Commonwealth of Australia Explanatory Memoranda

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BUSINESS SERVICES WAGE ASSESSMENT TOOL PAYMENT SCHEME BILL 2014

                           2013-2014




   THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                            SENATE




BUSINESS SERVICES WAGE ASSESSMENT TOOL PAYMENT SCHEME
                        BILL 2014




      ADDENDUM TO THE EXPLANATORY MEMORANDUM




                 (Circulated by the authority of the
     Minister for Social Services, the Hon Kevin Andrews MP)
    BUSINESS SERVICES WAGE ASSESSMENT TOOL PAYMENT SCHEME
                            BILL 2014


This addendum adds information to the explanatory memorandum, as requested by
the Senate Standing Committee for the Scrutiny of Bills in its Tenth Report of 2014,
dated 27 August 2014 - pages 410 to 414 of the report refer.

Business Services Wage Assessment Tool Payment Scheme Bill 2014

Part 4 - Nominees
Clause 56 - Rules may prescribe requirements etc. (page 36)

After the paragraph on page 36 that reads -

      Clause 56 provides that rules may be made to set out requirements with
      which the Secretary must comply relating to nominee appointments,
      cancellations or suspensions, and matters to which the Secretary must have
      regard in appointing nominees, or cancelling or suspending appointments of
      nominees.

Insert the following paragraphs -

      The primary legislation goes to some lengths to outline the circumstances in
      which a nominee may be appointed, or have their appointment cancelled or
      suspended. Clauses 51 to 55 of Part 3 set out requirements with which the
      Secretary must comply in making such an appointment, or cancelling or
      suspending the appointment - for example, see clause 51 above about the
      appointment of nominees.

      If enacted, these provisions in the primary legislation will be supplemented by
      rules, to be made as disallowable legislative instruments.

      The BSWAT payment scheme is a new scheme with applicants who are
      people with intellectual impairment. The nominee provisions in the legislation
      are based on those in the social security law and the National Disability
      Insurance Scheme, with supported decision-making as a primary focus.
      While the primary legislation may well cover all potential circumstances
      relevant to the appointment, suspension and cancellation of nominees, there
      may be other circumstances not addressed sufficiently by sections 51 to 55
      that only come to light as the scheme commences operation. Therefore,
      the capacity to set out additional requirements through the rules, if needed,
      allows sufficient responsiveness as the scheme is implemented - so the rules
      provide an additional safeguard.




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      Similarly, the primary legislation allows the Secretary to have regard to certain
      criteria in appointing, suspending or cancelling nominees - for example,
      the ability to suspend or cancel the appointment of a nominee in cases of
      physical, mental or financial harm. In appointing the nominee, the Secretary
      must consider whether the proposed nominee is able to comply with the
      requirements of section 46. The capacity to add requirements to criteria the
      Secretary must consider in appointing, suspending or cancelling nominees
      provides an additional safeguard as the scheme is implemented.

Part 5 - Administration
Clause 73 - Offence (page 41)

After the paragraphs on page 41 that read -

      Clause 73 makes it an offence, with a penalty of 30 penalty units, if the
      person refuses or fails to comply with a notice under clause 69, 70 or 71
      without reasonable excuse. A penalty unit is prescribed for the purposes of
      the Crimes Act 1914. That Act also provides that, if a body corporate is
      convicted of an offence, a fine of up to five times the penalty stated can be
      imposed.

      The burden of providing whether a person has a reasonable excuse is on the
      defendant, by virtue of subsection 13.3(3) of the Criminal Code. This
      provision i[n] the Criminal Code provides that a defendant who wishes to rely
      on any exception, exemption, excuse, qualification or justification provided by
      the law creating an offence bears an evidential burden in relation to that
      matter.

Insert the following paragraphs -

      The inclusion of the 'reasonable excuse' defence means that a defendant who
      denies criminal responsibility may adduce or point to evidence that he or she
      had a reasonable excuse for refusing or failing to comply with a notice or a
      requirement under clause 73.

      In the context of the BSWAT payment scheme, it is not possible to anticipate
      the full range of circumstances in which a person - particularly an individual -
      might refuse or fail to comply with the requirements of a notice issued under
      section 73. As the existence of a reasonable excuse would be peculiarly
      within the knowledge of the person, it is appropriate to include some flexibility
      in the range of excuses in respect of which a defence could point to or adduce
      evidence.




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