Federal Register of Legislation - Australian Government

Primary content

Rules/Other as made
These rules provide a framework for the operation of the Business Services Wage Assessment Payment Scheme. They deal with matters such as eligibility, calculating the payment amount, acceptance, internal and external reviews, nominees, disclosure of protected information and legal and financial counselling.
Administered by: Social Services
Registered 09 Jul 2015
Tabling HistoryDate
Tabled HR10-Aug-2015
Tabled Senate10-Aug-2015
Table of contents.

 

Business Services Wage Assessment Tool Payment Scheme Rules 2015

 

 

Business Services Wage Assessment Tool Payment Scheme Act 2015

____________________________________________________________________

 

I, MITCH FIFIELD, Assistant Minister for Social Services, make these rules under section 102 of the Business Services Wage Assessment Tool Payment Scheme Act 2015

 

Dated: 6 July 2015

 

 

 

 

 

MITCH FIFIELD

Assistant Minister for Social Services

 


Contents

Chapter 1— General provisions  1

Part 1— Preliminary  1

1.01            Name of rules. 1

1.02            Commencement 1

Part 2— Interpretation   1

1.03            Definitions. 1

1.04            Reference to things being done orally or in writing. 2

1.05            Words relating to legal practices. 2

Chapter 2— Eligibility and applications  3

Part 1— Eligibility  3

2.01            Evidence of eligibility—intellectual impairment 3

Part 2— Applications  3

2.02            Lodging applications. 3

Chapter 3— Calculating the payment amount 4

Part 1— Outline and general concepts  4

3.01            Simplified outline. 4

3.02            What is an eligible financial year and eligible period?. 4

3.03            What happens if an eligible period straddles two eligible financial years?  4

3.04            Decimal places. 4

Part 2— Working out the actual wage  5

3.05            Actual wage to be worked out in accordance with this Part 5

3.06            Step 1—Determine the person's gross pay for each eligible period. 5

3.07            Step 2—Determine the number of hours the person worked in each eligible period  5

3.08            Step 3—Determine the BSWATR assessed rate for each eligible period. 6

3.09            Step 4—Work out the person's actual wage for each eligible period. 6

Part 3— Working out the productivity-scored wage  7

3.10            Productivity-scored wage to be worked out in accordance with this Part 7

3.11            Step 1—Determine the BSWATR award rate. 7

3.12            Step 2—Determine the BSWATR productivity component percentage for each eligible period  7

3.13            Step 3—Work out the person's productivity-scored rate for the eligible period  7

3.14            Step 4—Work out the productivity-scored wage for each eligible period. 7

Part 4— Working out the payment amount 7

3.15            Payment amount to be worked out in accordance with this Part 7

3.16            Step 1—Determine the excess amount for each eligible period. 8

3.17            Step 2—Determine the excess amount for each eligible financial year 8

3.18            Step 3—Index the amount for each eligible financial year to calculate the total excess amount 8

3.19            Step 4—Work out the payment amount 8

3.20            Calculating the amount on account of tax. 9

Chapter 4— Extensions of time and acceptance  10

4.01            Extensions of time for acceptance period and review period. 10

4.02            Lodging an acceptance. 10

Chapter 5— Internal review   11

5.01            Applications for internal review. 11

5.02            Withdrawal of application for internal review. 11

Chapter 6— External review   12

Part 1— Applications and withdrawals  12

6.01            Application for external review. 12

6.02            Withdrawal of application for external review. 12

Part 2— Remuneration of external reviewers  12

6.03            Remuneration payable to external reviewers. 12

6.04            Where the external reviewer has a Commonwealth rate. 12

6.05            Where the external reviewer does not have a Commonwealth rate. 12

6.06            Hourly and daily rates. 13

6.07            Rates are inclusive of GST. 13

Part 3— External review process  13

6.08            Requirements for external review. 13

Chapter 7— Nominees  14

Part 1— Functions and responsibilities of nominees  14

7.01            Modification of duty in relation to participants who cannot formulate preferences  14

7.02            Other duties. 14

Part 2— Appointment and cancellation or suspension of appointment 15

7.03            Persons who must not be appointed as nominees. 15

7.04            Nominee declaration. 16

7.05            Criteria and matters for considering appointment 16

7.06            Requirement to consult 18

7.07            Cancellation or suspension of appointment of a nominee. 18

Part 3— Review of certain decisions about nominees  18

7.08            Applications for review. 18

7.09            Withdrawal of application for review. 18

Chapter 8— Disclosure of protected information  19

Part 1— Purpose and outline  19

8.01            Purpose of this Chapter 19

Part 2— Rules for the purposes of making public interest certificates  19

8.02            When a public interest certificate may be given. 19

8.03            Secretary must consider disclosure principles. 19

Part 3— Rules for the purposes of disclosures to other agencies  20

8.04            When disclosures may be made to other agencies. 20

Chapter 9— Legal and financial counselling services  22

Part 1— General 22

9.01            Purpose and simplified outline of this Chapter 22

9.02            Financial counsellors. 22

9.03            Meaning of eligible adviser 22

Part 2— Publication scheme  23

9.04            Secretary to establish register of eligible advisers. 23

9.05            Eligible advisers may apply to be included in register 23

9.06            Removal of eligible advisers from the register 23

Part 3— Payments for services provided by an eligible adviser  23

9.07            Eligible adviser may make a claim for payment 23

9.08            Maximum amount of a claim.. 24

9.09            Secretary to decide claim.. 24

 


Chapter 1—General provisions

Part 1—Preliminary

1.01         Name of rules

These rules are the Business Services Wage Assessment Tool Payment Scheme Rules 2015.

1.02         Commencement

These rules commence on the day after they are registered.

Part 2—Interpretation

1.03         Definitions

(1)       In these rules:

Act means the Business Services Wage Assessment Tool Payment Scheme Act 2014.

ADE means Australian Disability Enterprise.

applicable BSWATR—see subsection 3.08(2).

average BSWATR assessed rate—see subsection 3.08(3).

BSWATR means a Business Services Wage Assessment Tool Report which records a person's BSWAT assessment.

child welfare agency—see subsection 8.03(2).

conflict of interest—see subsection 7.02(12).

court-appointed decision-maker: a person is a court-appointed decision-maker in relation to a participant if the person, under a law of the Commonwealth, a State or a Territory:

(a)       has guardianship of the participant; or

(b)       is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee.

eligible financial year—see section 3.02.

eligible period—see section 3.02.

financial counselling certificate means a certificate that complies with section 37 of the Act.

financial year means a period of 12 months starting on 1 July.

legal advice certificate means a certificate that complies with section 36 of the Act.

participant-appointed decision-maker: a person is a participant-appointed decision-maker in relation to a participant if the participant has entered into a formal arrangement with the person under which the person is able to make a decision on the participant’s behalf (for example, an enduring power of attorney, an advance health directive or appointment as an enduring guardian under State or Territory law).

spouse of a person includes a de facto partner of the person.

recipient agency—see subsection 8.04(2).

relative—see subsection 7.03(3).

Note:      Pursuant to paragraph 13(1)(b) of the Legislative Instruments Act 2003, expressions used in these rules have the same meaning as in the Act.  For example, the following words are defined by the Act:

              Australian Disability Enterprise
BSWAT
BSWAT assessment
centrelink program
eligible day
legal practitioner
nominee

(2)       In these rules, a reference to a person's centrelink data means data about that person held for the purposes of a centrelink program.

(3)       In these rules, a reference to a person's CRS data means data held about that person for the purposes of administration of the BSWAT by CRS Australia.

1.04         Reference to things being done orally or in writing

A reference in these rules to something being done orally or in writing means that the thing may be done:

(a)       by telephone by calling the Department on 1800 799 515;

(b)       by email to the Department at BSWATPayments@dss.gov.au; or

(c)       by post by writing to the Department at the following address:

Department of Social Services
BSWAT Payment Scheme
GPO Box 9820

Hobart TAS 7001

1.05         Words relating to legal practices

In these rules, the phrases law firm, multidisciplinary partnership, and incorporated legal practice have the meaning given to them by the Legal Profession Uniform Law which is Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria.

Chapter 2—Eligibility and applications

Part 1—Eligibility

2.01         Evidence of eligibility—intellectual impairment

The evidence needed to establish that a person met the condition in paragraph 6(2)(a) of the Act for any eligible day is:

(a)       if the person was in receipt of a disability support pension because of an intellectual impairment between 1 January 2004 and 31 January 2015—evidence that the person received a disability support pension because of an intellectual impairment on at least one day between those dates; or

(b)       if the person was not in receipt of a disability support pension because of an intellectual impairment on any day between 1 January 2004 and 31 January 2015:

(i)         information contained in the person's centrelink data which confirms that the person has an intellectual impairment; or

(ii)        a document signed by a medical practitioner, clinical psychologist or educational institution which certifies that, in the opinion of the author, the person has an intellectual impairment.

Note:      The definition of intellectual impairment is in section 7 of the Act and includes an intellectual disability, autism spectrum disorder, dementia and impaired intellectual functioning as a consequence of an acquired brain injury.

Part 2—Applications

2.02         Lodging applications

For paragraph 15(2)(b) of the Act, a person may lodge an application for the BSWAT payment scheme:

(a)       by posting the application to the Department at the address specified in paragraph 1.04(c); or

(b)       electronically in the manner notified by the Department on its website.

Chapter 3—Calculating the payment amount

Part 1—Outline and general concepts

3.01         Simplified outline

The following is a simplified outline of this Chapter.

This Chapter sets out how to calculate the payment amount for a person.  It provides both the method and the evidence required to calculate a payment amount.

First, work out the amount the person was actually paid by an ADE using the steps in Part 2.  Then, work out the amount the person would have been paid had the wage been calculated using only the productivity-scored component of the BSWAT using the steps in Part 3.  Finally, work out the difference between the two amounts and apply the steps in Part 4 to calculate the payment amount.  The steps in Part 4 also deal with taxation.

3.02         What is an eligible financial year and eligible period?

(1)       An eligible financial year for a person is a financial year in which there is an eligible day for the person.

(2)       An eligible period for a person is the person's normal pay period in which there was an eligible day for the person.

3.03         What happens if an eligible period straddles two eligible financial years?

(1)       This section sets out what to do if some days in an eligible period are in one eligible financial year (the first financial year) and some days are in the next eligible financial year (the second financial year).

(2)       First, any calculation in this Chapter is to be performed as if all days in the eligible period fall within one eligible financial year.

(3)       Then, work out the fraction of days of the eligible period falling in the first financial year and the fraction of days of the eligible period falling in the second financial year.

(4)       Finally, apportion the amount worked out in accordance with subsection (2) to the first financial year and the second financial year according to the fractions worked out in subsection (3).

3.04         Decimal places

In this Chapter, all amounts are to be calculated to three or more decimal places other than the calculation in section 3.19.

Part 2—Working out the actual wage

3.05         Actual wage to be worked out in accordance with this Part

For subsection 8(5) of the Act, a person's actual wage is an hourly wage worked out in accordance with this Part.

3.06         Step 1—Determine the person's gross pay for each eligible period

(1)       For each eligible period, determine the before-tax salary that was paid or was payable by an ADE to the person in respect of employment in that period.

Note:      If a wage was not paid or payable by an ADE in respect of a period, that period is not an eligible period.  See section 3.02.

(2)       For section 11 of the Act:

(a)       the evidence prescribed for the purposes of subsection (1) is the evidence mentioned in the table; and

(b)       the evidence in the table is in descending order of priority; and

(c)       a person making a decision or exercising a power under the Act or these rules is not under any obligation to request information in order to obtain evidence which is higher in the table but may do so.

Note:      The Secretary may request further information under sections 68 and 69 of the Act.

Column 1

Item

Column 2

Prescribed evidence

1

Payslip or other document from the ADE verifying the before-tax salary for the eligible period

2

Information recorded in the person's centrelink data

 

3.07         Step 2—Determine the number of hours the person worked in each eligible period

(1)       For each eligible period, determine the number of hours that the person worked at an ADE. 

(2)       For section 11 of the Act:

(a)       the evidence prescribed for the purposes of subsection (1) is the evidence mentioned in the table; and

(b)       the evidence in the table is in descending order of priority; and

(c)       a person making a decision or exercising a power under the Act or these rules is not under any obligation to request information in order to obtain evidence which is higher in the table but may do so.

Note:      The Secretary may request further information under sections 68 and 69 of the Act.

Column 1

Item

Column 2

Prescribed evidence

1

Payslip or other document from the ADE verifying the number of hours worked

2

If the centrelink data records the number of hours the person worked at an ADE in the eligible period and that figure is equal to or more than 16 hours, the information recorded in the person's centrelink data

3

If the centrelink data does not record the number of hours the person worked at an ADE in the eligible period or that figure is less than 16 hours—the information recorded in the person's CRS data

 

3.08         Step 3—Determine the BSWATR assessed rate for each eligible period

(1)       For each eligible period, the BSWATR assessed rate is:

(a)       if the national minimum wage was increased after the date of the applicable BSWATR in the relevant financial year—the assessed wage shown in the applicable BSWATR as adjusted for the national minimum wage increase; or

(b)       in all other cases—the assessed wage shown in the applicable BSWATR.

(2)       The applicable BSWATR for a person for an eligible period is:

(a)       if there is one BSWATR for the person which is applicable to all of the days in the eligible period—that BSWATR;

(b)       if there is more than one BSWATR applicable to an eligible period—the BSWATR which shows the highest assessed wage; or

(c)       if there is no BSWATR applicable to any of the days in the eligible period because the person was paid a training wage while waiting for a BSWAT assessment to be completed—the average BSWATR assessed rate for the eligible period at the ADE where the person was employed.

(3)       The average BSWATR assessed rate for an ADE is the average assessed wage of all employees in the eligible period at the ADE whose wages were assessed with the BSWAT.

3.09         Step 4—Work out the person's actual wage for each eligible period

A person's actual wage for an eligible period is the greater of:

(a)       the amount the person was paid as determined in Step 1 (section 3.06); and

(b)       the amount worked out by multiplying the BSWATR assessed rate determined in Step 3 by the number of hours worked determined in Step 2 (section 3.07).

Part 3—Working out the productivity-scored wage

3.10         Productivity-scored wage to be worked out in accordance with this Part

For subsection 8(5) of the Act, a person's productivity-scored wage is an hourly wage worked out in accordance with this Part.

3.11         Step 1—Determine the BSWATR award rate

For each eligible period, the BSWATR award rate is:

(a)       if the national minimum wage was increased after the date of the applicable BSWATR in the relevant eligible financial year—the hourly award rate shown in the applicable BSWATR as adjusted for the national minimum wage increase; or

(b)       in all other cases—the hourly award rate shown in the applicable BSWATR.

3.12         Step 2—Determine the BSWATR productivity component percentage for each eligible period

For each eligible period, the BSWATR productivity component percentage is the productivity score (expressed as a percentage) shown in the applicable BSWATR.

3.13         Step 3—Work out the person's productivity-scored rate for the eligible period

The person's productivity-scored rate for the eligible period is determined by multiplying the rate determined in Step 1 (section 3.11) by the percentage determined in Step 2 (section 3.12).

3.14         Step 4—Work out the productivity-scored wage for each eligible period

For each eligible period, the productivity-scored wage for the person is the amount worked out by multiplying the following two amounts:

(a)       the hours worked determined in accordance with section 3.07; and

(b)       the person's productivity-scored wage determined in accordance with section 3.13.

Part 4—Working out the payment amount

3.15         Payment amount to be worked out in accordance with this Part

For subsection 8(1) of the Act, the payment amount for a person is worked out in accordance with this Part.

3.16         Step 1—Determine the excess amount for each eligible period

(1)       If the actual wage for an eligible period (worked out in accordance with section 3.09) is more than the productivity-scored wage for that period (worked out in accordance with section 3.14), the excess amount for the period is nil.

(2)       In all other cases, the excess amount is the amount worked out by subtracting the actual wage for an eligible period (worked out in accordance with section 3.09) from the productivity-scored wage for that period (worked out in accordance with section 3.14).

3.17         Step 2—Determine the excess amount for each eligible financial year

Add up the excess amount for each eligible period in an eligible financial year to obtain the excess amount for each eligible financial year.

3.18         Step 3—Index the amount for each eligible financial year to calculate the total excess amount

(1)       Apply subsection 8A(1) of the Act to the amount for each eligible financial year as if the excess amount for each eligible financial year were an annual portion.

(2)       The result from Step 5 from the method statement to subsection 8A(1) of the Act is the total excess amount.

3.19         Step 4—Work out the payment amount

(1)       Divide the total excess amount for the person worked out in Step 3 (section 3.18) in half. 

Note:      Paragraph 8(3)(a) of the Act provides that the amount a person should receive should broadly reflect the amount that is 50% of the excess of a productivity-scored wage over an actual wage indexed to reflect compounding increases in the Consumer Price Index since the financial years in which eligible days occurred.

(2)       The before-tax payment amount for the person is the amount worked out in subsection (1) rounded to the nearest dollar, unless:

(a)       the amount is less than $1—in which case the before-tax payment amount for the person is nil; or

(b)       the amount is more than $1, but less than $100—in which case the before-tax payment amount for the person is $100.

Note:      This provision of the Rules applies the formula in subsection 8(4) of the Act.

(3)       If the person would not be required to pay tax on the before-tax payment amount worked out in subsection (2), the before-tax payment amount is the payment amount.

(4)       If the person would be required to pay tax on the before-tax payment amount worked out in subsection (2), the payment amount is the before-tax payment amount plus an amount so that the payment amount is equal to the before-tax payment amount which the person would have been entitled to receive had the payment amount been free and clear of tax.

3.20         Calculating the amount on account of tax

(1)       In order to work out whether the person would be required to pay tax on the before-tax payment amount, and if so, the amount of that tax, all of the following assumptions must be made:

(a)       that the person is single with no dependents;

(b)       that the amount that the person earned in the 2015-2016 financial year as recorded in the person's centrelink or CRS data (whichever is higher) is the amount that the person earned in the 2016-2017 financial year; and

(c)       that the person is not eligible for the Senior Australians and Pensioners Tax Offset.

Chapter 4—Extensions of time and acceptance

4.01         Extensions of time for acceptance period and review period

(1)       For subsection 22(1) of the Act, a person may request an extension to the acceptance period for an offer or the period for applying for review orally or in writing.

(2)       A request must state that an extension is sought and contain sufficient information to enable the Department to identify the person making the request. 

4.02         Lodging an acceptance

For paragraph 35(2)(b) of the Act, an acceptance must be lodged by posting the signed original document to the address specified in paragraph 1.04(c).

 

Chapter 5—Internal review

5.01         Applications for internal review

(1)       For subsection 24(4) of the Act, a person may apply for internal review orally or in writing.

(2)       An application must state why the person considers that the decision was wrong and that a review is sought.

(3)       An application must also include sufficient information to enable the Department to identify the person and the decision in relation to which internal review is sought.

5.02         Withdrawal of application for internal review

(1)       For subsection 25(1) of the Act, a person may withdraw an application for internal review orally or in writing.

(2)       The withdrawal must include sufficient information to enable the Department to identify the person and the application for internal review which is being withdrawn.

Chapter 6—External review

Part 1—Applications and withdrawals

6.01         Application for external review

(1)       For subsection 26(4) of the Act, a person may apply for external review orally or in writing.

(2)       An application must state why the person considers that the decision was wrong and that a review is sought.

(3)       An application must also include sufficient information to enable the Department to identify the person and the decision in relation to which external review is sought.

6.02         Withdrawal of application for external review

(1)       For subsection 31(1) of the Act, a person may withdraw an application for external review orally or in writing.

(2)       The withdrawal must include sufficient information to enable the Department to identify the person and the application for external review which is being withdrawn.

Part 2—Remuneration of external reviewers

6.03         Remuneration payable to external reviewers

For subsection 27(4) of the Act, a person appointed as an external reviewer is entitled to remuneration calculated in accordance with this Part.

6.04         Where the external reviewer has a Commonwealth rate

If a person appointed as an external reviewer has an approved rate determined pursuant to Appendix D of the Legal Services Directions 2005, the person is entitled to be paid his or her approved hourly and daily rate.

6.05         Where the external reviewer does not have a Commonwealth rate

(1)       This section applies if a person appointed as an external reviewer does not have an approved rate determined pursuant to Appendix D of the Legal Services Directions 2005.

(2)       The person's daily rate is the amount specified in Column 3 of the table which corresponds to the person's experience in Column 2.

 

 

 

Column 1

Item

Column 2

Experience

Column 3

Daily rate

1

The person has been a Justice of the High Court or a judge of another federal court or of a court of a State or Territory

$4,500

2

Item 1 does not apply to the person and the person has been enrolled for 20 years or more

$4,000

3

Item 1 does not apply to the person and the person has been enrolled for 15 years or more but less than 20 years

$3,000

4

Item 1 does not apply to the person and the person has been enrolled for 10 years or more but less than 15 years

$2,500

 

(3)       The person's hourly rate is one-sixth of the person's daily rate.

6.06         Hourly and daily rates

(1)       If a person appointed as an external reviewer works more than six hours in any day, he or she is entitled to the daily rate for that day.

(2)       If a person appointed as an external reviewer works less than six hours in any day, he or she is entitled to the hourly rate for each of the hours he or she worked on that day.

6.07         Rates are inclusive of GST

A person appointed as an external reviewer is not entitled to any additional amount on account of GST.

Part 3—External review process

6.08         Requirements for external review

For subsection 28(2) of the Act, an external reviewer must conduct the review on the papers and without an oral hearing. 

Chapter 7—Nominees

Part 1—Functions and responsibilities of nominees

7.01         Modification of duty in relation to participants who cannot formulate preferences

(1)       For subsection 46(4) of the Act, if the participant cannot formulate preferences for the purposes of subsection 46(1) of the Act, it is the duty of a nominee to ascertain what the participant would likely want.

(2)       A nominee may ascertain what the participant would likely want by doing any or all of the following things:

(a)       considering any previous views or wishes expressed by the participant;

(b)       consulting with any court-appointed decision-maker;

(c)       consulting with any participant-appointed decision-maker; or

(d)       consulting with family members, carers or informal supporters of the participant.

7.02         Other duties

(1)       For paragraph 46(5) of the Act, this section prescribes other duties of a nominee.

(2)       A nominee must support decision-making by the participant personally.

(3)       A nominee must have regard, and give appropriate weight, to the views of the participant. 

(4)       A nominee must become sufficiently familiar with the financial affairs of the participant so that the nominee can discharge his or her duties under the Act and these rules.

(5)       A nominee must avoid or manage any conflict of interest in relation to the nominee and the participant.

(6)       If more than one person is appointed as nominee, a further duty of each of them is to consult with the others before doing any act under, or for the purposes of, the Act.

(7)       A nominee must provide support to the participant to express their preferences in making decisions in respect of accepting or declining an offer from the BSWAT payment scheme.

(8)       A nominee must communicate to the participant the process, decision and implications of decisions relating to the BSWAT payment scheme.

(9)       A nominee must promote and safeguard the participant's human rights and act in the way least restrictive of those rights when making decisions relating to the BSWAT payment scheme.

(10)    A nominee must recognise and respect the cultural and linguistic circumstances of the participant and ensure an appropriate form of communication for the purposes of communicating about the BSWAT payment scheme is used.

(11)    A nominee must inform the Secretary of the following circumstances:

(a)       the nominee has a conviction for an offence under a law of the Commonwealth, a State or Territory involving abuse, violence or fraud;

(b)       the nominee has, or is likely to acquire, a conflict of interest in relation to the nominee and the participant; or

(c)       the nominee believes that he or she cannot comply with his or her obligations under the Act and these rules.

(12)    A conflict of interest in relation to a nominee and a participant, means any conflict between the interests of the nominee (or an employee of the nominee) and the interests of the participant, whether pecuniary or otherwise, that would impact on the nominee's ability to carry out their role as a nominee.

Part 2—Appointment and cancellation or suspension of appointment

7.03         Persons who must not be appointed as nominees

(1)       For paragraph 51(5)(a) of the Act, the following persons are persons who must not be appointed as nominees:

(a)       a person under 18 years of age;

(b)       a person employed by the Department;

(c)       a recipient of a grant made under Part II of the Disability Services Act 1986 or an employee of such a recipient;

(d)       a person who the Secretary has decided must sign a nominee declaration in accordance with section 7.04 but who has not done so.

(2)       However, a person mentioned in paragraph (b) or (c) of subsection (1) may be appointed as a nominee in relation to a participant if:

(a)       the person is a relative of the participant; or

(b)       the person is a court-appointed decision-maker in relation to the participant; or

(c)       the person is a participant-appointed decision-maker in relation to the participant; or

(d)       the person is a nominee in relation to the participant for the purposes of the social security law and has powers and responsibilities relevant to the duties of a nominee under the Act and these rules; or

(e)       the Secretary determines that there are circumstances which make it inappropriate for paragraph (b) or (c) of subsection (1) to apply in the case of the person and the participant.

(3)       In these rules, relative of a participant means any of the following:

(a)       the spouse of the participant;

(b)       a parent or remoter lineal ancestor of the participant or of the participant's spouse;

(c)       a child or remoter lineal descendant of the participant or of the participant's spouse;

(d)       a brother or sister of the participant or of the participant's spouse;

(e)       an uncle, aunt, nephew or niece of the participant or of the participant's spouse;

(f)        the spouse of a person specified in paragraph (b), (c), (d) or (e);

(g)       a person who the Secretary is satisfied is in a culturally recognised relationship with the participant.

7.04         Nominee declaration

(1)       The Secretary may decide that a person must make a declaration in accordance with this section.

(2)       A declaration complies with this section if it is made in the approved form and is accompanied by such information and documents as are specified in the approved form.

7.05         Criteria and matters for considering appointment

(1)       For paragraph 51(5)(b) of the Act, the following criteria and matters are prescribed as criteria and matters which the Secretary is to apply, or have regard to, in considering the appointment of a nominee:

(a)       the presumption that, if the participant has a court-appointed decision-maker or a participant-appointed decision-maker, and the powers and responsibilities of that person are comparable with those of a nominee, that person should be appointed as nominee;

(b)       the degree to which the person:

(i)         knows, and is in a relationship of trust with, the participant; and

(ii)        understands and is committed to performing the duties of a nominee; and

(iii)       is sensitive to the cultural and linguistic circumstances of the participant; and

(iv)      is familiar with, and able to work with, any communication system or other technological supports of the participant;

(c)       the degree to which the person is willing and able to:

(i)         act in conjunction with other representatives and supporters of, and carers for, the participant to maximise the participant’s wellbeing; and

(ii)        undertake the kinds of activities that a nominee is required to undertake in performing their functions under the Act; and

(iii)       involve the participant in decision-making processes; and

(iv)      assist the participant to make decisions for himself or herself; and

(v)       ascertain what judgements and decisions the participant would have made for himself or herself;

(d)       the desirability of preserving family relationships and informal support networks of the participant;

(e)       any existing arrangements that are in place between the person and the participant;

(f)        any relevant views of:

(i)         carers who assist the participant to manage their day-to-day activities and make decisions; and

(ii)        other persons who provide support to the participant;

(g)       any relevant conviction for an offence under Commonwealth, State or Territory law;

(h)       any conflict of interest in relation to the person and the participant;

(i)         whether there is a court-appointed decision-maker, and if so the views of that person;

(j)         whether there is a participant-appointed decision-maker, and if so the views of that person; and

(k)       whether the participant already has a nominee appointed under the Act.

Note:      The Secretary may appoint more than one person to be a nominee of a participant for the purposes of the Act: see subsection 50(6) of the Act.

(2)       To avoid doubt, the Secretary is not required to make inquiries in respect of any matter specified in subsection (1).

7.06         Requirement to consult

For paragraph 56(a) of the Act, the Secretary must consult, in writing, with any court-appointed decision-maker or participant-appointed decision-maker in relation to any appointment of a nominee.

7.07         Cancellation or suspension of appointment of a nominee

For paragraph 56(b) of the Act, when cancelling or suspending the appointment of a nominee, the Secretary, must have regard to the following:

(a)       any breach of a duty the nominee has to the participant under the Act or these rules;

(b)       the previous conduct of the nominee in relation to the participant;

(c)       the views of the participant, and any person who cares for or supports the participant;

(d)       the impact on the participant of any cancellation or suspension of appointment;

(e)       whether the nominee has been convicted of an offence under Commonwealth, State or Territory law that is reasonably likely to compromise the ability of the person to act as nominee; and

(f)        whether the participant still needs a nominee.

Part 3—Review of certain decisions about nominees

7.08         Applications for review

(1)       For subsection 59(3) of the Act, an application for review of decisions about nominees may be made orally or in writing.

(2)       An application for review must contain sufficient information to enable the Department to identify the decision in respect of which review is sought.

7.09         Withdrawal of application for review

(1)       For subsection 60(1) of the Act, a person may withdraw an application for review orally or in writing.

(2)       The withdrawal must include sufficient information to enable the Department to identify the application for review which is being withdrawn.

Chapter 8—Disclosure of protected information

Part 1—Purpose and outline

8.01         Purpose of this Chapter

(1)       This Chapter contains rules for the purposes of section 82 of the Act. 

(2)       Part 2 of this Chapter contains the rules with which the Secretary must comply in making disclosures in the public interest under paragraph 81(1)(a) of the Act.

(3)       Part 3 of this Chapter contains the rules with which the Secretary must comply in making disclosures to other agencies under sub-paragraph 81(1)(b)(i) of the Act.

Part 2—Rules for the purposes of making public interest certificates

8.02         When a public interest certificate may be given

The Secretary may only certify that it is necessary in the public interest for protected information to be disclosed under paragraph 81(1)(a) if the Secretary is satisfied that:

(a)       the information cannot reasonably be obtained from a source other than the Department; and

(b)       the recipient:

(i)         has a genuine and legitimate interest in the information in light of the purpose for which it is to be disclosed; or

(ii)        is a Minister.

8.03         Secretary must consider disclosure principles

(1)       In exercising the Secretary's power under paragraph 81(1)(a), the Secretary must consider the principle that protected information should ordinarily only be disclosed in a circumstance identified in the table to this section.

Column 1

Item

Column 2

Circumstance in which protected information may be disclosed

1

Disclosure is reasonably necessary to prevent, or lessen, a threat to the life, health, welfare or safety of any person, or to public health or safety.

2

Disclosure is reasonably necessary for the enforcement of the criminal law or a law imposing a pecuniary penalty, or for the protection of the public revenue.

3

Disclosure is reasonably necessary to brief a Minister about:
(a)   complaints or issues raised by or on behalf of a person with the Minister so that the Minister can respond to the complaints or issues; or
(b)   a meeting or forum that the Minister is to attend; or
(c)   issues raised or proposed to be raised publicly by or on behalf of the person to whom the protected information relates so that the Minister can respond by correcting a mistake of fact, a misleading perception or impression, or a misleading statement; or
(d)   the operation of the BSWAT payment scheme.

4

Disclosure is reasonably necessary to enable any person or body to locate a person who has been reported as missing.

5

Disclosure is reasonably necessary to:

(a)   assist a court, coronial enquiry, Royal Commission, department, or any other authority of the Commonwealth, a State or Territory in relation to the death of the person; or

(b)   help a person locate a relative or beneficiary of a deceased person; or

(c)   help an individual or authority responsible for the administration of the estate of a deceased person in relation to the administration of the estate of the deceased person.

6

Disclosure is reasonably necessary for the establishment, exercise or defence of a legal or equitable claim.

7

Disclosure is to a child welfare agency and is reasonably necessary in order for a child protection agency to contact the parent or relative of a child or to assist a child welfare agency to carry out its responsibilities relating to the safety, welfare or wellbeing of a child.

(2)       In these rules, child welfare agency means an agency of the Commonwealth or of a State or Territory that has responsibilities relating to the safety, welfare or care of children.

Part 3—Rules for the purposes of disclosures to other agencies

8.04         When disclosures may be made to other agencies

(1)       The Secretary may only disclose protected information under sub-paragraph 81(1)(b)(i) of the Act to a recipient agency if:

(a)       the recipient agency requests it for a purpose related to the functions of the recipient agency; or

(b)       the Secretary considers that it is necessary to disclose the protected information in order for the recipient agency to discharge its functions in relation to the person to whom the information relates.

(2)       In these rules, recipient agency means the Secretary of a Department of State of the Commonwealth or the head of an authority of the Commonwealth.

Chapter 9—Legal and financial counselling services

Part 1—General

9.01         Purpose and simplified outline of this Chapter

(1)       The purpose of this Chapter is to give effect to some of the Commonwealth's functions and powers under section 98A of the Act.

(2)       The following is a simplified outline of this Chapter.

Eligible advisers can apply to the Secretary to be included on a published list of people who are interested in providing legal advice certificates or financial counselling certificates.  Legal practitioners (and legal practices) are eligible advisers.  Financial counsellors who receive funding from a local or State government, or the Commonwealth, are also eligible advisers.

Eligible advisers can also make claims for payments from the Secretary for providing services in relation to a legal advice certificate or financial counselling certificate.

9.02         Financial counsellors

For subsection 37(2) of the Act, the associations of financial counsellors identified in the table are prescribed.

Column 1

Item

Column 2

Prescribed financial counselling associations

1

Financial Counselling Tasmania

2

Financial and Consumer Rights Council

3

Financial Counsellors Association of New South Wales

4

Financial Counsellors Association of Queensland

5

Money Workers Association of the NT

6

Financial Counsellors ACT

7

Financial Counsellors Association of Western Australia

8

South Australian Financial Counsellors' Association

9.03         Meaning of eligible adviser

In these rules, eligible adviser means any of the following:

(a)       a legal practitioner;

(b)       a law firm;

(c)       a multidisciplinary partnership;

(d)       an incorporated legal practice;

(e)       a financial counsellor;

(f)        an organisation which:

(i)         employs at least one financial counsellor; and

(ii)        is established to provide financial counselling services.

Part 2—Publication scheme

9.04         Secretary to establish register of eligible advisers

(1)       The Secretary must establish a register of eligible advisers who have applied to be included on the register.

(2)       The Secretary must publish the register on the Department's website.

9.05         Eligible advisers may apply to be included in register

(1)       An eligible adviser may apply in the approved form to be included in the register.

(2)       An application must be accompanied by such information and documents as are specified in the approved form.

(3)       The Secretary must include the details of the eligible adviser on the register unless the Secretary is satisfied that the eligible adviser is not a fit and proper person.

9.06         Removal of eligible advisers from the register

The Secretary must remove a person's details from the register of eligible advisers if:

(a)       the person requests, in writing, the Secretary to do so; or

(b)       the Secretary is satisfied that the person is not an eligible adviser; or

(c)       the Secretary is satisfied that the person is not a fit and proper person.

Part 3—Payments for services provided by an eligible adviser

9.07         Eligible adviser may make a claim for payment

(1)       An eligible adviser may make a claim in the approved form for a payment under this Part.

(2)       The claim must include:

(a)       the amount claimed; and

(b)       a copy of the legal advice certificate or financial counselling certificate as applicable.

(3)       A claim must be accompanied by such information and documents as are specified in the approved form.

9.08         Maximum amount of a claim

General rule

(1)       The maximum amount of a claim under section 9.07 is:

(a)       in the case of a claim in respect of a financial counselling certificate—$435; or

(b)       in the case of a claim in respect of a legal advice certificate—$850.

Where the nominee is a public trustee or public guardian

(2)       However, if a nominee of the participant is a public trustee or public guardian (however described), the maximum amount of a claim in respect of a legal advice certificate is $290.

Maximum amounts of claim inclusive of GST

(3)       The maximum amounts of a claim are inclusive of GST and an eligible adviser is not entitled to make any further claim on account of GST.

9.09         Secretary to decide claim

(1)       If the Secretary receives a claim for payment under section 9.07, the Secretary must decide whether to:

(a)       approve payment of the claim; or

(b)       refuse payment of the claim.

(2)       In deciding whether to approve or refuse payment of the claim, the Secretary:

(a)       must consider whether the amount claimed reflects the work undertaken; and

(b)       may consider any other relevant matter.

(3)       If the Secretary refuses payment of a claim, the Secretary must provide a statement to the person who made the claim setting out why the claim was refused and inviting the person to make another claim under section 9.07 addressing those issues.