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Rules/Other as amended, taking into account amendments up to Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2018
Administered by: Social Services
Registered 18 May 2018
Start Date 21 Apr 2018
Table of contents.

 

Business Services Wage Assessment Tool Payment Scheme Rules 2015

 

 

made under section 102 of the Business Services Wage Assessment Tool Payment Scheme Act 2015

 

 

 

Compilation No. 3

 

 

Compilation date:                           21 April 2018

 

 

Includes amendments up to:            Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2018 – F2018L00499

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Prepared by the Office of Parliamentary Counsel, Canberra


About this compilation

This compilation

This is a compilation of the Business Services Wage Assessment Tool Payment Scheme Rules 2015 that shows the text of the law as amended and in force on 21 April 2018 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. 

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

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. 3

Chapter 2— Eligibility and applications    4

Part 1— Eligibility   4

2.01            Evidence of eligibility—intellectual impairment 4

Part 2— Applications   4

2.02            Lodging applications. 4

Chapter 3— Calculating the payment amount  5

Part 1— Outline and general concepts   5

3.01            Simplified outline. 5

3.02            What is an eligible financial year and eligible period?. 5

3.03            What happens if an eligible period straddles two eligible financial years?  6

3.04            Decimal places. 6

Part 2— Working out the actual wage   6

3.05            Actual wage to be worked out in accordance with this Part 6

3.06            Step 1—Determine the person's gross pay for each eligible period.. 6

3.07            Step 2—Determine the number of hours the person worked in each eligible period   7

3.08            Step 3—Determine the BSWATR assessed rate for each eligible period.. 8

3.09            Step 4—Work out the person's actual wage for each eligible period.. 9

Part 3— Working out the productivity-scored wage   10

3.10            How to work out a person's productivity-scored wage. 10

3.11            Step 1—Determine the BSWATR award rate. 10

3.12            Step 2—Determine the BSWATR productivity component percentage for each eligible period   10

3.13            Step 3—Work out the person's productivity-scored rate for the eligible period   10

3.14            Step 4—Work out the person's productivity-scored wage for each eligible period   10

Part 4— Working out the payment amount  12

3.15            Payment amount to be worked out in accordance with this Part 12

3.16            Step 1—Determine the excess amount for each eligible period.. 12

3.17            Step 2—Determine the excess amount for each eligible financial year 12

3.18            Step 3—Index the amount for each eligible financial year to calculate the total excess amount 12

3.19            Step 4—Work out the payment amount 12

3.20            Calculating the amount on account of tax. 13

Part 5— Training wage determinations   14

3.21            Purpose. 14

3.22            Making a training wage determination. 14

3.23            When must the Secretary make a training wage determination. 14

3.24            Average BSWATR assessed rate. 14

3.25            Average BSWATR productivity-scored rate. 15

Chapter 4— Extensions of time and acceptance    16

4.01            Extensions of time for acceptance period and review period.. 16

4.02            Lodging an acceptance. 16

Chapter 5— Internal review     17

5.01            Applications for internal review.. 17

5.02            Withdrawal of application for internal review.. 17

Chapter 6— External review     18

Part 1— Applications and withdrawals   18

6.01            Application for external review.. 18

6.02            Withdrawal of application for external review.. 18

Part 2— Remuneration of external reviewers   18

6.03            Remuneration payable to external reviewers. 18

6.04            Where the external reviewer has a Commonwealth rate. 18

6.05            Where the external reviewer does not have a Commonwealth rate. 18

6.06            Hourly and daily rates. 19

6.07            Rates are inclusive of GST. 19

Part 3— External review process   19

6.08            Requirements for external review.. 19

Chapter 7— Nominees    20

Part 1— Functions and responsibilities of nominees   20

7.01            Modification of duty in relation to participants who cannot formulate preferences  20

7.02            Other duties. 20

Part 2— Appointment and cancellation or suspension of appointment  21

7.03            Persons who must not be appointed as nominees. 21

7.04            Nominee declaration. 22

7.05            Criteria and matters for considering appointment 22

7.06            Requirement to consult 23

7.07            Cancellation or suspension of appointment of a nominee. 23

Part 3— Review of certain decisions about nominees   24

7.08            Applications for review.. 24

7.09            Withdrawal of application for review.. 24

Chapter 8— Disclosure of protected information    25

Part 1— Purpose and outline   25

8.01            Purpose of this Chapter 25

Part 2— Rules for the purposes of making public interest certificates   25

8.02            When a public interest certificate may be given. 25

8.03            Secretary must consider disclosure principles. 25

Part 3— Rules for the purposes of disclosures to other agencies   26

8.04            When disclosures may be made to other agencies. 26

Chapter 9— Legal and financial counselling services    28

Part 1— General 28

9.01            Purpose and simplified outline of this Chapter 28

9.02            Financial counsellors. 28

9.03            Meaning of eligible adviser 28

Part 2— Publication scheme   29

9.04            Secretary to establish register of eligible advisers. 29

9.05            Eligible advisers may apply to be included in register 29

9.06            Removal of eligible advisers from the register 29

Part 3— Payments for services provided by an eligible adviser  29

9.07            Eligible adviser may make a claim for payment 29

9.08            Maximum amount of a claim... 29

9.09            Secretary to decide claim... 30

Chapter 10— Deceased persons    31

10.01         Purpose of this Chapter. 31

10.02         Making an application to be a legal personal representative. 31

10.03         Secretary may determine that a person is a legal personal representative  31

10.04         More than one LPR applicant for a deceased person.. 32

10.05         Cancellation of determination.. 32

10.06         One approved legal personal representative. 32

10.07         Effect of making a payment 33

Endnotes   34

Endnote 1—About the endnotes.. 34

Endnote 2—Abbreviation key.. 35

Endnote 3—Legislation history.. 36

Endnote 4—Amendment history.. 37

EDITORIAL CHANGES... 39

 


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 2015.

ADE means Australian Disability Enterprise.

applicable BSWATR—see subsection 3.08(2).

applicable training wage determination means:

(a)       if a training wage determination has been made under subsection 3.22(1) for an ADE in the relevant financial year—that training wage determination;

(b)       if the Secretary decides under subsection 3.22(4) not to make a training wage determination for an ADE in a particular financial year and there is a training wage determination for that ADE in a subsequent financial year—the training wage determination for the next available subsequent financial year;

(c)       if the Secretary decides under subsection 3.22(4) not to make a training wage determination for an ADE in a particular financial year and there is no training wage determination made for that ADE in a subsequent financial year—the most recent training wage determination made for that ADE.

approved legal personal representative—see subsection 10.03(4).

average BSWATR assessed rate—see section 3.24.

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:

(d)       has guardianship of the participant; or

(e)       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).

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

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

training wage determination means a determination made under Part 5 of Chapter 3.

(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)            For the purposes of subsection (2):

(a)       the evidence that may be used to determine a person's normal pay period 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 a reporting period used by Centrelink in relation to the person, the information recorded in the person's centrelink data

3

If the centrelink data does not record a reporting period used by Centrelink in relation to the person, and the person's CRS data records information in relation to the interval at which the person is normally paid, the information recorded in the person's CRS data

4

If the information recorded in the person's CRS data does not record information in relation to the interval at which the person is normally paid, and other data records such information, the information recorded in the other data

 

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 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; and

(d)       a person making a decision or exercising a power under the Act or these rules may consider evidence not mentioned in the table if the person is satisfied that the evidence would assist in determining the before-tax salary that was paid or was payable by an ADE to the person.

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; and

(d)       a person making a decision or exercising a power under the Act or these rules may consider evidence not mentioned in the table if the person is satisfied that the evidence would assist in determining the hours the person worked at an ADE.

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

4

If the information recorded in the person’s CRS data does not record the number of hours the person worked at an ADE in the eligible period, or that information is insufficient to determine those hours - the hours shown in the applicable BSWATR as determined by paragraph 3.08(2)(d)

(3)       If none of the evidence mentioned in the table in subsection (2) is available for the eligible period, the number of hours worked by the person in that period is the average of the hours worked on 20 September and 20 March in the financial year (or if that day is not a business day, the next business day) in which the period occurs by employees who were paid under a BSWAT assessment at the ADE at which the person was employed, having regard to the evidence that is available to the Secretary.

 

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 from the date of that increase;

(b)       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 and a BSWAT assessment was never completed in relation to the person—the average BSWATR assessed rate specified in the applicable training wage determination made under Part 5;

(c)       if there is insufficient evidence to determine the person’s BSWATR or the BSWATR is otherwise not available for the eligible period and there is not a BSWATR that applies to the person’s employment at the ADE in another eligible period between 1 January 2004 and 31 January 2015 – the average BSWATR assessed rate determined under section 3.24, for the ADE in which the person was employed during the relevant financial year; or

(d)       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;

(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, and a BSWAT assessment was ultimately completed in relation to the person—the BSWATR which records the person's first BSWAT assessment; or

(d)       if there is insufficient evidence to determine the person’s BSWATR or the person’s BSWATR is otherwise not available for the eligible period – the substituted BSWATR determined under subsection (3).

(3)       The following table identifies the substituted BSWATR for a person for an eligible period (the relevant eligible period).

 

Item

If there is…

The substituted BSWATR for a person for the relevant eligible period is…

1

One BSWATR applicable to the person that applies to another eligible period during the period between 1 January 2004 and 31 January 2015

that BSWATR.

2

More than one BSWATR applicable to the person where:

(a) those BSWATRs apply to one or more eligible periods, other than the relevant eligible periods, during the period between 1 January 2004 and 31 January 2015; and

(b) the date of one or more of those BSWATRs is earlier than the relevant eligible period

the earlier BSWATR that is closest to the relevant eligible period.

3

More than one BSWATR applicable to the person where those BSWATRs:

(a) apply to one or more eligible periods, other than the relevant eligible period, during the period between 1 January 2004 and 31 January 2015; and

(b) do not have a date earlier than the relevant eligible period

the BSWATR that is closest to the relevant eligible period.

 

 

(4)       In making a determination of the payment amount for a person under section 17 of the Act, the Secretary may presume that the person was employed by the relevant ADE and awaiting a BSWAT assessment for a period of 180 days, unless otherwise indicated by evidence.

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         How to work out a person's productivity-scored wage

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

(2)       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, and a BSWAT assessment was never completed in relation to the person, skip Steps 1 to 3 and go straight to Step 4. 

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 from the date of that 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 4Work out the person's productivity-scored wage for each eligible period

For each eligible period, the productivity-scored wage of the person is the amount worked out by multiplying:

(a)       if there is a BSWATR applicable to any of the days in the eligible period—the following two amounts:

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

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

(b)       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 and a BSWAT assessment was ultimately completed in relation to the person—the following two amounts:

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

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

(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 and a BSWAT assessment was never completed in relation to the person—the following two amounts:

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

(ii)        the average productivity-scored wage specified in the applicable training wage determination made under Part 5.

(d)       if there is insufficient evidence to determine the applicable BSWATR, or the person’s BSWATR is otherwise not available for the eligible period in relation to the person but there is a BSWATR applicable to the person for a different eligible period during the period between 1 January 2004 and 31 January 2015 – the following two amounts:

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

(ii)        the person’s productivity-scored rate determined in accordance with section 3.13.

(e)       if there is insufficient evidence to determine the applicable BSWATR, or the person’s BSWATR is otherwise not available for the eligible period in relation to the person and there is no BSWATR applicable to the person for a different eligible period during the period between 1 January 2004 and 31 January 2015 – the following two amounts:

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

(ii)        the average productivity-scored wage specified in the applicable training wage determination made under Part 5.

 

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)       Multiply the total excess amount for the person worked out in Step 3 (section 3.18) by 0.7. 

Note:      Paragraph 8(3)(a) of the Act provides that the amount a person should receive should broadly reflect the amount that is 70% 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;

(c)       that the amount that the person earned in the 2016-2017 financial year as recorded in the person's centrelink or CRS data (whichever is higher) is the amount that the person earned in the 2017-2018 financial year;

(d)       that the amount that the person earned in the 2017-2018 financial year as recorded in the person's centrelink or CRS data (whichever is higher) is the amount that the person earned in the 2018-2019 financial year; and

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

(2)       If a person makes an application under the BSWAT scheme on behalf of a deceased person (in accordance with Chapter 10 of these Rules), 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, it is necessary to determine the tax liability (if any) of the deceased estate.

(3)       For the purposes of subsection (2), in order to work out the tax liability (if any) of the deceased estate, the following assumptions must be made:

(a)       section 99 of the Income Tax Assessment Act 1936 (ITAA) applies to the deceased estate; and

(b)       the deceased estate has not received and will not receive any other income in the income tax year that any payment amount was made to the deceased person under the Act or these rules.

Part 5—Training wage determinations

3.21         Purpose

The purpose of this Part is to provide a mechanism for calculation of payment amounts for people who were paid a training wage while waiting for a BSWAT assessment to be completed and in relation to whom a BSWAT assessment was never completed.

3.22         Making a training wage determination

(1)       The Secretary may make a training wage determination which applies to an ADE in a particular financial year.

(2)       A training wage determination must specify:

(a)       the average BSWATR assessed rate for an ADE in a financial year calculated in accordance with section 3.24;

(b)       the average BSWATR productivity-scored rate for an ADE in a financial year calculated in accordance with section 3.25.

(3)       The Secretary must publish training wage determinations made under this Part on the Department's website.

(4)       If the Secretary is not satisfied that there is sufficient evidence to make a training wage determination under subsection 3.22(1), the Secretary may decide not to make a training wage determination for an ADE in a particular financial year.  

3.23         When must the Secretary make a training wage determination

The Secretary must make a training wage determination for an ADE for a financial year if such a determination is required under paragraph 3.08(1)(b), 3.08(2)(c), 3.14(b) or 3.14(c) unless the Secretary decides not to do so under subsection 3.22(4).

3.24         Average BSWATR assessed rate

The Secretary is to determine the average BSWATR assessed rate for an ADE for a financial year by averaging the following amounts:

(a)       the average assessed wage of all employees at the ADE whose wages were assessed with the BSWAT as at 20 September of the eligible financial year (or the next business day), having regard to the evidence that is available to the Secretary, with wages of employees adjusted for any national minimum wage increase from the date of that increase; and

(b)       the average assessed wage of all employees at the ADE whose wages were assessed with the BSWAT as at 20 March of the eligible financial year (or the next business day), having regard to the evidence that is available to the Secretary, with wages of employees adjusted for any national minimum wage increase from the date of that increase.

3.25         Average BSWATR productivity-scored rate

(1)       The Secretary is to determine the average BSWATR productivity scored rate for an ADE for a financial year in accordance with this section.

(2)       First, work out the average BSWATR award rate by averaging the following amounts:

(a)       the average hourly award rate shown in the applicable BSWATR of all employees at the ADE whose wages were assessed with the BSWAT as at 20 September of the eligible financial year (or the next business day), having regard to the evidence that is available to the Secretary, with rates for employees adjusted for any national minimum wage increase from the date of that increase; and

(b)       the average hourly award rate shown in the applicable BSWATR of all employees at the ADE whose wages were assessed with the BSWAT as at 20 March of the eligible financial year (or the next business day), having regard to the evidence that is available to the Secretary, with rates for employees adjusted for any national minimum wage increase from the date of that increase.

(3)       Secondly, work out the average BSWATR productivity component percentage by averaging the following amounts:

(a)       the average BSWATR productivity score (expressed as a percentage) as shown in the BSWATR of all employees at the ADE whose wages were assessed with the BSWAT as at 20 September of the eligible financial year (or the next business day), having regard to the evidence that is available to the Secretary; and

(b)       the average BSWATR productivity score (expressed as a percentage) as shown in the BSWATR of all employees at the ADE whose wages were assessed with the BSWAT as at 20 March of the eligible financial year (or the next business day), having regard to the evidence that is available to the Secretary.

(4)       Finally, multiply the amount obtained in subsection (2) by the amount obtained in subsection (3) to get the average BSWATR productivity scored rate.

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 2017, 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 2017.

(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.

8

Disclosure is reasonably necessary for the purposes of research or analysis into any of the following:

(a)     calculation and payment of wages using the BSWAT; or;

(b)     the management, operation or administration of the Act or these rules.

(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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 10—Deceased persons

10.01    Purpose of this Chapter

This Chapter is made under subsection 97(3) of the Act and sets out the way in which a person can apply to be recognised by the Secretary as a deceased person's legal personal representative.

10.02    Making an application to be a legal personal representative

(1)       A person may apply to the Secretary in the approved form for a determination that the person is a legal personal representative for a deceased person for the purposes of the Act and these rules.

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

10.03    Secretary may determine that a person is a legal personal representative

(1)       If the Secretary receives an application under section 10.02, the Secretary may determine that the person (the LPR applicant) is a legal personal representative for a deceased person (the deceased person) for the purposes of the Act and these rules if the Secretary is satisfied that:

(a)       the LPR applicant is an executor of the deceased person's estate; or

(b)       the LPR applicant is an administrator of the deceased person's estate; or

(c)       the LPR applicant has control of the deceased person's estate under a law of the Commonwealth or of a state or territory; or

(d)       there is no executor or administrator of the deceased person's estate and it is appropriate (having regard to the matters specified in subsection (3)) for the LPR applicant to be the deceased person's legal personal representative for the purposes of the Act and these rules.

(2)       To avoid doubt, for the purposes of paragraph 10.03(1)(d), the Secretary is not required to make inquiries about whether there is an executor or administrator of the deceased person's estate.

(3)       The matters to which the Secretary must have regard in making a decision under paragraph 10.03(1)(d) are:

(a)       whether it is likely that a person would be appointed as an executor or administrator of the deceased person's estate within the three months following an application under section 10.02; and

(b)       the size of the deceased person's estate; and

(c)       whether the LPR applicant is a relative of the deceased person; and

(d)       whether there is another person who would be a more appropriate legal personal representative for the deceased person; and

(e)       whether, prior to the deceased person's death, the LPR applicant was:

(i)         a nominee of the deceased person under the Act or for the purposes of the social security law; or

(ii)        a court-appointed decision-maker in relation to the deceased person; or

(iii)       a participant-appointed decision-maker in relation to the deceased person; and

(f)        any other relevant matter.

(4)       When the Secretary determines that a LPR applicant is the legal personal representative for a deceased person, the LPR applicant is an approved legal personal representative for that deceased person.

10.04    More than one LPR applicant for a deceased person

If the Secretary receives applications under section 10.02 from more than one LPR applicant in respect of the same deceased person, the Secretary may decline to consider the applications because the Secretary believes that the matter should be dealt with by a court.

10.05Cancellation of determination

(1)       The Secretary may cancel a determination that a person is an approved legal personal representative if the Secretary is satisfied that:

(a)       in the case of a determination made under paragraph 10.03(1)(d)—either:

(i)         the Secretary is satisfied that there is another person who meets a description in paragraph 10.03(1)(a), (b) or (c); or

(ii)        the Secretary is satisfied that it is no longer appropriate (having regard to the matters specified in subsection 10.03(3)) for the person to be the legal personal representative of the deceased person; or

(b)       in any case—the Secretary is satisfied that the person has not acted or is not acting in the best interests of the estate of the deceased person.

(2)       The Secretary may make a decision under subsection (1) without giving notice to any person affected by the decision or affording an opportunity to make submissions if the Secretary is satisfied that to do so is in the best interests of the estate of the deceased person.

(3)       The Secretary may decline to consider whether to make a decision under subsection 10.05(1) because the Secretary believes that the matter should be dealt with by a court.

10.06    One approved legal personal representative

At any one time, there can only be one approved legal personal representative in respect of a deceased person.

10.07    Effect of making a payment

If the Secretary makes a payment under section 40 of the Act to an approved legal personal representative, no other person may make any claim or bring any action against the Secretary on account of any payment made under the Act to the approved legal personal representative.


 

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history. 

 

 

 

 

 

 

 

 

 

 

 

 

Endnote 2—Abbreviation key

 

o = order(s)

ad = added or inserted

Ord = Ordinance

am = amended

orig = original

amdt = amendment

par = paragraph(s)/subparagraph(s)

c = clause(s)

    /sub‑subparagraph(s)

C[x] = Compilation No. x

pres = present

Ch = Chapter(s)

prev = previous

def = definition(s)

(prev…) = previously

Dict = Dictionary

Pt = Part(s)

disallowed = disallowed by Parliament

r = regulation(s)/rule(s)

Div = Division(s)

 

exp = expires/expired or ceases/ceased to have

reloc = relocated

    effect

renum = renumbered

F = Federal Register of Legislation

rep = repealed

gaz = gazette

rs = repealed and substituted

LA = Legislation Act 2003

s = section(s)/subsection(s)

LIA = Legislative Instruments Act 2003

Sch = Schedule(s)

(md) = misdescribed amendment can be given

Sdiv = Subdivision(s)

    effect

SLI = Select Legislative Instrument

(md not incorp) = misdescribed amendment

SR = Statutory Rules

    cannot be given effect

Sub‑Ch = Sub‑Chapter(s)

mod = modified/modification

SubPt = Subpart(s)

No. = Number(s)

underlining = whole or part not

 

    commenced or to be commenced

Endnote 3—Legislation history

 

Name

Registration

Commencement

Application, saving and transitional provisions

Business Services Wage Assessment Tool Payment Scheme Rules 2015

9 July 2015

10 July 2015

 

Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2016

14 April 2016

15 April 2016

 

Business Services Wage Assessment Tool Payment Scheme Amendment Rules (No. 2) 2016

15 December 2016

16 December 2016

 

Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2018

20 April 2018 (F2018L00499)

21 April 2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Endnote 4—Amendment history

Provision affected

How affected

Subsection 1.03(1)

Subsection 3.02(3)

Section 3.05

Paragraph 3.06(2)(c)

Paragraph 3.06(2)(d)

Subsection 3.07(2)

Paragraph 3.07(2)(c)

Paragraph 3.07(2)(d)

Subsection 3.07(3)

Subsection 3.08(1)

Paragraph 3.08(1)(b)

Paragraph 3.08(1)(c)

Paragraph 3.08(2)(b)

Paragraph 3.08(2)(c)

Paragraph 3.08(2)(d)

Subsection 3.08(3)

Section 3.10

Paragraph 3.11(a)

Section 3.14

Paragraph 3.14(d)

Paragraph 3.14(e)

Subsection 3.19(1)

Subsection 3.20(1)

Subsection 3.20(2)

Subsection 3.20(3)

Part 5, Chapter 3

Subsection 3.22(1)

Subsection 3.22(4)

Section 3.23

Paragraph 3.24(a)

Paragraph 3.24(b)

Paragraph 3.25(2)(a)

Paragraph 3.25(2)(b)

Subsection 3.25(3)(a)

Subsection 3.25(3)(b)

Section 6.04

Subsection 6.05(1)

Subsection 8.03(1)

Chapter 10

am.; F2016L00508; F2016L01965, ad.; F2018L00499

ad.; F2016L01965

am.; F2016L01965

ad.; F2018L00499

ad.; F2018L00499

ad.; F2018L00499

ad.; F2018L00499

ad.; F2018L00499

ad.; F2018L00499

rs.; F2016L01965

am.; F2018L00499

rs.; F2018L00499

am.; F2018L00499

rs.; F2016L01965, ad.; F2018L00499

ad.; F2018L00499

rs.; F2016L01965; rs.; F2018L00499

rs.; F2016L01965

am.; F2016L01965

rs.; F2016L01965

ad.; F2018L00499

ad.; F2018L00499

rs.; F2016L00508

rs.; F2016L01965

ad.; F2016L01965

ad.; F2016L01965

ad.; F2016L01965

rs.; F2018L00499

ad.; F2018L00499

rs.; F2018L00499

am.; F2018L00499

am.; F2018L00499

am.; F2018L00499

am.; F2018L00499

am.; F2018L00499

am.; F2018L00499

am.; F2018L00499

am.; F2018L00499; ed C3

am.; F2016L00508

ad.; F2016L00508

 

EDITORIAL CHANGES

 

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

 

If the compilation includes editorial changes, the endnote will include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

 

The editorial change amendments can be given effect as intended and incorporated into the compiled law and the abbreviation “ed” will be added to the details of the amendment in the Table of Amendments.

 

In preparing this compilation for registration, the following kinds of editorial change(s) were made under the Legislation Act 2003.

Section 6.05(1)

Kind of editorial change

Give effect to the misdescribed amendment as intended

Details of editorial change

Schedule 1 item 21 of the Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2018 provides as follows:

 

21  Section 6.04 and subsection 6.05(2)

 

Omit “2005”, substitute “2017”.

 

“2005” does not appear in subsection 6.05(2).

 

The compilation was editorially changed by renumbering the subsection 6.05(2) as inserted by Schedule 1 item 21 as subsection 6.05(1).