Social Security (Administration) (Reasonable Excuse – Participation Payments) Determination 2018

This instrument uses a small set of core concepts drawn from the Act and given specific meaning in the determination. Those concepts structure the Secretary’s decision-making in respect of reasonable excuse. Key concepts in the instrument are:

• Act (defined): the Social Security (Administration) Act 1999 (s 4). The determination operates as an instrument under that Act (s 3).
• Failure: the term "failure" in this instrument is defined to mean a failure referred to in the cited subsections of the Act, i.e. mutual obligation breaches that trigger the reasonable excuse assessment in sections 42AI and 42U of the Act (s 4).
• Demerit: defined as a record on the Employment Department’s Information Technology System that the person has committed a mutual obligation failure without a valid reason (s 4). The instrument therefore presumes an administrative system that records failures as demerits; the definition links the reasonable excuse assessment to that administrative record-keeping.
• Matters to be taken into account (s 5): the Secretary must take into account a specific list of personal circumstances when deciding whether a person has a reasonable excuse for committing a failure. This list contains both health-related and situational matters: lack of adequate housing, literacy and language capacity (with an explicit illustrative example), illness/injury/impairment/disability, cognitive/neurological/psychiatric/psychological impairment or mental illness, drug or alcohol dependency, unforeseen family or caring responsibilities, criminal violence including domestic violence and sexual assault, bereavement of immediate family or close relative, undertaking paid work at the time, and attending a job interview at the time.
• Expanded housing concept (s 5(3)): the instrument sets out objective and subjective indicators that a person is taken not to have access to safe, secure and adequate housing, including health risk, threat to safety, lack of access to normal personal amenities or support, adverse effects on adequacy/safety/security/affordability in the circumstances, and lack of a right or reasonable expectation of being able to remain in the housing.
• Matters not to be taken into account (s 6): the instrument limits the Secretary’s scope by identifying what must not be taken into account in certain contexts (notably where the Secretary is not satisfied the matter directly prevented the person meeting the requirement at the relevant time (s 6(3))). There is a distinct rule in s 6(4) on drug or alcohol misuse/dependency in relation to previous failures, referral to treatment and refusal to engage in treatment, subject to enumerated exceptions.

Two structural features matter for interpretation and administration. First, the instrument repeatedly frames the Secretary’s obligations in mandatory terms: "must take into account" (s 5(1)) and "must not take into account" (s 6(1)-(2)). Second, the instrument embeds evidentiary standards and temporal linking language , for instance, the Secretary must be satisfied that a matter "directly prevented" compliance "at the relevant time that the failure occurred" (s 6(3)); and the drug/alcohol rule in s 6(4) ties together a prior failure, a subsequent treatment referral and refusal or failure to participate in that treatment.

The determination therefore operates as a procedural and interpretive rule for administrative decision-makers determining reasonable excuse claims in the participation payments/demerit context. It both expands and circumscribes the circumstances that may influence that exercise.

Primary affected parties

• Declared program participants and other recipients who are subject to mutual obligations under the Act and who may commit a "failure" as defined in this instrument. The instrument’s substantive operation is to guide whether such individuals have a reasonable excuse for committing a failure (s 4; s 5(1)).
• The Secretary of the Department of Jobs and Small Business, who is given mandatory decision-making duties by the instrument: the Secretary "must take into account" matters in s 5, and "must not take into account" matters in s 6 in the circumstances specified (s 5(1); s 6(1)-(2)). The instrument therefore directly prescribes the Secretary’s decision-making framework.

Secondary affected parties and systems

• Employment Department administrative staff and decision-makers who operate the Employment Department’s Information Technology System and record demerits. The instrument defines "demerit" as a record on that system and links the reasonable excuse assessment to such administrative records (s 4). While the instrument names the Secretary as the decision-maker, in practice the operational effect attaches to administrative processes that create and review demerits.
• Service providers and caseworkers who assess or assist participants with evidence and referrals. The listed matters to be taken into account include medical conditions, cognitive impairments, housing problems, drug and alcohol dependency, criminal violence and treatment referrals (s 5(2); s 6(4)). The determination creates an evidential demand for documentary or corroborative material relating to these matters.
• Health and treatment providers. Section 6(4) turns on a person being "referred to treatment" and then refusing or failing to participate, unless specified exceptions apply. This makes the existence, nature and timing of treatment referrals and participation relevant to the reasonable excuse assessment.
• Employers, job interviewers and workplaces to the extent that paid work or attendance at a job interview is specifically included as matters that must be taken into account if they coincide with the time of the failure (s 5(2)(i)-(j)). Those circumstances can be advanced as a reasonable excuse and therefore affect participants’ ability to defend against a failure.

Who does not gain or lose new statutory powers

• The instrument does not create new sanctioning powers or payment rules independent of the Act. It operates only as an interpretive determination under the Act (s 3), affecting how reasonable excuse is assessed rather than creating new monetary penalties or payment regimes in itself.
• Courts and tribunals are not mentioned in the instrument; it sets an administrative decision-making framework. Any judicial review or merits review issues would arise under the Act and general administrative law principles, not from this instrument’s text.

Distribution of decision-making burdens

• The instrument places the decision-making obligation on the Secretary but also imposes an evidential requirement on participants who wish to rely on listed matters. For example, s 6(3) requires the Secretary to be satisfied a matter "directly prevented" compliance at the relevant time. That creates, in practice, a burden for participants to present evidence linking their circumstance to the failure.

Temporal and prior conduct effects

• Section 6(4) links a prior failure, a treatment referral as a result of that prior failure, and a subsequent refusal or failure to participate in treatment; if those elements are present, the Secretary must not take the drug/alcohol dependency into account in deciding whether the later failure is excused, subject to listed exceptions. That creates a forward-looking administrative consequence of prior non-engagement with treatment.

In short, the instrument principally affects participants whose personal circumstances fall within the listed matters, the Secretary and the Employment Department’s administrative apparatus, and allied service and treatment providers whose activities generate the evidence relied upon in the reasonable excuse assessment.

Statutory duties imposed by the instrument

• Mandatory consideration duty: The Secretary must take into account the enumerated matters when assessing whether a person has a reasonable excuse for a failure referred to in subsections 42AI(1) and 42U(1) of the Act (s 5(1)-(2)). This is a duty of statutory consideration; it requires decision-makers to address the listed circumstances as part of their reasoning process in every relevant decision.
• Mandatory exclusion duty: In specified contexts the Secretary must not take certain matters into account: for subsection 42AI(3) of the Act the matters set out in subsections 6(3) and 6(4) must not be taken into account; for subsection 42U(3) the matter set out in subsection 6(3) must not be taken into account (s 6(1)-(2)). These are negative obligations shaping the permissible considerations in particular parts of the Act’s reasonable excuse structure.

Specific content of the duties

• Scope of mandatory consideration: The matters that must be considered are listed in s 5(2)(a)-(j). They include both objective and subjective circumstances; there is an explicit example under literacy and language skills explaining the thrust of that consideration (s 5(2)(b) and the Example).
• Clarification of housing: Section 5(3) provides detailed circumstances that, without limiting paragraph 5(2)(a), lead to a person being taken not to have access to safe, secure and adequate housing. Those sub-elements operate as indicators or presumptions for decision-makers.
• Evidentiary threshold for exclusion: Section 6(3) specifies that any "matter" is excluded where the Secretary is not satisfied that the matter directly prevented the person meeting the requirement that was the subject of the failure at the relevant time the failure occurred. That creates an express satisfaction standard for reliance on a matter that could otherwise be considered.
• Prior-treatment linkage on substance dependence: Section 6(4) sets out a multipart condition under which a drug or alcohol misuse or dependency is to be excluded from consideration for subsection 42AI(3), namely: a previous failure on or after 1 July 2018, a prior decision that due to the dependency the previous failure either did not result in a demerit or the person was found to have a reasonable excuse, a referral to treatment as a result of that previous failure, and the person refused or failed to participate in the treatment. That exclusion is subject to enumerated exceptions (s 6(4)(e)-(h)).

Rights (instruments of process rather than substantive rights)

• Right to have specified matters considered: Persons who rely on the matters in s 5(2) have a statutory right to have those matters considered by the Secretary when asserting reasonable excuse under the relevant subsections of the Act (s 5(1)-(2)). The instrument creates a procedural entitlement for claimants to have those factors weighed.
• Right to exclusion on evidentiary grounds: Conversely, the instrument limits the ability of a person to rely on certain matters where the Secretary is not satisfied of direct prevention (s 6(3)) or where a prior treatment referral and subsequent refusal applies (s 6(4)), except where an exception in s 6(4)(e)-(h) applies.

Administrative implications of the duties

• Record-keeping and evidentiary demands: Because the instrument ties demerit records and treatment referrals to the assessment, administrative duties will include maintaining records that show whether a person has been referred to treatment and whether they engaged. The definition of "demerit" as an IT record connects these decision duties to employment services record systems (s 4).
• Temporal linkage requirement: The duties repeatedly require consideration or exclusion of matters tied to "the time of the failure" or "the relevant time that the failure occurred" (s 5(2) and s 6(3)). Decision-makers must therefore be able to place evidence in time and show whether a matter directly prevented conduct at that moment.

Limits to what this instrument does not do

• The determination does not create a new substantive entitlement to payment or revise sanction amounts under the Act. It is a decision-guidance instrument that prescribes matters for consideration or exclusion when determining reasonable excuse for mutual obligation failures referenced in specified subsections of the Act (s 3).

Overall, the instrument creates mandatory procedural duties for the Secretary to consider a defined list of factors and to exclude certain matters in specified circumstances; it establishes evidentiary and temporal thresholds that will structure administrative practice around demerits and treatment referrals.

The determination itself does not create new criminal offences, monetary penalties, or separate enforcement mechanisms. Its enforcement effect is indirect and functional: it prescribes how the Secretary must assess whether a person has a "reasonable excuse" for a mutual obligation failure that relates to participation payments and demerit records under the Act. The instrument’s relevant provisions affect enforcement outcomes under the Act by shaping the decision whether a failure is excused or not. The text provides the following enforcement-relevant mechanisms and linkages:

• Demerit connection: The instrument defines "demerit" as a record on the Employment Department’s Information Technology System that the person has committed a mutual obligation failure without a valid reason (s 4). Demerit records are administrative artefacts that typically tie into enforcement processes under the Act (for example, determining whether participation payments are deducted or other consequences follow). The determination therefore affects enforcement indirectly through its influence on whether a failure counts as without a valid reason and therefore whether a demerit is entered or maintained.
• Exclusion and inclusion rules affect sanctioning outcomes: By directing the Secretary to take specified matters into account (s 5) and to exclude matters in certain circumstances (s 6), the instrument determines which personal circumstances can mitigate a finding of no reasonable excuse and which cannot. This will determine whether subsequent enforcement steps under the Act are taken.
• Evidentiary standard for exclusion: Section 6(3) requires the Secretary to be satisfied that a matter "directly prevented" the person from meeting the requirement at the relevant time. That express satisfaction standard functions as an internal limit on the administrative discretion to excuse conduct and therefore serves as an internal enforcement control against relying on peripheral factors to excuse conduct. The Secretary’s satisfaction is itself an enforceable statutory threshold in administrative decision-making.
• Prior conduct and treatment linkage: Section 6(4) prescribes that drug or alcohol misuse or dependency is not to be taken into account where a prior failure led to a treatment referral and the person refused or failed to participate in treatment, subject to exceptions. This provision links enforcement over time: prior non-engagement with treatment can remove an avenue of mitigation for later failures. The requirement that this only applies for previous failures on or after 1 July 2018 ties the rule to the commencement date of the instrument (s 6(4)(a)).
• Decision-maker obligations: The instrument places mandatory duties on the Secretary ("must take into account", "must not take into account") (s 5(1); s 6(1)-(2)). Failure by the Secretary or delegated decision-maker to observe these duties could give rise to administrative review or judicial review on conventional grounds, though the instrument does not itself spell out review rights or appeal routes , those exist under the Act and relevant administrative law regimes.

What the instrument does not specify about penalties and enforcement

• The determination does not specify the operational penalties that flow from a demerit or a failure (for example, participation payment deductions, suspensions or other sanction amounts). Those enforcement particulars sit in the Act itself and associated regulations; this instrument is an interpretive determination tied to the reasonable excuse question (s 3).
• The instrument does not prescribe internal disciplinary sanctions for decision-makers who fail to observe its duties. Enforcement of the duties is therefore via statutory compliance and the legal remedies that apply to administrative decision-making under the Act and general administrative law.

Practical enforcement consequence

• In practice, the instrument alters the inputs to enforcement decisions: decision-makers must weigh or exclude particular personal circumstances as directed. That will affect the entry, maintenance or removal of demerits in the Employment Department’s IT system (s 4), and thereby affect how the Act’s enforcement mechanics operate in individual cases.

In summary, the determination is an interpretive and procedural instrument that channels enforcement outcomes under the Act by specifying which personal circumstances count for or against a finding of reasonable excuse. It does not itself impose penalties but it influences whether administrative enforcement mechanisms in the Act are engaged.

This determination is an instrument made under specific subsections of the Social Security (Administration) Act 1999 and therefore operates as a subordinate legal instrument that must be read in conjunction with the Act. The instrument’s own text points to those interactions and frames its own limits.

Direct statutory interaction

• Operative authority: The instrument is made under subsections 42AI(1), 42AI(3), 42U(1) and 42U(3) of the Act (s 3). Accordingly, it must be applied in the context of those specific provisions of the Act, which deal with mutual obligation failures and the assessment of reasonable excuse for participation payment purposes. The determination does not amend those sections of the Act; it prescribes matters for decision-makers to take into account or exclude when applying them.
• Definitions in the Act: The instrument relies on expressions defined in the Act or the Social Security Act 1991 (s 4 Note). It explicitly notes that terms such as "declared program participant", "Employment Department" and "participation payment" are defined in the Act or the Social Security Act 1991. Thus interpretation requires cross-reference to those Acts for full effect.

Administrative and operational interaction

• Employment Department IT systems: The instrument defines "demerit" as a record on the Employment Department’s Information Technology System (s 4). This creates a direct operational interface with administrative record systems used to implement the Act. Any operational rules about how demerits are created, amended or removed will be relevant and must be read with the Act and this determination.
• Treatment referral procedures and health service frameworks: Section 6(4) turns on whether a person was "referred to treatment to address the drug or alcohol misuse or dependency" and whether they "refused or failed to participate in the treatment" (s 6(4)(c)-(d)). The availability, appropriateness and timing of such referrals, and clinical determinations of appropriateness, are relevant to operation of the exclusion and exception rules. The instrument does not define "treatment" or set out treatment protocols; those specifics will therefore depend on existing health service frameworks, clinical practice and administrative arrangements, which interact with the instrument.
• Other social security safeguards and appeal regimes: While not mentioned in the determination, decisions made under the Act are subject to statutory review, merits review and judicial review on established legal grounds. The instrument’s mandatory duties and exclusions will be relevant to the substantive content of such reviews because they create legal obligations on decision-makers to consider or disregard particular matters.

Interpretation tensions and cross-references

• Temporal and evidential cross-referencing: The determination frequently links matters to the "time of the failure" and the "relevant time that the failure occurred" (s 5(2); s 6(3)). Proper application thus requires decision-makers to synchronise the instrument’s content with factual timelines established under the Act, creating interpretive work at the intersection of the instrument and the Act’s failure definitions.
• Interaction with existing definitions and programs: The instrument notes that some expressions are defined in the Act or the Social Security Act 1991 (s 4 Note). As a result, whether a person is a "declared program participant" or whether conduct qualifies as a "participation payment" issue must be established under those source Acts to determine whether the instrument applies.

Limits on statutory reach

• No override of substantive Act provisions: The instrument prescribes matters to be considered or excluded under the Act but does not purport to alter substantive entitlements or penalties in the Act. It is therefore subordinate and must be interpreted consistently with the enabling subsections (s 3).
• Dependence on Act’s cross-referenced language: Because the instrument’s duties are framed by reference to subsections of the Act, the scope of its application changes if and when those Act provisions are amended. The instrument’s table (s 2) confirms its commencement and thereby fixes certain temporal thresholds in the instrument itself (for example s 6(4)(a) referring to previous failures "on or after 1 July 2018").

In sum, the instrument is a focused interpretive layer that must be applied in conjunction with the Social Security (Administration) Act 1999 and relevant operational frameworks such as Employment Department IT systems, treatment referral arrangements and the broader administrative review and appeal mechanisms that govern social security decisions.

The instrument contains its own commencement and authorship details but no subsequent amendments are recorded within the provided text. The key amendment-history material in the instrument is:

• Date made and signature: The instrument is dated 7 June 2018 and signed by Kerri Hartland, Secretary of the Department of Jobs and Small Business (title block and signature block).
• Commencement: The instrument specifies that "The whole of this instrument" commenced on 1 July 2018 (s 2 and the commencement table). The instrument also contains the standard note that the commencement table relates only to the provisions as originally made and will not be amended to deal with later amendments (s 2(1) Note).
• Authority: The instrument was made under subsections 42AI(1), 42AI(3), 42U(1) and 42U(3) of the Act (s 3).

What the instrument does not include about amendment history

• The instrument itself contains no subsequent amendment entries, no legislative history of prior or later versions, and no schedule of modifications. The commencement table includes a Column 3 reserved for "information" which is explicitly stated not to be part of the instrument and which may be edited in any published version, but no content is provided in that column in the text provided (s 2(2)). Therefore the instrument as presented should be read as the original instrument made in June 2018 and commencing 1 July 2018.
• There is no record within the instrument text of later revocations, repeals, or modifications. If subsequent amendments exist they are not recorded here; users must check official legislative registers or consolidated instruments for any later changes.

Practical note for users

• Temporal cut-offs in the text: Section 6(4)(a) explicitly refers to a "previous failure on or after 1 July 2018". That date corresponds to the instrument’s commencement date and functions as a temporal anchor in the instrument itself. Any amendments altering commencement or retroactivity would need to be done by separate instruments or legislative amendment.
• Reliance on enabling provisions: Because the instrument is subordinate to the Act, amendments to the relevant subsections of the Act (42AI and 42U) may affect the instrument’s practical operation even if the instrument itself is unchanged. Users should therefore review the relevant provisions of the Act alongside the instrument to capture any legislative developments.

Summary

• The instrument was made on 7 June 2018 and commenced in full on 1 July 2018. No amendment events or later versions are recorded in the provided text. For current application and any subsequent changes, cross-check with the consolidated legislation database or relevant legislative registers.

The instrument contains no references to any judicial or tribunal decisions. The text provided does not mention any cases, decisions or litigation that interpret or test its provisions. Accordingly:

• There is no litigation history recorded in the instrument itself. The instrument names no court or tribunal decisions and cites no cases.
• Because the instrument prescribes mandatory duties on the Secretary and sets evidentiary standards (for example, the Secretary must be "satisfied" that a matter "directly prevented" compliance at the relevant time (s 6(3))), it creates factual and legal issues that could be the subject of review or appeal under general administrative law or the Act’s review mechanisms. Those potential themes for litigation, derived from the instrument’s content, include:
  • The meaning of "directly prevented" in s 6(3) and the evidentiary standard required to satisfy the Secretary.
  • The interpretation of housing inadequacy indicators in s 5(3), for example what constitutes a housing condition that "damages, or is likely to damage, the person's health" or threatens "a reasonable level of personal amenities".
  • The scope of the literacy and language example in s 5(2)(b), particularly what forms of delivery qualify as "a form that the person is most likely to comprehend".
  • The application of s 6(4) for prior drug or alcohol dependency when treatment was "not available or appropriate" (s 6(4)(e)), when the person was "genuinely unable" to participate (s 6(4)(f)), or when treatment did not commence despite reasonable steps (s 6(4)(g)).
  • The linkage between administrative demerit records (defined in s 4) and subsequent decision-making, including whether the processes creating or retaining demerits meet procedural fairness requirements.
• If dispute arises from a decision made under the Act applying this determination, relevant avenues for challenge would be those provided under the Act and general administrative law remedies (judicial review and merits review where available). The instrument itself does not specify appeal routes.

Practical considerations for potential litigation (grounded in instrument text)

• The instrument’s mandatory language ("must take into account", "must not take into account") creates identifiable legal duties; failure by decision-makers to observe these could be a legal error susceptible to review.
• Many of the instrument’s provisions hinge on evaluative or clinical judgments (for example, whether treatment was "appropriate" or whether a person was "genuinely unable" to participate), which may draw on expert evidence or administrative records in any dispute.
• The instrument’s linkage to the Employment Department’s IT system via the "demerit" definition (s 4) suggests that litigation could engage issues of administrative record-keeping and whether demerit entries accurately reflect the Secretary’s lawful assessment.

Conclusion

• No litigation history is recorded in the instrument. The instrument sets out a series of legal obligations and fact-sensitive thresholds that are capable of giving rise to disputes, but any decisions about those disputes would be found in external case law or tribunal decisions not referenced in this text.

This section identifies interpretative and operational traps that arise from the instrument’s wording and structure. Each point is tied to the exact language of the instrument and highlights practical issues decision-makers, advisers and participants should attend to.

1. Mandatory but narrow scope of "must take into account" (s 5(1)-(2))

• The determination requires the Secretary to take into account the listed matters (s 5(1)-(2)). A common mistake is to assume the list is exhaustive of all circumstances that could be relevant. The instrument prescribes the matters the Secretary "must" take into account for the specified subsections, but it does not expressly state that other matters may not also be relevant under the Act. Practitioners should not conflate the instrument’s list with an exhaustive catalogue of all possible relevant circumstances under the Act itself.

2. "Directly prevented" is a high-precision phrase (s 6(3))

• Section 6(3) excludes any matter if "the Secretary is not satisfied that the matter directly prevented the person from meeting the requirement that was the subject of the failure at the relevant time that the failure occurred". The emphasis on "directly prevented" and "at the relevant time" means temporal and causal linkage must be demonstrated. Vague or distal links between a condition and a failure may fail this test. Advisers should prepare contemporaneous evidence that links the circumstance to the missed obligation at the specific time.

3. Housing definition includes subjective and objective elements (s 5(3))

• Section 5(3) contains multiple sub-criteria by which a person is "taken not to have access to safe, secure and adequate housing": health damage or likely damage, threats to safety, lack of personal amenities or support, adverse effects on adequacy/safety/security/affordability in the circumstances, and lack of a right to remain or reasonable expectation of remaining. These criteria mix objective conditions (damage to health) and legal/tenancy status (no right to remain). Evidence should address both types of indicators.

4. Literacy and language example introduces format-of-delivery issue (s 5(2)(b) Example)

• The instrument gives an explicit example: where a person is unable to comprehend a requirement or instruction "despite the requirement or instruction being delivered in a form that the person is most likely to comprehend". This creates a two-step enquiry: (a) the person lacked comprehension; and (b) the instruction was delivered in an appropriate form. Record or proof of the form of delivery and any attempts to provide an accessible format are therefore critical.

5. Distinct treatment for drug/alcohol dependency tied to prior conduct (s 6(4))

• Section 6(4) contains a multi-element rule that makes dependency a non-relevant matter if the person previously committed a failure on or after 1 July 2018, the previous failure did not result in a demerit or the Secretary accepted a reasonable excuse, the person was referred to treatment as a result of that prior failure, and the person refused or failed to participate in the treatment. The rule is subject to exceptions (s 6(4)(e)-(h)). Practitioners need to assemble a chronological record: prior failure date, outcome of that prior decision, existence and detail of treatment referral, and evidence of refusal/non-participation. The instrument ties mitigation for dependency to demonstrated engagement with treatment pathways.

6. Different application between subsections 42AI(3) and 42U(3) (s 6(1)-(2))

• The instrument differentiates between subsection 42AI(3) and 42U(3): for 42AI(3) the matters in subsections 6(3) and 6(4) must not be taken into account; for 42U(3) only 6(3) applies (s 6(1)-(2)). This asymmetry can be overlooked. Advisers should confirm which subsection of the Act is engaged in a given case to determine whether the drug/alcohol prior-treatment exclusion in s 6(4) applies.

7. "Demerit" is an administrative record (s 4)

• The instrument defines "demerit" as a record on the Employment Department’s IT system indicating a mutual obligation failure without a valid reason (s 4). A demerit is an administrative status that may trigger further consequences under the Act. Ensuring the accuracy and procedural regularity of demerit entries can be decisive; challengeable errors in record creation or timing may affect subsequent assessments.

8. Exceptions to the treatment-refusal exclusion are fact-sensitive (s 6(4)(e)-(h))

• The exceptions where treatment was "not available or appropriate", the person was "genuinely unable" to participate, treatment did not commence despite reasonable steps, or the person had already completed substantially similar treatment and would not benefit from more, require nuanced evidentiary support. Each exception invites clinical and factual proof. "Genuinely unable" and "appropriate" are evaluative and may require expert or contemporaneous documentation.

9. Temporal anchoring to 1 July 2018 (s 6(4)(a))

• The prior-failure test in s 6(4) applies to previous failures "on or after 1 July 2018". Practitioners must map any prior conduct against that date. Failures before that date do not trigger the same linkage in s 6(4).

10. Administrative vs legal decision-maker roles

• The instrument speaks to the Secretary’s duties; operationally, decisions are often made by delegated officers. Ensure any delegation includes processes to comply with the instrument’s mandatory "must take into account" and "must not take into account" requirements, and that delegation records or notes demonstrate compliance with those statutory duties.

These "gotchas" are practical traps that arise from textual features of the instrument. Addressing them requires precise time-stamped evidence, clinical or professional corroboration where relevant, and careful mapping of prior procedural steps such as treatment referrals and demerit entries.

This section provides concrete, source-grounded steps for participants, advisers, and administrative decision-makers to ensure compliance with the instrument’s obligations and to support or challenge reasonable excuse determinations. All recommendations are drawn directly from the instrument’s text and the obligations it places on the Secretary and participants.

For administrative decision-makers (Secretary and delegated officers)

1. Document mandatory consideration

• In each decision under subsections 42AI(1) and 42U(1) of the Act, record how each of the matters in s 5(2)(a)-(j) was considered. The determination uses mandatory language ("must take into account" (s 5(1))); decision records should explicitly address each listed matter or record why a matter is inapplicable.

2. Establish temporal facts

• Where a matter is relied upon for mitigation, ensure the decision record links the circumstance to the "time of the failure" or the "relevant time that the failure occurred" as required by s 6(3). The Secretary must be "satisfied" of direct prevention at that time, so contemporaneous evidence and time-stamping of events are essential.

3. Verify demerit records

• Because "demerit" is defined as an IT system record (s 4), ensure IT records accurately reflect the factual basis for a demerit. Any decision to enter, retain or remove a demerit should be documented and linked to the reasonable excuse assessment. Procedural notes should show that s 5 and s 6 have been applied before a demerit is finalised.

4. Apply the drug/alcohol prior-failure test carefully

• For decisions under s 42AI(3), apply the multi-step test in s 6(4) before relying on drug or alcohol dependency as a mitigating matter. Confirm whether there was a previous failure on or after 1 July 2018, whether that previous failure resulted in a demerit or an accepted reasonable excuse, whether treatment was referred to as a result of the previous failure, and whether the person refused or failed to participate in that treatment. Consider exceptions in s 6(4)(e)-(h) and seek contemporaneous clinical or administrative evidence where necessary.

For participants and advisers

1. Assemble time-linked evidence

• When asserting a reasonable excuse that relies on any of the matters in s 5(2), provide time-stamped evidence that links the circumstance directly to the missed requirement at the relevant time (s 6(3)). Examples of useful evidence: medical certificates specifying incapacity at the relevant time, proof of paid work hours coinciding with the appointment, or contemporaneous correspondence showing attendance at a job interview.

2. Housing evidence

• If lack of safe, secure and adequate housing is relied upon (s 5(2)(a) and s 5(3)), gather evidence that addresses the instrument’s specific indicators: health impacts, safety threats, lack of personal amenities or support, adverse impacts on adequacy/safety/security/affordability, or lack of a right to remain. Examples: tenancy notices, police reports, shelter intake records, medical records linking health effects to housing, or notices of eviction.

3. Literacy and communication formats

• If relying on literacy or language barriers (s 5(2)(b)), demonstrate both the person’s comprehension limitations and the forms in which the requirement was delivered. The instrument’s example requires showing inability to comprehend despite delivery in an accessible form, so collate translations, interpreter engagement records, or evidence of efforts to provide alternative formats.

4. Treatment engagement records

• Where substance dependency is involved and prior treatment referrals are relevant under s 6(4), obtain records of treatment referrals, appointment offers, attendance or non-attendance, reasons for non-participation and any clinical notes on appropriateness. If claiming an exception (s 6(4)(e)-(h)), evidence of unavailability of suitable treatment, genuine inability to participate, or a record of reasonable steps to commence treatment will be critical.

5. Evidence of criminal violence or domestic violence

• For matters under s 5(2)(g), provide contemporaneous evidence such as police reports, protection orders, crisis service records or refuge intake documentation to demonstrate that criminal violence or domestic violence directly affected ability to comply at the relevant time.

6. Job interview or paid work

• If a job interview or paid work is asserted as the reason for a missed obligation (s 5(2)(i)-(j)), provide corroboration such as employer confirmation, payslips showing working hours, interview confirmation emails, or travel receipts.

Operational process recommendations for agencies

1. Standardised decision templates

• Adopt templates that force explicit consideration of each s 5(2) matter and explicit assessment under s 6(3) when exclusion is relevant. Templates should record whether the Secretary is satisfied that a matter directly prevented compliance at the relevant time and document reasons for satisfaction or non-satisfaction.

2. Treatment referral tracking

• Implement a tracking system for treatment referrals and participant engagement in treatment so that s 6(4) assessments can be made against reliable records. Track date of referral, clinical notes on appropriateness, commencement dates, non-attendance reasons, and whether treatment was substantially similar to prior treatment.

3. Training for decision-makers

• Provide training on the meaning of "directly prevented", the specifics of s 5(3) housing indicators, how to evaluate literacy and communication format issues, and the s 6(4) prior-treatment test. Emphasise the need to document factual and temporal links.

4. Procedural fairness and reviewability

• Because the instrument imposes mandatory duties, ensure that decision processes preserve procedural fairness: allow persons to present evidence on the matters in s 5(2); provide reasons that demonstrate those matters were considered; and document how s 6(3) determinations were reached. Maintain records in the Employment Department’s IT system consistent with the demerit definition (s 4).

Checklist for advice and compliance

• Confirm which subsection of the Act is engaged (42AI(1)/(3) or 42U(1)/(3)), since s 6(1)-(2) treats them differently.
• Time-map the alleged failure and gather contemporaneous evidence anchored to that time.
• If housing is relied upon, gather tenancy, shelter, health or eviction evidence aligned to s 5(3) indicators.
• For literacy/language claims, collect evidence of delivery form and comprehension issues.
• For substance dependency, collate prior failure records, referral documents and treatment participation records; check applicability of exceptions in s 6(4)(e)-(h).
• For domestic or criminal violence, obtain police, refuge or medical records showing timing and impact.
• For job interviews or paid work, secure employer confirmations or interview documentation.

These compliance steps directly reflect the instrument’s textual requirements and will assist both decision-makers and participants to produce the factual records and reasoning necessary to satisfy the statutory obligations contained in the determination.