. Note 1 imposes a legal limit on what may be taken into account; decision records should show the considered legal standard and the factual basis for the classification.

• Apply the assessment-period timing rule explicitly in decisions. If a serious failure period occurred during the default six-month window, compute the assessment period from the end of that serious failure period to the start of the current comprehensive compliance assessment (s 6(1)(b)(ii)). Decision records should show the dates used and the basis for any shift.

• Assess pattern versus single instance and record reasoning about weight. If three or more failures occurred in the assessment period, s 6(1)(c) requires examining whether the failures demonstrate a pattern or are a single instance. Explicitly document why failures are characterised as a pattern or as isolated incidents, and how other compliance during the assessment period affected the outcome (s 6(1)(d)).

• Provide reasons about relevance if omitting a listed matter. Section 6(2) permits the Secretary not to take into account a matter if it is not relevant in a particular case. If a listed factor is omitted, record why it was irrelevant so decisions can be reviewed against that rationale.

For advocates and advisers representing persons

• Request and scrutinise the findings of the current comprehensive compliance assessment, and the dates used to define the assessment period. Because the determination requires that the Secretary take into account the findings of the current assessment (s 6(1)(a)) and from those findings the assessment period is derived (s 6(1)(b)), obtaining the assessment is necessary to construct a response.

• Build a factual case that failures were outside the person’s control or lacked the requisite mental state. Use contemporaneous evidence, and highlight other compliance during the assessment period to rebut a finding of pattern or persistent non-compliance (s 6(1)(c); s 6(1)(d)).

• Where relevant, show that the assessment period was mis-computed because of an incorrectly identified serious failure period. If the Secretary used the default six-month window despite a qualifying serious failure period, this can be a basis for contesting the factual basis of the decision (s 6(1)(b)).

Cross-cutting operational suggestions

• Treat the three-or-more failures trigger as a cue to prepare a narrative, not as an automatic loss. The instrument requires a qualitative follow-up once the threshold is crossed (s 6(1)(c)), and effective responses will be documentary and narrative.

• Preserve communications with service providers and the Department. Because the Secretary must take account of provider-recorded failures and the current comprehensive compliance assessment (s 6(1)(a)), those records will be primary evidence in any review or challenge.

• Be aware of the transitional rule. Decisions made after 1 October 2025 will be governed by this determination even if the conduct predates that date (s 7). Prepare records accordingly for matters likely to be decided after commencement.

These compliance steps align tightly with the instrument’s text: focus on the current comprehensive compliance assessment (s 6(1)(a)), the defined assessment period and its variation (s 6(1)(b)), the three-or-more failures trigger and pattern analysis (s 6(1)(c)), and the requirement to consider broader compliance (s 6(1)(d)), while respecting the statutory limits on considering failures outside a person’s control or lacking the required mental state (Note 1).