An Act to provide for a paid parental leave scheme, and for related purposes
Chapter 1—Introduction
Part 1‑1—Introduction
Division 1—Preliminary
1 Short title
This Act may be cited as the Paid Parental Leave Act 2010.
2 Commencement
This Act commences on 1 October 2010.
3 Act binds Crown
(1) This Act binds the Crown in each of its capacities.
(2) However, this Act does not make the Crown liable to be prosecuted for an offence.
3AA Norfolk Island
This Act extends to Norfolk Island.
Division 1A—Objects of this Act
3A Objects of this Act
(1) This Act establishes a paid parental leave scheme for the payment of parental leave pay and paid parental leave superannuation contributions.
(2) The objects of the paid parental leave scheme are to:
(a) signal that taking time out of the paid workforce to care for a child is part of the usual course of life and work for both parents; and
(b) promote equality between men and women and balance between work and family life; and
(c) provide financial support to parents caring for children, in order to:
(i) allow those parents to take time off work to care for the child after the child’s birth or adoption; and
(ii) enhance the health and development of birth mothers and children; and
(iii) encourage women to continue to participate in the workforce; and
(iv) provide those parents with flexibility to balance work and family life; and
(v) increase the time that fathers and partners take off work around the time of birth or adoption; and
(vi) create further opportunities for fathers and partners to bond with their child; and
(vii) allow fathers and partners to take a greater share of caring responsibilities and to support mothers and partners from the beginning; and
(viii) reduce the long‑term financial impact of taking time off work to care for the child by adding to the superannuation balances of those parents.
(3) The financial support provided by this Act is intended to complement and supplement existing entitlements to paid or unpaid leave in connection with the birth or adoption of a child.
Division 2—Guide to this Act
4 Guide to this Act
Overview
This Act provides for the payment of parental leave pay following the birth of a child or, for adoption, the placement of a child.
Parental leave pay is payable to a person for a child for a flexible PPL day for the child. The number of flexible PPL days for the child for which parental leave pay can be paid is limited.
Parental leave pay is paid in instalments at the daily national minimum wage amount for a day that is a flexible PPL day for the child and for which parental leave pay is payable to the person.
Parental leave pay is paid by either the person’s employer (if it is for at least 40 consecutive flexible PPL days for a child that are week days) or the Secretary.
Chapter 2—When parental leave pay is payable to a person
Chapter 2 sets out when parental leave pay is payable to a person. The key provisions for the Chapter are found in Part 2‑1.
A person can only be paid parental leave pay if the Secretary makes a determination that parental leave pay is payable to the person. Part 2‑2 has the rules about when the Secretary can make that determination.
The Secretary cannot make that determination if the person is not eligible for parental leave pay. Part 2‑3 has the rules about eligibility.
The Secretary also cannot make that determination if the person has not made a claim for parental leave pay. Part 2‑4 has the rules about claims.
There are 2 types of claims: PPL claims and special PPL claims. These claims relate to each other, although PPL claims are the main type of claim. PPL claims will often be the only claims that are made.
Chapter 3—Payment of parental leave pay
Chapter 3 sets out how parental leave pay is paid to a person.
Part 3‑1 is about instalments of parental leave pay. It deals with when instalments must be paid, whether the person’s employer or the Secretary must pay them and the amount of the instalments.
Part 3‑2 sets out when a person’s employer must pay instalments to the person. An employer is required to pay an instalment to a person in relation to a child if:
(a) an employer determination has come into force for the employer and the person; and
(b) the instalment is payable in relation to a flexible PPL day for the child that falls within the person’s continuous flexible period for the child (which consists of at least 40 consecutive flexible PPL days for the child that are week days); and
(c) the employer has been paid enough by the Secretary to fund the instalment.
Part 3‑3 sets out when the Secretary must pay instalments directly to the person. For instance, the Secretary is required to do that if an employer determination is never made for the person (e.g. the person is a contractor and so does not have an employer). There are some other circumstances in which the Secretary is also required to pay instalments directly to the person (such as when an employer determination is being reviewed or has been revoked).
Part 3‑4 has general rules about the payment of instalments (such as what happens when an instalment cannot be paid on the day specified in this Act).
Part 3‑5 is about employer determinations. If an employer determination is in force for an employer and a person, the employer must pay instalments to the person. The Secretary must be satisfied that certain conditions have been met before the Secretary can make an employer determination.
Chapter 3A—PPL superannuation contributions
A PPL superannuation contribution is payable for a person for an income year if one or more PPL funding amounts or instalments relating to the person are paid by the Secretary in the income year.
The amount of a PPL superannuation contribution is calculated on the basis of the SG charge percentage for the income year and is generally paid by the Commissioner of Taxation in the subsequent income year to a complying superannuation fund for the person.
The Commissioner of Taxation has the general administration of Chapter 3A.
Chapter 4—Compliance and enforcement
Chapter 4 deals with compliance and enforcement.
Part 4‑1 allows the Secretary to gather information for the purposes of checking compliance with this Act. It also deals with the confidentiality of personal and protected information.
Part 4‑2 deals with other compliance matters. It allows the Secretary to refer matters to the Fair Work Ombudsman for investigation if the Secretary has reason to believe that an employer has not complied with certain obligations under this Act. It also deals with civil penalty provisions, compliance notices and infringement notices.
Part 4‑3 provides for debts in relation to the paid parental leave scheme, and for the recovery of debts owing to the Commonwealth.
Chapter 5—Administrative review of decisions
Chapter 5 is about administrative review of decisions made under this Act.
Part 5‑1 allows the Secretary, on the Secretary’s own initiative, to conduct an internal review of decisions made under this Act. It also allows a person whose interests are affected by certain types of decisions to seek internal review of those decisions, and an employer to seek internal review of certain types of decisions that affect employers.
Part 5‑2 allows a person to apply to the Administrative Appeals Tribunal (AAT) for review of certain decisions made under this Act. This review is called AAT first review.
Part 5‑3 allows a person to apply to the AAT for review of certain decisions made by the AAT on AAT first review. This review is called AAT second review.
Part 5‑4 has miscellaneous provisions relating to reviews of decisions made under this Act.
Chapter 6—Miscellaneous
Chapter 6 has miscellaneous provisions.
Part 6‑1 has rules that modify this Act so that it applies correctly in 3 limited kinds of cases—adoption, claims made in exceptional circumstances etc. and Commonwealth employment.
Part 6‑2 is about payment nominees (who are people who can receive payments of instalments of parental leave pay on behalf of other people for the purposes of this Act) and correspondence nominees (who are people who can receive notices on behalf of other people for the purposes of this Act).
Part 6‑3 deals with other miscellaneous matters, such as the PPL rules, delegations and regulations.
Part 1‑2—Definitions
Division 1—Guide to this Part
5 Guide to this Part
This Part is about the terms that are defined in this Act.
Division 2 has the Dictionary (see section 6). The Dictionary is a list of every term that is defined in this Act. A term will either be defined in the Dictionary itself, or in another provision of this Act. If another provision defines the term, the Dictionary will have a signpost to that definition.
Division 2—The Dictionary
6 The Dictionary
In this Act:
AAT means the Administrative Appeals Tribunal.
AAT Act means the Administrative Appeals Tribunal Act 1975.
AAT first review:
(a) in relation to an AAT reviewable claimant decision: see subsection 216(1); and
(b) in relation to an AAT reviewable employer decision: see subsection 224(1).
AAT reviewable claimant decision: see subsection 215(3).
AAT reviewable employer decision: see subsection 223(2).
AAT second review: see subsection 237(1).
ABN (short for Australian Business Number) has the same meaning as in the A New Tax System (Australian Business Number) Act 1999.
acceptance notice: see section 103.
ADI (short for authorised deposit‑taking institution) means a body corporate that is an ADI for the purposes of the Banking Act 1959.
adjusted taxable income: see section 38.
Australia, when used in a geographical sense, includes Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
Note: In Division 7A of Part 4‑3 (about departure prohibition orders), Australia has an extended meaning.
Australian‑based employee means an employee:
(a) whose primary place of work is in Australia; or
(b) who is employed by an Australian government employer.
Australian government employer means:
(a) the Commonwealth; or
(b) a State; or
(c) a Territory; or
(d) a body corporate established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
(e) a body corporate:
(i) incorporated under a law of the Commonwealth, a State or a Territory; and
(ii) in which the Commonwealth, a State or a Territory, has a controlling interest.
Australian residency test: see sections 45 and 46.
Australian resident has the same meaning as in the Social Security Act.
Australian travel document has the same meaning as in the Australian Passports Act 2005.
authorised party, in relation to the adoption of a child, means a person or agency that, under the law of the State, Territory or foreign country whose courts have jurisdiction in relation to the adoption, is authorised to conduct negotiations or arrangements for the adoption of children.
authorised review officer means an officer authorised under section 271 to be an authorised review officer for the purposes of this Act.
bank account includes an account held with an ADI.
bank account information: see subsection 104(2).
base contribution: see subsection 115C(2).
base interest rate for a day has the same meaning as in section 8AAD of the Taxation Administration Act 1953.
birth verification form: see subsection 18(4).
born prematurely: a child is born prematurely if, at the time of the child’s delivery, the child’s period of gestation is less than 37 weeks.
business includes any profession, trade, employment, vocation or calling, but does not include occupation as an employee.
caring: see section 47.
Chief Executive Centrelink has the same meaning as in the Human Services (Centrelink) Act 1997.
Chief Executive Medicare has the same meaning as in the Human Services (Medicare) Act 1973.
civil penalty provision has the same meaning as in the Regulatory Powers Act.
claim means a PPL claim or special PPL claim for parental leave pay for a child.
claimant means a person who is a PPL claimant or special PPL claimant.
claimant decision: see section 206.
claimant’s work cessation day: see paragraph 33(2A)(c).
Commissioner means the Commissioner of Taxation.
Commonwealth agency means any of the following:
(a) a non‑corporate Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013;
(b) any other unincorporated body established for a public purpose by or under a law of the Commonwealth.
compliance notice: see subsection 157(3).
complying superannuation fund has the same meaning as in the Income Tax Assessment Act 1997.
conditional eligibility determination means a determination of a kind mentioned in paragraph 13(6)(b) or 14(4)(b).
constitutionally protected fund has the same meaning as in the Income Tax Assessment Act 1997.
continuous flexible period: see section 71A.
controls an entity: see subsection 35(4).
correspondence nominee means a person who is appointed as a correspondence nominee under section 281.
COVID‑19 affected claimant: a person is a COVID‑19 affected claimant in relation to a claim for parental leave pay for a child if:
(a) either:
(i) the child is or was born between 22 March 2020 and 31 March 2021; or
(ii) if the claim is made before the child’s birth—the child’s expected date of birth is during that period; and
(b) the person must satisfy the work test to be eligible for parental leave pay; and
(c) the Secretary is satisfied that any of the following circumstances apply in relation to the person:
(i) the person became unemployed as a result of the adverse effects of the coronavirus known as COVID‑19;
(ii) the person’s working hours were reduced (including to zero) as a result of the adverse effects of the coronavirus known as COVID‑19;
(iii) a business that the person, or an entity that is controlled by the person, carries on for profit and for which the person performs work was suspended, or suffered a reduction in turnover, as a result of the adverse effects of the coronavirus known as COVID‑19; and
(d) as a result of that circumstance applying in relation to the person, the person would not satisfy the work test if the person’s work test period were the period under section 33.
COVID‑19 Australian Government payment: see subsection 34(6).
COVID‑19 Australian Government payment period: see subsection 34(5).
credit to an RSA that is a policy (within the meaning of the Life Insurance Act 1995) means pay as a premium in relation to the policy.
daily national minimum wage amount: see subsection 65(2).
debt payment arrangement: see section 190.
decision has the same meaning as in the AAT Act.
defence force member means a member of the Australian Defence Force.
departure authorisation certificate means a certificate under Subdivision D of Division 7A of Part 4‑3.
departure prohibition order means an order under Subdivision A of Division 7A of Part 4‑3 (including such an order varied under Subdivision C of that Division).
effective claim means a claim that is made in accordance with Part 2‑4.
eligible for parental leave pay: see section 31AA.
employee has its ordinary meaning and:
(a) includes a reference to a person who is usually such an employee; and
(b) does not include a person on a vocational placement.
employer has its ordinary meaning and includes a reference to a person who is usually such an employer.
employer determination: see section 101.
employer determination decision: see section 207.
employer funding amount decision: see section 208.
employer notice means the later of any one or more of the following notices given to an employer:
(a) a notice under section 102;
(b) a notice under section 113;
(c) a notice under section 114.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
entity means any of the following:
(a) a natural person;
(b) a body corporate;
(c) a body politic;
(d) a partnership;
(e) any other unincorporated association or body of persons;
(f) a trust.
exceptional circumstances: a claim is made in exceptional circumstances if it is made by a person who satisfies:
(a) paragraph 54(1)(g) (which deals with PPL claims); or
(b) paragraph 54(2)(b) (which deals with special PPL claims).
Fair Work Act means the Fair Work Act 2009.
Family Assistance Act means the A New Tax System (Family Assistance) Act 1999.
family assistance law has the same meaning as in the A New Tax System (Family Assistance) (Administration) Act 1999.
family PPL income limit: see subsection 41(2).
farm household allowance has the same meaning as in the Farm Household Support Act 2014.
Federal Court means the Federal Court of Australia.
financial institution means:
(a) an ADI; or
(b) the Reserve Bank of Australia; or
(c) a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.
flexible PPL day: see subsection 11D(1).
Foreign Affairs Minister means the Minister administering the Australian Passports Act 2005.
garnishee, in relation to a garnishee notice: see section 184.
garnishee notice: see section 184.
general interest charge means the charge worked out under Part IIA of the Taxation Administration Act 1953.
has not previously satisfied the work and income tests: a person has not previously satisfied the work and income tests in relation to a child if both of the following apply:
(a) no payability determination is in force that parental leave pay is payable to the person in relation to the child;
(b) no conditional eligibility determination is in force that relates to the person and child.
holder, of a visa, has the same meaning as in the Migration Act 1958.
Home Affairs Minister means the Minister administering the Australian Security Intelligence Organisation Act 1979.
Human Services Department means Services Australia.
Human Services Secretary means the Chief Executive Officer of Services Australia.
income support payment has the same meaning as in section 23 of the Social Security Act.
income test: see section 37.
income year has the same meaning as in the Income Tax Assessment Act 1997.
indexation day: see subsection 42(1).
indexation factor: see subsection 43(1).
indexed amount: see subsection 42(3).
individual PPL income limit: see subsection 41(1).
initial eligibility determination: see section 26A.
insolvent: a person is insolvent if:
(a) for a natural person—the person is an insolvent under administration; and
(b) for a person that is or was a body corporate:
(i) the person is a Chapter 5 body corporate (within the meaning of the Corporations Act 2001) or an entity with a similar status under a law of a foreign country; or
(ii) a provisional liquidator has been appointed in relation to the person under section 472 of the Corporations Act 2001; or
(iii) a person with a similar status to a provisional liquidator has been appointed in relation to the person under a law of a foreign country.
instalment means an instalment of parental leave pay.
instalment period for a person: see section 64.
interest charge rate: see section 177.
jobkeeper payment: see subsection 34(4).
jobkeeper payment period: see subsection 34(3).
law enforcement officer means:
(a) a member of a police force or police service of the Commonwealth, a State or a Territory; or
(b) a person appointed to a position for the purposes of being trained as a member of a police force or police service of the Commonwealth, a State or a Territory; or
(c) a person who has the powers and duties of a member of a police force or police service of the Commonwealth, a State or a Territory;
and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer.
legal personal representative of a person who has died means an executor or administrator of the person’s estate.
minimum amount for a PPL funding amount: see subsection 76(2).
national minimum wage order has the same meaning as in the Fair Work Act.
nominal interest rate amount: see subsection 115C(5).
nominee means a correspondence nominee or a payment nominee.
officer means a person performing duties, or exercising powers or functions, under or in relation to this Act.
original debt: see section 184.
original debtor: see section 184.
paid enough to fund an instalment: see section 73.
paid work: see section 35.
parent:
(a) when used in relation to a child who has been adopted—means an adoptive parent of the child; and
(b) when used in relation to a child born because of the carrying out of an artificial conception procedure—means a person who is a parent of the child under section 60H of the Family Law Act 1975; and
(c) when used in relation to a child born because of a surrogacy arrangement—includes a person who is a parent of the child under section 60HB of the Family Law Act 1975.
parental leave pay means payments of parental leave pay under this Act.
partner has the same meaning as in the Social Security Act.
payability determination means a determination made under section 13 or 14 that parental leave pay is, or is not, payable to a person for a child.
pay cycle information: see subsection 104(3).
payday for an instalment: see section 64.
payment date means:
(a) for a PPL superannuation contribution—the date worked out in accordance with the PPL rules made for the purposes of section 115H; or
(b) for an underpaid amount of a PPL superannuation contribution—the date worked out in accordance with the PPL rules made for the purposes of section 115M.
payment nominee means a person who is appointed as a payment nominee under section 280.
payroll cut‑off for an instalment that is payable to a person means the last day on which the person’s employer can reasonably make changes to the instalment to be paid to, or in relation to, the person on the person’s payday for the instalment.
permanent visa has the same meaning as in the Migration Act 1958.
permissible break: see subsection 36(1).
PPL is short for paid parental leave.
PPL agency means:
(a) the Department; or
(b) the Human Services Department.
PPL agency representative means:
(a) for the Department—the Secretary; or
(b) for the Human Services Department—the Chief Executive Centrelink or the Chief Executive Medicare.
PPL claim: see subsection 53(2).
PPL claimant means a person who has made an effective PPL claim for parental leave pay for a child.
PPL funding amount: see subsection 75(1).
PPL requirement: see subsection 287(6).
PPL rules (short for Paid Parental Leave Rules) means the rules made by the Minister under section 298.
PPL superannuation contribution (short for Paid Parental Leave superannuation contribution) means a PPL superannuation contribution payable under section 115B.
principal in relation to a nominee, means the person in relation to whom the nominee was appointed.
protected information means:
(aa) information about a person that is or was held in the records of the Department; or
(ab) information about a person that is or was held in the records of the Human Services Department within the meaning of this Act as in force at any time; or
(a) information about a person that was held in the records of the Commonwealth Services Delivery Agency (within the meaning of the Commonwealth Services Delivery Agency Act 1997 as in force before 1 July 2011); or
(b) information about a person obtained by an officer under this Act that was held in the records of Medicare Australia (within the meaning of the Medicare Australia Act 1973 as in force before 1 July 2011); or
(c) information to the effect that there is no information about a person held in the records of a PPL agency.
provider of an RSA has the same meaning as in the Retirement Savings Accounts Act 1997.
provisional indexed amount: see section 42.
qualifying period: see section 32.
qualifying work: see section 34.
reference income year: see section 39.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
relevant family PPL income limit: see subsection 40(2).
relevant individual PPL income limit: see subsection 40(1).
resides in Australia has the same meaning as in the Social Security Act.
RSA has the same meaning as in the Retirement Savings Accounts Act 1997.
saved amount: see subsection 97(2).
Secretary means the Secretary of the Department.
security notice means a notice under section 278C.
SG charge percentage: see subsection 115C(4).
Social Security Act means the Social Security Act 1991.
social security benefit has the same meaning as in the Social Security Act.
social security law has the same meaning as in the Social Security Act.
social security pension has the same meaning as in the Social Security Act.
special category visa has the same meaning as in the Migration Act 1958.
special PPL claim: see subsection 53(3).
special PPL claimant means a person who has made an effective special PPL claim for parental leave pay for a child for which another person has made a PPL claim.
stillborn, in relation to a child, means a child:
(a) who weighs at least 400 grams at delivery or whose period of gestation was at least 20 weeks; and
(b) who has not breathed since delivery; and
(c) whose heart has not beaten since delivery.
subject to review: an employer determination is subject to review until:
(a) any applicable time limits for applying for a review (however described) or lodging an appeal (however described) of or in relation to the determination have expired; and
(b) if there is such a review or appeal of or in relation to the determination—the review or appeal (and any later reviews or appeals) have been finally disposed of.
Superannuation Holding Accounts Special Account means the Superannuation Holding Accounts Special Account continued in existence by section 8 of the Small Superannuation Accounts Act 1995.
superannuation provider means:
(a) the trustee of a complying superannuation fund; or
(b) the provider of an RSA; or
(c) the trustee of a constitutionally protected fund.
taxation officer means a person who is a taxation officer within the meaning of subsection 355‑30(2) in Schedule 1 to the Taxation Administration Act 1953.
tax file number has the same meaning as in section 202A of the Income Tax Assessment Act 1936.
tax file number statement: see subsection 59(1).
this Act includes the PPL rules and the regulations.
transfer day: see subsections 84(3), (4) and (5).
trustee of a superannuation fund, or constitutionally protected fund, means:
(a) if there is a trustee (within the ordinary meaning of that expression) of the fund—the trustee; or
(b) otherwise—the person who manages the fund.
underpaid amount of a PPL superannuation contribution has the meaning given by subsection 115K(2).
verifies a child’s birth: see section 18.
veteran payment means a veteran payment made under an instrument made under section 45SB of the Veterans’ Entitlements Act 1986.
vocational placement means a placement that is:
(a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and
(b) undertaken as a requirement of an education or training course; and
(c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.
week day means a day that is not a Saturday or a Sunday.
working day means a day that is not a Saturday, a Sunday or a public holiday.
work test: see Division 3 of Part 2‑3.
work test period: see sections 33 and 33A.
Chapter 2—When parental leave pay is payable to a person
Part 2‑1—Key provisions
Division 1—Guide to this Part
7 Guide to this Part
This Part has the key provisions for this Chapter (which deals with when parental leave pay is payable to a person).
A person can only be paid parental leave pay if the Secretary makes a determination that parental leave pay is payable to the person. Part 2‑2 has the rules about when the Secretary can make that determination.
The Secretary cannot make that determination if the person has not made a claim for parental leave pay. Part 2‑4 has the rules about claims. There are 2 types of claims: PPL claims and special PPL claims. These claims relate to each other, although PPL claims are the main type of claim. PPL claims will often be the only claims that are made.
If the Secretary makes a determination that parental leave pay is payable to a person for one or more flexible PPL days for a child of the person, parental leave pay is payable for the particular days specified in the determination. The number of flexible PPL days for the child for which parental leave pay can be paid is limited.
The Secretary may only make a determination that parental leave pay is payable to certain PPL claimants and special PPL claimants for one or more flexible PPL days if permission has been given to claim those days.
The person’s employer or the Secretary will pay instalments of parental leave pay that are payable to a person (see Chapter 3 for the rules about the payment of parental leave pay).
Division 3—When parental leave pay for a flexible PPL day for a child is payable to a person
11A A determination must be made for parental leave pay for a flexible PPL day for a child to be payable to a person
Parental leave pay is payable to a person for a flexible PPL day for a child if a determination of the Secretary that parental leave pay is payable to the person for that day is in force under section 13 or 14.
Note: See Division 2 of Part 2‑2 for the rules about when the Secretary can make such a determination.
11B For a determination to be made, the person must be eligible
The Secretary cannot make a determination under section 13 or 14 that parental leave pay is payable to a person for a flexible PPL day for a child unless the person was or will be eligible for parental leave pay on that day.
Note: See Part 2‑3 for the rules about when a person is eligible for parental leave pay on a flexible PPL day for a child.
11C For a determination to be made, the person must claim
The Secretary cannot make a determination under section 13 or 14 that parental leave pay is payable to a person for a flexible PPL day for a child unless the person has made:
(a) an effective PPL claim for parental leave pay for that day (in which case the person is a PPL claimant); or
(b) an effective special PPL claim for parental leave pay for that day (in which case the person is a special PPL claimant).
Note: See Part 2‑4 for the rules about how to make an effective claim.
11D Flexible PPL day
A day is a flexible PPL day for a child if the day occurs in the period that:
(a) starts on the day the child is born; and
(b) ends on the day before the child’s second birthday.
Part 2‑2—Determinations about whether parental leave pay is payable to a person
Division 1—Guide to this Part
12 Guide to this Part
This Part is about the Secretary making determinations about whether parental leave pay is payable to a person. These determinations are payability determinations. A person cannot be paid parental leave pay unless there is a payability determination that parental leave pay is payable to the person.
Division 2 has the rules that apply to the Secretary when making a payability determination in relation to whether parental leave pay is payable to a person for a flexible PPL day for a child. Different rules apply depending on whether the claim is a PPL claim or a special PPL claim. The Secretary may only make a determination that parental leave pay is payable to certain PPL claimants and special PPL claimants for one or more flexible PPL days if permission has been given to claim those days.
Division 3 has restrictions that apply in particular circumstances to prevent the Secretary from making a payability determination that parental leave pay is payable to a person (for example, where the child’s birth has not been verified or where the limit on the number of flexible PPL days for which parental leave pay is payable to more than one person has been exceeded).
Division 4 has general rules that apply to payability determinations (for example, if the Secretary makes a determination, the Secretary must give a notice of it to the claimant).
Division 5 deals with initial eligibility determinations. These determinations can be made by the Secretary before the Secretary makes a payability determination. The Secretary can make an initial eligibility determination if the Secretary is satisfied that the person satisfies, or will satisfy, particular eligibility criteria. If the Secretary makes a determination, the Secretary must give a notice of it to the claimant.
Division 2—Determination about whether parental leave pay for a flexible PPL day is payable to a person
13 Determination on a PPL claim
When a claim is to be determined under this section
(1) If:
(a) a PPL claimant has made an effective PPL claim for parental leave pay for a child; and
(b) one or more flexible PPL days for the child (the claimed days) have been specified in the claim;
the Secretary must make a determination on the PPL claim under this section.
When parental leave pay is payable to the PPL claimant for one or more claimed days
(2) The Secretary must determine that parental leave pay is payable to the PPL claimant for one or more of the claimed days if, when making the determination, the Secretary is satisfied that:
(a) the PPL claimant was or will be eligible for parental leave pay on those days; and
(b) if:
(i) the PPL claimant is a person covered by subsection (3); and
(ii) the child’s birth mother has not previously satisfied the work test in relation to the child;
the child’s birth mother satisfies the work test on the day the determination is made; and
(c) if:
(i) the PPL claimant is the partner of an adoptive parent of the child; and
(ii) an adoptive parent of the child has not previously satisfied the work test in relation to the child;
the person who gave the PPL claimant the permission referred to in subparagraph (e)(i) satisfies the work test on the day the determination is made; and
(d) if the PPL claimant is a person covered by subsection (3) and the circumstances prescribed by the rules for the purposes of this paragraph do not apply to the PPL claimant:
(i) a permission has been given to the PPL claimant under paragraph 15(1)(a) in relation to the child; and
(ii) the permission has not been revoked; and
(iii) if the determination were made, the number of flexible PPL days for the child for which parental leave pay would be payable to the person would not exceed the number of flexible PPL days specified in the permission; and
(e) if the PPL claimant is a person covered by subsection (4) and the circumstances prescribed by the rules for the purposes of this paragraph do not apply to the PPL claimant:
(i) a permission has been given to the PPL claimant under paragraph 15(1)(b) or (c) in relation to the child; and
(ii) the permission has not been revoked; and
(iii) if the determination were made, the number of flexible PPL days for the child for which parental leave pay would be payable to the person would not exceed the number of flexible PPL days specified in the permission.
Note: The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.
(3) The following persons are covered by this subsection:
(a) a person who:
(i) is a parent (other than an adoptive parent) of the child; and
(ii) is not the child’s birth mother;
(b) the partner of the child’s birth mother;
(c) the partner of a person covered by paragraph (a).
(4) The following persons are covered by this subsection:
(a) an adoptive parent of the child, if a payability determination under this section that parental leave pay for the child is payable is in force in relation to another adoptive parent of the child;
(b) the partner of an adoptive parent of the child.
(5) The Secretary must specify in a determination made under subsection (2) the claimed days for which parental leave pay is payable to the PPL claimant.
When parental leave pay is not payable to the PPL claimant for one or more claimed days
(6) If the Secretary is not satisfied of the matters in subsection (2) for one or more of the claimed days, the Secretary must:
(a) determine that parental leave pay is not payable to the PPL claimant for those days; and
(b) if:
(i) the PPL claimant has not previously satisfied the work and income tests in relation to the child; and
(ii) the Secretary is satisfied that the PPL claimant satisfies the work test and income test on the day the determination is made;
determine that the PPL claimant is conditionally eligible for parental leave pay for other flexible PPL days for the child.
(7) The Secretary must specify in the determination made under subsection (6) the claimed days for which parental leave pay is not payable to the PPL claimant.
14 Determination on a special PPL claim
When a claim is to be determined under this section
(1) If:
(a) a special PPL claimant has made an effective special PPL claim for parental leave pay for a child; and
(b) one or more flexible PPL days for the child (the claimed days) have been specified in the claim;
the Secretary must make a determination on the special PPL claim under this section.
When parental leave pay is payable to special PPL claimant for the claimed days
(2) The Secretary must determine that parental leave pay is payable to the special PPL claimant for one or more of the claimed days if, when making the determination, the Secretary is satisfied that:
(a) a payability determination under section 13 that parental leave pay for the child is payable to a PPL claimant is in force; and
(b) the special PPL claimant was or will be eligible for parental leave pay on those days; and
(c) if the special PPL claimant is the partner of a person who satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a PPL claim can be made—a permission has been given to the special PPL claimant under subsection 15(2) in relation to the child; and
(d) the permission has not been revoked; and
(e) if the determination were made, the number of flexible PPL days for the child for which parental leave pay would be payable to the person would not exceed the number of flexible PPL days specified in the permission.
Note: The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.
(3) The Secretary must specify in the determination made under subsection (2) the claimed days for which parental leave pay is payable to the special PPL claimant.
When parental leave pay is not payable to the special PPL claimant for the claimed days
(4) If the Secretary is not satisfied of the matters in subsection (2) for one or more of the claimed days, the Secretary must:
(a) determine that parental leave pay is not payable to the special PPL claimant for those days; and
(b) if:
(i) the special PPL claimant is the partner of a person who satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a PPL claim can be made; and
(ii) the special PPL claimant has not previously satisfied the work and income tests in relation to the child; and
(iii) the Secretary is satisfied that the special PPL claimant satisfies the work test and income test on the day the determination is made;
determine that the special PPL claimant is conditionally eligible for parental leave pay for other flexible PPL days for the child.
(5) The Secretary must specify in the determination made under subsection (4) the claimed days for which parental leave pay is not payable to the special PPL claimant.
15 Permission to claim flexible PPL days for a child
Certain claimants may give permission
(1) Permission for PPL claimants to claim parental leave pay for one or more flexible PPL days for a child may be given by the following persons:
(a) the child’s birth mother;
(b) a person:
(i) who is an adoptive parent of the child; and
(ii) in respect of whom a payability determination under section 13 that parental leave pay for the child is payable is in force; and
(iii) who is the first adoptive parent of the child in respect of whom a payability determination under section 13 that parental leave pay for the child is payable has been made;
(c) an adoptive parent of the child who is nominated by the partner of an adoptive parent of the child to give permission to that partner.
(2) Permission for special PPL claimants to claim parental leave pay for flexible PPL days for a child may be given by a person:
(a) who satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a PPL claim can be made; and
(b) in respect of whom a payability determination under section 13 that parental leave pay for the child is payable is in force.
(3) The permission must:
(a) be given to the Secretary in the form approved by the Secretary; and
(b) specify the number of flexible PPL days for the child to whom the permission relates that may be claimed; and
(c) specify the person to whom the permission is given.
Note 1: The maximum number of flexible PPL days for a child that is payable is worked out under sections 31AB and 31ABA.
Note 2: The permission does not preclude the person giving the permission from claiming parental leave pay for some or all of the specified number of flexible PPL days for the child.
Variation and revocation of permission
(4) If a person has given a permission under subsection (1) or (2), the person may:
(a) vary the number of flexible PPL days for the child specified in the permission; or
(b) revoke the permission.
(5) The variation or revocation must be given to the Secretary in the form approved by the Secretary.
(6) If:
(a) a payability determination that parental leave pay is payable to a person for one or more flexible PPL days for a child is in force in relation to a claim; and
(b) permission was given in relation to that claim under subsection (1) or (2); and
(c) that permission is varied under paragraph (4)(a);
then:
(d) the variation of the permission does not affect the operation of the payability determination in relation to the days specified in the payability determination that, at the time the permission is varied, have already occurred; and
(e) the Secretary must vary the payability determination to remove the days specified in the payability determination that, at the time the permission is varied:
(i) have not yet occurred; and
(ii) exceed the number of days specified in the permission, as varied; and
(f) the Secretary must determine that parental leave pay is not payable to the person for the days referred to in paragraph (e).
Note: Subsections 13(5) and (7) (for PPL claims) and 14(3) and (5) (for special PPL claims) provide that determinations must specify the claimed days for which parental leave pay is payable and not payable to a claimant.
(7) If:
(a) a payability determination is in force in relation to a claim made by a person; and
(b) permission was given in relation to that claim under subsection (1) or (2); and
(c) that permission is revoked in relation to the person under paragraph (4)(b);
then:
(d) the revocation of the permission does not affect the operation of the payability determination in relation to the days specified in the payability determination that, at the time the permission is revoked, have already occurred; and
(e) the Secretary must vary the payability determination to remove the days specified in the payability determination that, at the time the permission is revoked, have not yet occurred; and
(f) the Secretary must determine that parental leave pay is not payable to the person for the days referred to in paragraph (e).
Note: Subsections 13(5) and (7) (for PPL claims) and 14(3) and (5) (for special PPL claims) provide that determinations must specify the claimed days for which parental leave pay is payable and not payable to a claimant.
Division 3—When the Secretary cannot make a determination that parental leave pay is payable
18 The child’s birth has not been verified
(1) The Secretary must not make a payability determination that parental leave pay is payable to a person for a child unless a PPL claimant has verified the child’s birth.
Verifying a child’s birth
(2) A person verifies a child’s birth if:
(a) the person gives the Secretary a completed birth verification form for the child; and
(b) if subsection (3) applies to the person, the person satisfies the requirement of that subsection.
(3) If:
(a) the person is the parent (other than an adoptive parent) of the child; and
(b) the child is not stillborn; and
(c) the person is, under a law of a State or a Territory, responsible (whether alone or jointly) for registering the birth of the child under the law;
then the person must give the Secretary information showing that:
(d) the child’s birth has been registered under the law; or
(e) the person has applied to have the birth of the child registered under the law.
(4) The Secretary may approve a form (a birth verification form) for the purposes of verifying the birth of a child.
19B Parental leave pay not payable to COVID‑19 affected claimant if child born after 31 March 2021
If a person is a COVID‑19 affected claimant in relation to a claim for parental leave pay for a child of the person, the Secretary must not make a payability determination that parental leave pay is payable to the person for the child if the child is born after 31 March 2021.
20 Multiple births
The Secretary must not make a payability determination that parental leave pay is payable to a person for a child if:
(a) the child and another child are born during the same multiple birth; and
(b) parental leave pay is or was payable to the person or another person for the other child.
21 Limit on number of flexible PPL days for which parental leave pay is payable to more than one person
(1) The Secretary must not make a payability determination that parental leave pay is payable to a person for a flexible PPL day (the relevant day) for a child if:
(a) the effect of one or more payability determinations made by the Secretary under section 13 or 14 is that parental leave pay is payable to more than one person for the same flexible PPL day for the child on a total of:
(i) if the child is born before 1 July 2025—10 flexible PPL days; or
(ii) if the child is born on or after 1 July 2025—20 flexible PPL days; and
(b) the effect of a payability determination made by the Secretary under section 13 or 14 is that parental leave pay is payable to another person for the relevant day.
(2) However, the PPL rules may prescribe circumstances in which a flexible PPL day does not count towards the total number of flexible PPL days referred to in paragraph (1)(a).
Division 4—General provisions applying to determinations about whether parental leave pay is payable
22 Assumptions when making the determination
In deciding whether to make a payability determination about parental leave pay, the Secretary may act on the assumption that the state of affairs known to the Secretary when making the determination will remain unchanged.
23 When the determination is in force
A payability determination about parental leave pay comes into force on the day it is made and continues in force unless it is:
(a) revoked under section 25 (which deals with revoking a payability determination on the claimant’s request); or
(b) set aside under Chapter 5 (which deals with review of decisions).
24 Notice of the determination
If the Secretary makes a payability determination about parental leave pay for a child, the Secretary must give the claimant a notice stating:
(a) whether parental leave pay is payable; and
(c) if parental leave pay is payable for one or more flexible PPL days for the child—those days; and
(d) if parental leave pay is not payable—whether a conditional eligibility determination has been made; and
(e) that the claimant may apply for review of the determination in the manner set out in Chapter 5.
25 Revoking the determination on request
(1) If:
(a) a payability determination is made that parental leave pay is payable to a person for a flexible PPL day for a child; and
(b) the person requests the Secretary to revoke the determination; and
(c) the request is made before the last day of the instalment period for the instalment that relates to the flexible PPL day for the child; and
(d) the request is made in a manner approved by the Secretary;
then the Secretary must revoke the determination.
(2) The revocation is taken to have come into force on the day the person requested the Secretary to revoke the determination.
Division 5—Initial eligibility determinations about parental leave pay
26A Initial eligibility determinations relating to flexible PPL days for a child
The Secretary may make a determination (the initial eligibility determination) that a person is initially eligible for parental leave pay for one or more flexible PPL days for a child if:
(a) the flexible PPL days for the child are specified in an effective PPL claim or effective special PPL claim made by the person; and
(b) if no other initial eligibility determination under this section is in force in relation to the person and child—the Secretary is satisfied that the person satisfies the work test and income test when making the determination; and
(c) the Secretary is satisfied that the person satisfies the Australian residency test when making the determination.
27 Assumptions when making the initial eligibility determination
In deciding whether to make an initial eligibility determination about parental leave pay, the Secretary may act on the assumption that the state of affairs known to the Secretary when making the determination will remain unchanged.
28 When the initial eligibility determination comes into force
An initial eligibility determination about parental leave pay comes into force on the day it is made.
29 Notice of the initial eligibility determination
If the Secretary makes an initial eligibility determination about parental leave pay, the Secretary must give a notice of the determination to the claimant.
Part 2‑3—Eligibility for parental leave pay
Division 1—Guide to this Part
30 Guide to this Part
This Part sets out when a person is eligible for parental leave pay. The Secretary cannot make a payability determination that parental leave pay is payable if the person is not eligible for it.
Division 2 sets out when a person is eligible for parental leave pay. Section 31AA sets out when a person is eligible for parental leave pay on a flexible PPL day for a child. Sections 31AB and 31ABA set out the maximum number of flexible PPL days for a child for which parental leave pay can be paid. This includes, subject to certain exceptions, the flexible PPL days that are reserved for other claimants where a claimant has a partner at the time of their first effective claim.
Division 3 has the work test. To satisfy the work test, a person must have performed enough paid work or taken enough paid leave in a particular period. A flexible PPL day for a previous child for which parental leave pay was payable to the person may be taken into account in working out whether the person satisfies the work test for a subsequent child. Any jobkeeper payment period or COVID‑19 Australian Government payment period for the person may also be taken into account. Special rules apply in the case of premature birth or complications or illness related to the pregnancy (see section 36A) or in special circumstances (see section 36AA).
Division 4 has the income test. To satisfy the income test, the person’s income for a particular income year must not be more than either the individual PPL income limit (which is $150,000 until 30 June 2021 and then indexed) or the family PPL income limit (which is $350,000 until 30 June 2024 and then indexed). If the person has a partner, their partner’s income is also counted towards the family PPL income limit.
Division 5 has the Australian residency test. To satisfy this test, the person must be an Australian resident or be in a special class of visa holder.
Division 6 sets out when a person is caring for a child.
Division 2—When a person is eligible for parental leave pay
31AA When a person is eligible for parental leave pay on a flexible PPL day for a child
(1) A person is eligible for parental leave pay on a flexible PPL day for a child if:
(a) the person is eligible for parental leave pay on the day under subsection (2), (3), (4) or (5); and
(b) the person is not ineligible for parental leave pay on the day under section 31AB.
Main eligibility rule
(2) A person is eligible for parental leave pay on a flexible PPL day for a child if:
(a) the person satisfies the Australian residency test on that day; and
(b) the person is caring for the child on that day; and
(c) on that day the person is performing no more than one hour of paid work; and
(d) if the person has not previously satisfied the work and income tests in relation to the child—the person satisfies the work test and the income test on that day; and
(e) both of the following apply:
(i) the person satisfies the Australian residency test on the day the child was born;
(ii) if the day the child was born is in a newly arrived resident’s waiting period that the person is subject to under section 31A—subsection 31A(7) or (7A) applies to the person on the day the child was born.
When child is stillborn or has died
(3) A person is eligible for parental leave pay on a flexible PPL day for a child if:
(a) the child is stillborn or has died before that day; and
(b) on that day, the person would be eligible under subsection (2) for parental leave pay on that day, if paragraphs (2)(b) and (c) were disregarded; and
(c) the person would have been caring for the child on that day had the child not been stillborn or died.
When person meets prescribed conditions—persons other than special PPL claimants in exceptional circumstances
(4) A person is eligible for parental leave pay on a flexible PPL day for a child if:
(a) the person satisfies the Australian residency test on that day; and
(b) if the person has not previously satisfied the work and income tests in relation to the child—the person satisfies the work test and the income test on that day; and
(c) both of the following apply:
(i) the person satisfies the Australian residency test on the day the child was born;
(ii) if the day the child was born is in a newly arrived resident’s waiting period that the person is subject to under section 31A—subsection 31A(7) or (7A) applies to the person on the day the child was born; and
(d) the person does not satisfy the circumstances prescribed by the PPL rules as being exceptional circumstances in which a special PPL claim can be made; and
(e) on that flexible PPL day, the person satisfies the conditions prescribed by the PPL rules for the purposes of this paragraph.
When person meets prescribed conditions—special PPL claimants in exceptional circumstances
(5) A person is eligible for parental leave pay on a flexible PPL day for a child if:
(a) the person satisfies the Australian residency test on that day; and
(b) both of the following apply:
(i) the person satisfies the Australian residency test on the day the child was born;
(ii) if the day the child was born is in a newly arrived resident’s waiting period that the person is subject to under section 31A—subsection 31A(7) or (7A) applies to the person on the day the child was born; and
(c) the person satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a special PPL claim can be made; and
(d) on that flexible PPL day, the person satisfies the conditions prescribed by the PPL rules for the purposes of this paragraph.
31AB When a person is not eligible for parental leave pay on a flexible PPL day for a child
When a person is not eligible
(1) A person (the relevant claimant) is not eligible for parental leave pay on a day that is a flexible PPL day for a child if subsection (2), (3), (4), (5), (6), (7) or (8) applies to the relevant claimant on that day.
Flexible PPL days exceed maximum amounts—total limit in relation to child
(2) This subsection applies to the relevant claimant on a flexible PPL day if:
(a) one or more determinations under section 13 or 14 that parental leave pay is payable to a person are in force in relation to the number of flexible PPL days for the child specified in subsection 31ABA(1); and
(b) neither the relevant claimant nor the relevant claimant’s partner (if any) satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a PPL claim can be made.
When flexible PPL days exceed maximum amounts—claimant limit when partnered (reserved period)
(3) This subsection applies to the relevant claimant on a flexible PPL day if:
(a) the relevant claimant has a partner at the time the relevant claimant makes their first effective claim in relation to the child; and
(b) one or more determinations under section 13 that parental leave pay is payable to the relevant claimant are in force in relation to the number of flexible PPL days for the child specified in subsection 31ABA(2); and
(c) neither the relevant claimant nor the relevant claimant’s partner (if any) satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a PPL claim can be made; and
(d) the relevant claimant does not satisfy the conditions prescribed by the PPL rules for the purposes of this paragraph.
When flexible PPL days exceed maximum amounts—exceptional circumstances persons (other than persons that meet prescribed conditions)
(4) This subsection applies to the relevant claimant on a flexible PPL day if:
(a) one or more determinations under section 13 or 14 that parental leave pay is payable to the relevant claimant or the relevant claimant’s partner (if any) are in force in relation to the number of flexible PPL days for the child specified in subsection 31ABA(1); and
(b) the relevant claimant or the relevant claimant’s partner (if any) satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a PPL claim can be made; and
(c) the relevant claimant does not satisfy the conditions prescribed by the PPL rules for the purposes of paragraph (5)(c).
When flexible PPL days exceed maximum amounts—exceptional circumstances persons that meet prescribed conditions (total limit)
(5) This subsection applies to the relevant claimant on a flexible PPL day if:
(a) one or more determinations under section 13 or 14 that parental leave pay is payable to the relevant claimant or the relevant claimant’s partner (if any) are in force in relation to the number of flexible PPL days for the child specified in subsection 31ABA(1); and
(b) the relevant claimant or the relevant claimant’s partner (if any) satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a PPL claim can be made; and
(c) the relevant claimant satisfies the conditions prescribed by the PPL rules for the purposes of this paragraph.
When flexible PPL days exceed maximum amounts—exceptional circumstances persons that meet prescribed conditions (reserved period)
(6) This subsection applies to the relevant claimant on a flexible PPL day if:
(a) the relevant claimant has a partner at the time the relevant claimant makes their first effective claim in relation to the child; and
(b) one or more determinations under section 13 or 14 that parental leave pay is payable to the relevant claimant are in force in relation to the number of flexible PPL days for the child specified in subsection 31ABA(2); and
(c) the relevant claimant or the relevant claimant’s partner satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a PPL claim can be made; and
(d) the relevant claimant satisfies the conditions prescribed by the PPL rules for the purposes of paragraph (5)(c).
Claimant deceased
(7) This subsection applies to the relevant claimant on a flexible PPL day if the relevant claimant is deceased on that day.
Newly arrived resident’s waiting period
(8) This subsection applies to the relevant claimant on a flexible PPL day if that day is in a newly arrived resident’s waiting period for the relevant claimant (see section 31A).
31ABA Maximum number of flexible PPL days
Total limit in relation to child
(1) For the purposes of subsections 31AB(2), (4) and (5), the number of flexible PPL days for a child is:
(a) for a child born before 1 July 2024—100 flexible PPL days for the child; or
(b) for a child born between 1 July 2024 and 30 June 2025—110 flexible PPL days for the child; or
(c) for a child born between 1 July 2025 and 30 June 2026—120 flexible PPL days for the child; or
(d) for a child born on or after 1 July 2026—130 flexible PPL days for the child.
Note 1: Under section 31AB, a claimant is not eligible for parental leave pay for a flexible PPL day if the maximum number of flexible PPL days for the child specified in this section has been reached.
Note 2: Where certain claimants have a partner, the maximum number of flexible PPL days for the claimant is limited to the number specified in subsection (2) of this section. The difference between the number of days specified in this subsection and the number of days specified in subsection (2) is reserved for other claimants (see section 31AB).
Claimant limit when partnered—reserved period
(2) For the purposes of subsections 31AB(3) and (6), the number of flexible PPL days for a child is:
(a) for a child born before 1 July 2024—90 flexible PPL days for the child; or
(b) for a child born between 1 July 2024 and 30 June 2025—100 flexible PPL days for the child; or
(c) for a child born between 1 July 2025 and 30 June 2026—105 flexible PPL days for the child; or
(d) for a child born on or after 1 July 2026—110 flexible PPL days for the child.
31A Newly arrived resident’s waiting period
When person subject to newly arrived resident’s waiting period
(1) Subject to this section, a person is subject to a newly arrived resident’s waiting period if, on or after the commencement of this subsection, the person:
(a) becomes the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act; or
(b) becomes the holder of a permanent visa, except:
(i) a visa referred to in the regulations under the Migration Act 1958 as a Subclass 117 (Orphan Relative) visa or as a Subclass 837 (Orphan Relative) visa; or
(ii) a visa referred to in the regulations under the Migration Act 1958 as a Subclass 115 (Remaining Relative) visa or as a Subclass 835 (Remaining Relative) visa; or
(iii) a visa of a kind determined in an instrument under subsection (1A).
(1A) The Minister may, by legislative instrument, determine a kind of visa for the purposes of subparagraph (1)(b)(iii).
(1B) Paragraph (1)(b) does not apply in relation to a person if, at any time before the commencement of this subsection, the person held a visa covered by paragraph (1)(a).
Length of waiting period
(2) If:
(a) a person is subject to a newly arrived resident’s waiting period; and
(b) the visa covered by paragraph (1)(a) or (b) is in a class of visas determined by the Minister for the purposes of paragraph 739A(3)(b) of the Social Security Act; and
(c) subsection (3) does not apply;
the waiting period:
(d) starts on the day on which the person applied for that visa; and
(e) ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
(3) If:
(a) a person is subject to a newly arrived resident’s waiting period; and
(b) the person has previously held one or more visas in a class of visas determined by the Minister for the purposes of paragraph 739A(4)(b) of the Social Security Act;
the waiting period:
(c) starts on the day on which the person applied for the last of those visas; and
(d) ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
(4) If:
(a) a person is subject to a newly arrived resident’s waiting period; and
(b) neither subsection (2) nor (3) applies to the person;
the waiting period starts on the day on which the person:
(c) first entered Australia; or
(d) becomes the holder of a permanent visa;
whichever occurs last, and ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
Exemptions
(6A) If:
(a) a person has made an effective claim for parental leave pay for a flexible PPL day for a child; and
(b) the person was receiving any of the following on the day before that flexible PPL day:
(i) a social security pension;
(ii) a social security benefit;
(iii) farm household allowance;
(iv) parental leave pay for the child; and
(c) the person was also receiving any of the things mentioned in subparagraphs (b)(i) to (iv) on the day the child was born;
then subsection (1) does not apply to the person for the purposes of that claim to the extent it relates to that flexible PPL day.
(6B) If:
(b) a person has made an effective claim for parental leave pay for a period of at least 10 flexible PPL days for a child; and
(c) that period consists only of consecutive flexible PPL days for the child that are week days; and
(d) the person was receiving any of the following on the day before the start of that period:
(i) a social security pension;
(ii) a social security benefit;
(iii) farm household allowance; and
(e) the person was also receiving any of the things mentioned in subparagraphs (d)(i) to (iii) on the day the child was born;
then subsection (1) does not apply to the person for the purposes of that claim to the extent that it relates to the period referred to in paragraph (b) of this subsection.
(7) Subsection 31AB(8) does not apply to a person in respect of a day in the newly arrived resident’s waiting period for the person if on that day the person holds, or is the former holder of, a visa in a class of visas determined by the Minister for the purposes of subsection 739A(6) of the Social Security Act.
(7A) Subsection 31AB(8) does not apply to a person in respect of a day (the assessment day) in the newly arrived resident’s waiting period for the person if:
(a) on the assessment day the person is a refugee or a former refugee; or
(b) the following apply:
(i) the person was a family member of another person at the time the other person became a refugee before the assessment day;
(ii) the person is a family member of that other person on the assessment day or, if that other person has died, the person was a family member of that other person immediately before that other person died; or
(c) the person is an Australian citizen on the assessment day; or
(d) the person is residing in Australia on the assessment day and has held a special category visa on any day before the assessment day.
(8) For the purposes of subsection (7A):
(a) family member has the meaning given by subsection 7(6D) of the Social Security Act; and
(b) former refugee has the meaning given by subsection 7(1) of the Social Security Act; and
(c) refugee has the meaning given by subsection 7(6B) of the Social Security Act.
Division 3—The work test
32 When a person satisfies the work test
To work out whether a person satisfies the work test on a day, use the following method statement:
Method statement
Step 1. Work out the person’s work test period.
Note: Work test period is defined in sections 33 and 33A for PPL claimants and special PPL claimants.
Step 2. Work out the days in the work test period on which the person has and has not performed qualifying work.
Note: Qualifying work is defined in section 34.
Step 3. Work out whether any days on which the person has not performed qualifying work during the work test period fall within a permissible break.
Note: Permissible break is defined in section 36.
Step 4. Work out whether there is a period (a qualifying period) of 295 consecutive days in the work test period that are days:
(a) on which the person has performed qualifying work; or
(b) that fall within a permissible break.
Step 5. If the person has performed at least 330 hours of qualifying work in a qualifying period, the person satisfies the work test.
Note 1: A person may also satisfy the work test despite not satisfying the test in step 5, if:
(a) the child was born prematurely; or
(b) while the person was pregnant with the child, the person had complications or illness related to the pregnancy which prevented the person from performing paid work.
See section 36A.
Note 1A: A person may also satisfy the work test in special circumstances: see section 36AA.
Note 3: If the person performs qualifying work on a day because of paragraph (c) or (d) of the definition of qualifying work in subsection 34(1), and does not also perform qualifying work on that day because of paragraph (e) or (f) of that definition, see section 35A to work out the hours of qualifying work the person is taken to have performed on the day.
Note 4: If the person performs qualifying work on a day because of paragraph (e) of the definition of qualifying work in subsection 34(1), the number of hours of qualifying work the person is taken to have performed on that day is determined in accordance with the PPL rules (see section 35B).
Note 5: If the person performs qualifying work on a day because of paragraph (f) of the definition of qualifying work in subsection 34(1), the number of hours of qualifying work the person is taken to have performed on that day is determined in accordance with the PPL rules (see section 35C).
33 The work test period—claimants other than COVID‑19 affected claimants
Application of section
(1A) This section applies in relation to a PPL claimant or special PPL claimant who is not a COVID‑19 affected claimant in relation to a claim for parental leave pay for a child.
(1B) If a provision of this Act or the PPL rules requires a person (the first person) to satisfy the work test on a day for the purposes of a PPL claim or special PPL claim made by another person, this section applies as if a reference to a PPL claimant or special PPL claimant were a reference to the first person.
Note: For the work test period for a COVID‑19 affected claimant in relation to such a claim: see section 33A.
Work test period
(1) The work test period for the PPL claimant or special PPL claimant is the 392 days immediately before:
(a) if:
(i) subsection (2A) applies in relation to the PPL claimant or special PPL claimant; and
(ii) the PPL claimant or special PPL claimant would not satisfy the work test if the claimant’s work test period were the work test period under paragraph (b) or (c) of this subsection;
the claimant’s work cessation day; or
(b) if:
(i) the child of the PPL claimant or special PPL claimant is born after the expected date of birth of the child; and
(ii) the PPL claimant or special PPL claimant would not satisfy the work test if the claimant’s work test period were the work test period under paragraph (c) of this subsection;
the expected date of birth of the child; or
(c) otherwise—the day the child is born.
(2) However, for the purposes of making an initial eligibility determination on a PPL claim or special PPL claim, the work test period for the PPL claimant or special PPL claimant is the 392 days immediately before:
(a) if:
(i) subsection (2A) applies in relation to the PPL claimant or special PPL claimant; and
(ii) the PPL claimant or special PPL claimant would not satisfy the work test if the claimant’s work test period were the work test period under paragraph (b) of this subsection;
the claimant’s work cessation day; or
(b) otherwise—the expected date of birth of the child.
(2A) This subsection applies in relation to a PPL claimant or special PPL claimant if:
(a) the PPL claimant or special PPL claimant is pregnant with the child or is the birth mother of the child; and
(b) the PPL claimant or special PPL claimant is performing or performed paid work of a particular kind before the birth of the child; and
(c) the PPL claimant or special PPL claimant will cease or ceased performing that kind of work on a particular day (the claimant’s work cessation day) because of hazards connected with that kind of work that pose or posed a risk to the pregnancy; and
(d) any conditions prescribed by the PPL rules are satisfied.
33A The work test period—COVID‑19 affected claimants
The work test period for a PPL claimant or special PPL claimant who is a COVID‑19 affected claimant in relation to a claim for parental leave pay for a child is the work test period that would apply to the claimant under section 33 if:
(a) subsection 33(1A) were disregarded; and
(b) the reference in subsections 33(1) and (2) to 392 days were a reference to 600 days.
34 When a person performs qualifying work
(1) A person performs qualifying work on a day if at least one of the following applies on the day:
(a) the person performs at least one hour of paid work;
(b) the person takes a period of paid leave of at least one hour;
(ca) the day is a flexible PPL day for a previous child of the person and parental leave pay was payable to the person on that day;
(e) the day is in a jobkeeper payment period for the person;
(f) the day is in a COVID‑19 Australian Government payment period for the person.
(2) For the purposes of paragraph (1)(b), the PPL rules may prescribe what is, or is not, taken to be paid leave.
(3) A jobkeeper payment period for a person is a period for which:
(a) an employer of the person is entitled to one or more jobkeeper payments for the person; or
(b) the person themselves is entitled to one or more jobkeeper payments.
(4) A jobkeeper payment is a payment that:
(a) is payable by the Commonwealth in accordance with rules made under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020; and
(b) is known as jobkeeper payment.
(5) A COVID‑19 Australian Government payment period for a person is a period for which the person is entitled to a COVID‑19 Australian Government payment.
(6) A COVID‑19 Australian Government payment is:
(a) a payment or grant of financial assistance covered by item 492 of the table in Part 4 of Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997; or
(b) a payment or grant of financial assistance by the Commonwealth that is prescribed by the PPL rules for the purposes of this paragraph.
35 When a person performs paid work
People other than self‑employed
(1) A person performs paid work on a day if, on that day, the person performs work (whether as an employee, a contractor or otherwise and whether or not in Australia) for another entity for remuneration or other financial benefit.
(2) However, a person is taken not to perform paid work for the purposes of subsection (1) if the other entity is controlled by the person (whether alone or with others).
Self‑employed
(3) A person performs paid work on a day if, on that day, the person performs work for the purposes of a business that is carried on for profit (whether in or outside of Australia) by:
(a) the person (whether alone or with others); or
(b) an entity that is controlled by the person (whether alone or with others).
When a person controls an entity
(4) A person controls an entity if the person has the capacity to determine the outcome of decisions about the entity’s financial and operating policies.
PPL rules about what paid work is
(5) The PPL rules may prescribe what is, or is not, taken to be paid work.
35A Hours of qualifying work on a flexible PPL day
If person does not perform paid work or take paid leave on previous flexible PPL day
(1) For the purposes of step 5 of the method statement in section 32, if a person performs qualifying work on a day only because the day is a flexible PPL day for a previous child, the person is taken to have performed 7.6 hours of work on that day.
If person performs paid work on previous flexible PPL day
(2) For the purposes of step 5 of the method statement in section 32, if a person performs qualifying work on a day because both:
(a) the person performs at least one hour of paid work on the day; and
(b) the day is a flexible PPL day for which parental leave pay is payable to the person for a previous child;
the person is taken to have performed on that day the greater of:
(c) the hours of work the person would be taken to have performed if subsection (1) applied; and
(d) the number of hours of paid work performed by the person on that day.
If person takes paid leave on previous flexible PPL day
(3) For the purposes of step 5 of the method statement in section 32, if a person performs qualifying work on a day because both:
(a) the person takes a period of paid leave of at least one hour on the day; and
(b) the day is a flexible PPL day for which parental leave pay is payable to the person for a previous child;
the person is taken to have performed on that day the greater of:
(c) the hours of work the person would be taken to have performed if subsection (1) applied; and
(d) the number of hours of paid leave taken by the person on that day.
35B Hours of qualifying work on a day in a jobkeeper payment period
(1) For the purposes of step 5 of the method statement in section 32, if a person performs qualifying work on a day because the day is in a jobkeeper payment period for the person, the person is taken to have performed on that day the number of hours of work determined in accordance with the PPL rules.
(2) Subsection (1) has effect:
(a) even if the person also performs qualifying work on that day because of paragraph 34(1)(a), (b) or (ca); and
(b) despite section 35A.
35C Hours of qualifying work on a day in a COVID‑19 Australian Government payment period
(1) For the purposes of step 5 of the method statement in section 32, if a person performs qualifying work on a day because the day is in a COVID‑19 Australian Government payment period for the person, the person is taken to have performed on that day the number of hours of work determined in accordance with the PPL rules.
(2) Subsection (1) has effect:
(a) even if the person also performs qualifying work on that day because of paragraph 34(1)(a), (b) or (ca); and
(b) despite section 35A.
36 When there is a permissible break
(1) A permissible break is any of the periods in subsections (2) and (3).
Permissible break between 2 qualifying work days
(2) If, between a day on which the person performed qualifying work (a qualifying work day) in the work test period and the next qualifying work day, there was at least 1 day but not more than 84 consecutive days on which the person did not perform qualifying work—the day or period of consecutive days between those 2 qualifying work days is a permissible break.
Permissible break at the start of the work test period
(3) If:
(a) a person performed qualifying work on a day (the earlier qualifying work day) before the first day in the work test period; and
(b) the person next performed qualifying work on a day (the later qualifying work day) after the first day in the work test period; and
(c) the later qualifying work day was no more than 84 consecutive days after the earlier qualifying work day;
then the day or period of consecutive days on which the person did not perform qualifying work between the first day in the work test period and the later qualifying work day (including the first day of the work test period) is a permissible break.
36A Premature birth or pregnancy‑related complications or illness
(1) A person also satisfies the work test on a day if:
(a) the Secretary is satisfied that either or both of the following circumstances existed:
(i) if the person is covered by subsection (2)—the child was born prematurely;
(ii) if the person is the child’s birth mother—while the person was pregnant with the child, the person had complications or illness related to the pregnancy which prevented the person from performing paid work; and
(b) the Secretary is satisfied that the person would have satisfied the work test on the day in accordance with section 32 if that circumstance, or those circumstances, had not existed.
(2) For the purposes of subparagraph (1)(a)(i), the following persons are covered:
(a) the child’s birth mother;
(b) a person who:
(i) is a parent of the child; and
(ii) is not the child’s birth mother;
(c) the partner of the child’s birth mother.
36AA Special circumstances
A person also satisfies the work test on a day if:
(a) the Secretary is satisfied that special circumstances of a kind prescribed by the PPL rules for the purposes of this paragraph exist in relation to the person on the day; and
(b) the Secretary is satisfied that the person would have satisfied the work test on the day in accordance with section 32 if those circumstances had not existed.
Division 4—The income test
Subdivision A—The income test
37 When a person satisfies the income test
(1) A person satisfies the income test on a day:
(a) that is a flexible PPL day for a child of the person; or
(b) on which a conditional eligibility determination or initial eligibility determination is made in relation to the person;
if the person’s adjusted taxable income for the reference income year is not more than the relevant individual PPL income limit.
(2) A person satisfies the income test on a day:
(a) that is a flexible PPL day for a child of the person; or
(b) on which a conditional eligibility determination or initial eligibility determination is made in relation to the person;
if:
(c) the person does not have a partner at the time the person makes the claim to which that flexible PPL day or determination relates; and
(d) the person’s adjusted taxable income for the reference income year is not more than the relevant family PPL income limit.
(3) A person satisfies the income test on a day:
(a) that is a flexible PPL day for a child of the person; or
(b) on which a conditional eligibility determination or initial eligibility determination is made in relation to the person;
if:
(c) the person has a partner at the time the person makes the claim to which that flexible PPL day or determination relates; and
(d) the total of the following amounts is not more than the relevant family PPL income limit:
(i) the person’s adjusted taxable income for the reference income year;
(ii) the adjusted taxable income of the person’s partner for the reference income year.
38 A person’s adjusted taxable income
A person’s adjusted taxable income for an income year is worked out in accordance with Schedule 3 to the Family Assistance Act (disregarding subclause 2(2) and clauses 3 and 3A of that Schedule).
Note: Schedule 3 to the Family Assistance Act sets out how to work out a person’s adjusted taxable income for the purposes of that Act.
39 The reference income year
The reference income year for a person is:
(a) the income year that ended before the earlier of:
(i) the day the person made the claim; and
(ii) the day the child was born.
40 The relevant individual PPL income limit and relevant family PPL income limit
(1) The relevant individual PPL income limit for a PPL claimant or special PPL claimant is the individual PPL income limit that applies on the earlier of the following days:
(a) the day the person made the claim;
(b) the day the child was born.
(2) The relevant family PPL income limit for a PPL claimant or special PPL claimant is the family PPL income limit that applies on the earlier of the following days:
(a) the day the person made the claim;
(b) the day the child was born.
41 The individual PPL income limit and family PPL income limit
(1) The individual PPL income limit that applies on a day is:
(a) if the day is on or after 1 October 2010 but before 1 July 2021—$150,000; and
(b) if the day is on or after an indexation day (the relevant indexation day) but before the next indexation day—the indexed amount on the relevant indexation day worked out under Subdivision B.
(2) The family PPL income limit that applies on a day is:
(a) if the day is on or after 1 July 2023 but before 1 July 2024—$350,000; and
(b) if the day is on or after an indexation day (the relevant indexation day) but before the next indexation day—the indexed amount on the relevant indexation day worked out under Subdivision B.
Subdivision B—Indexation of individual and family PPL income limits
42 Indexation of individual and family PPL income limits
Indexation day
(1) Subject to subsection (2), the amount of the individual PPL income limit and the amount of the family PPL income limit are to be indexed under this Subdivision on 1 July each year (the indexation day).
(2) The first indexation day for an amount of the individual PPL income limit is 1 July 2021 and the first indexation day for an amount of the family PPL income limit is 1 July 2024.
Working out the indexed amount for the individual and family PPL income limits
(3) This is how to work out the indexed amount for the individual and family PPL income limits on the indexation day:
Method statement
Step 1. Work out the amount (the previous amount) for the relevant income limit that applied on the day immediately before the indexation day.
Step 2. Use section 43 to work out the indexation factor on the indexation day.
Step 3. Multiply the previous amount by the indexation factor: the result is the provisional indexed amount.
Step 4. Use section 44 to round off the provisional indexed amount: the result is the indexed amount.
43 The indexation factor
(1) The indexation factor is worked out using the following formula and applying subsections (2) and (3):
where:
base December quarter means the December quarter that has the highest index number of the December quarters before the reference December quarter (but not earlier than the December quarter 2007).
index number, for a quarter, means the All Groups Consumer Price Index number that is the weighted average of the 8 capital cities and is published by the Australian Statistician in relation to that quarter.
reference December quarter means the last December quarter before the indexation day.
(2) The indexation factor is to be worked out to 3 decimal places, but increased by 0.001 if the fourth decimal place is more than 4.
(3) If an indexation factor worked out under subsections (1) and (2) would be less than 1, that indexation factor is to be increased to 1.
Changes to CPI reference base and publication of substituted index numbers
(4) Amounts are to be worked out under this section:
(a) using only the index numbers published in terms of the most recently published reference base for the Consumer Price Index; and
(b) disregarding index numbers published in substitution for previously published index numbers (except where the substituted numbers are published to take account of changes in the reference base).
44 Rounding off indexed amounts
(1) If a provisional indexed amount is a multiple of $1.00, the provisional indexed amount becomes the indexed amount.
(2) If a provisional indexed amount is not a multiple of $1.00, the indexed amount is the provisional indexed amount rounded up or down to the nearest multiple of $1.00.
(3) If a provisional indexed amount is not a multiple of $1.00 but is a multiple of $0.50, the indexed amount is the provisional indexed amount rounded up to the nearest multiple of $1.00.
Division 5—The Australian residency test
45 When a person satisfies the Australian residency test
(1) A person satisfies the Australian residency test on a day if, on that day, the person:
(a) is an Australian resident; or
(b) is a special category visa holder residing in Australia; or
(c) satisfies subsection (2).
When a person satisfies this subsection
(2) A person satisfies this subsection if:
(a) the person is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act; and
(b) either:
(i) the person is in Australia; or
(ii) the person is temporarily absent from Australia for not more than 6 weeks and the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.
46 Effect of absence from Australia on Australian residency test
(1) Despite section 45, a person does not satisfy the Australian residency test on a day (the relevant day) if:
(a) before the relevant day, the person left Australia; and
(b) on the relevant day, the person has been absent from Australia for more than 56 weeks since the day the person left Australia.
Effect of a person’s return to Australia within 56 weeks
(2) If:
(a) a person who has been absent from Australia for more than 6 weeks, but not more than 56 weeks, returns to Australia; and
(b) the person leaves Australia again less than 6 weeks later;
then the person is taken not to have returned to Australia for the purposes of subsection (1).
Effect of a person’s return to Australia after 56 weeks
(3) If:
(a) a person satisfies the Australian residency test while the person is absent from Australia; and
(b) the person then ceases to satisfy the Australian residency test because of the application of subsection (1) or a previous application of this subsection; and
(c) the person returns to Australia; and
(d) the person leaves Australia again less than 6 weeks later;
then, despite section 45, the person does not satisfy the Australian residency test at any time during:
(e) the person’s return to Australia referred to in paragraph (c); or
(f) the person’s absence from Australia referred to in paragraph (d).
Extension of 56 week period for Australian Defence Force and Australian Federal Police deployments
(4) The Secretary may extend the 56 week period referred to in subsection (1) or (2), to a period of no more than 3 years, if the Secretary is satisfied that the person is unable to return to Australia within the 56 week period because the person is:
(a) deployed outside Australia as a defence force member, under conditions specified in a determination made under the Defence Act 1903 that relates to such deployment; or
(b) deployed outside Australia, for the purpose of capacity‑building or peacekeeping functions, as:
(i) a member or a special member of the Australian Federal Police; or
(ii) a protective service officer within the meaning of the Australian Federal Police Act 1979.
Extension of 56 week period for events or circumstances prescribed in the PPL rules
(5) The Secretary may extend the 56 week period referred to in subsection (1) or (2), to a period of no more than 3 years, if the Secretary is satisfied that:
(a) the person is unable to return to Australia within the 56 week period because of an event prescribed by the PPL rules; or
(b) a circumstance prescribed by the PPL rules applies.
Division 6—Caring for a child
47 When a person is caring for a child
(1) A person is caring for a child on a day if the child is in the person’s care on that day.
Note: More than one person may be caring for the same child on any particular day.
(2) Despite subsection (1), a person is not caring for a child on a day if, before that day, the child has died.
Part 2‑4—Claims for parental leave pay
Division 1—Guide to this Part
51 Guide to this Part
This Part is about claims for parental leave pay. A person cannot be paid parental leave pay unless the person has first made a claim for it.
Division 2 sets out the rules about claims. There are 2 types of claims: PPL claims and special PPL claims. These claims relate to each other, although PPL claims are the main type of claim. PPL claims will often be the only claims that are made. Section 54 sets out who can make each type of claim.
The Secretary cannot make a payability determination on a claim unless it is an effective claim. To be effective, the claim must be made by the right person and satisfy the requirements in the provisions listed in section 55. One of those requirements is that the claim must be in the form, and contain the information, required by the Secretary (see section 56). Another requirement is that the claim must be made in the period set out in section 60.
Division 2—Claims for parental leave pay
52 Who can claim
Only a natural person can make a claim for parental leave pay.
53 Types of claims
(1) There are 2 types of claims for parental leave pay:
(a) a PPL claim; and
(b) a special PPL claim.
(2) A PPL claim is a claim in the form approved by the Secretary for PPL claims.
(3) A special PPL claim is a claim in the form approved by the Secretary for special PPL claims.
(4) For the purposes of subsections (2) and (3), the Secretary may approve:
(a) different forms for different types of claims; and
(b) different forms for the same type of claim.
54 Who can make a PPL claim or special PPL claim
PPL claim
(1) Only the following people can make a PPL claim for a child:
(a) the child’s birth mother;
(b) an adoptive parent of the child;
(c) a person who:
(i) is a parent of the child; and
(ii) is not the child’s birth mother;
(d) the partner of the child’s birth mother;
(e) the partner of an adoptive parent of the child;
(f) the partner of a person covered by paragraph (c);
(g) a person who satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a PPL claim can be made.
Special PPL claim
(2) Only the following people can make a special PPL claim for a child:
(a) the partner of a person covered by paragraph (1)(g);
(b) a person who satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a special PPL claim can be made.
55 When a claim is effective
(1) A claim for parental leave pay is not effective unless the requirements of the following provisions that apply to the claim are satisfied:
(a) section 56 (which deals with the form etc. of the claim);
(ba) section 57A (which deals with the specification in a claim of flexible PPL days for a child etc.);
(c) section 58 (which deals with expected date of birth etc.);
(d) section 59 (which deals with tax file number statements);
(da) section 59A (which deals with permission to make claims for flexible PPL days for a child);
(e) section 60 (which deals with when to make the claim).
(2) A claim for parental leave pay is also not effective if it is made by a person who cannot make that type of claim under section 54.
(3) A claim for parental leave pay that is not effective is taken not to have been made.
56 Requirements of the claim
(1) The claim for parental leave pay must:
(a) be made in the form approved, and the manner required, by the Secretary for that type of claim; and
(b) contain any information (including information about the claimant’s employer or the claimant’s employment with that employer) required by the Secretary; and
(c) be accompanied by any documents required by the Secretary.
(2) For the purposes of paragraphs (1)(b) and (c), the Secretary may require that different information be contained in, and different documents accompany:
(a) different types of claims; or
(b) different claims of the same type of claim.
57A Specification in claim of flexible PPL days for a child etc.
(1) A claim for parental leave pay for one or more flexible PPL days for a child must specify each of those days.
(2) A flexible PPL day for the child specified in the claim must not be a day that is more than 100 days before the day the claim is made.
(2A) Subsection (2) does not apply to the claim if:
(a) the claimant is a COVID‑19 affected claimant in relation to the claim; or
(b) the claimant is a PPL claimant who satisfies the work test in relation to the claim by reason of at least one day in the claimant’s work test period being a day in a COVID‑19 Australian Government payment period for the claimant.
(3) Before a payability determination is made on the claim, the claimant may change a flexible PPL day for the child specified in the claim by notifying the Secretary of the new flexible PPL day for the child.
(4) If:
(a) one or more days were specified in the claim for parental leave pay as flexible PPL days for the child at the time the claim was made; and
(b) the Secretary is satisfied that the circumstances prescribed by the PPL rules apply in relation to the claim;
then, before a payability determination is made on the claim, the Secretary may determine, in accordance with any requirements prescribed by the PPL rules, that the claim is to be taken, for the purposes of making the determination, to have specified one or more other flexible PPL days for the child.
58 Expected date of birth
If the claim is a PPL claim and it is made before the child’s birth, the claim must specify the child’s expected date of birth.
59 Tax file number statement
(1) The claim for parental leave pay must contain the person’s tax file number statement, which is a statement of the kind set out in subsection (2), (3), (4) or (5).
Statement of tax file number
(2) The first kind is a statement of the person’s tax file number.
Statement that person does not know his or her tax file number
(3) The second kind is a statement that the person:
(a) has a tax file number but does not know what it is; and
(b) has asked the Commissioner of Taxation to inform the person of his or her tax file number; and
(c) authorises the Commissioner of Taxation to tell the Secretary:
(i) whether the person has a tax file number; and
(ii) if the person has a tax file number—that number.
Statement that an application for a tax file number is pending
(4) The third kind is a statement that the person:
(a) has an application for a tax file number pending; and
(b) authorises the Commissioner of Taxation to tell the Secretary:
(i) if a tax file number is issued to the person—that number; or
(ii) if the application is refused—that the application has been refused; or
(iii) if the application is withdrawn—that the application has been withdrawn.
Statement that a tax file number has previously been provided
(5) The fourth kind is a statement that the person’s tax file number has previously been provided with an earlier claim for parental leave pay.
59A Permission to make claims for flexible PPL days for a child
When permission is required for an effective claim
(1) A PPL claim for parental leave pay for one or more flexible PPL days for a child that is made by the following persons is not an effective claim unless permission to make a claim in relation to the child is given, and has not been revoked, by the child’s birth mother:
(a) a person who:
(i) is a parent (other than an adoptive parent) of the child; and
(ii) is not the child’s birth mother;
(b) the partner of the child’s birth mother;
(c) the partner of a person covered by paragraph (a).
(2) However, subsection (1) does not apply to a person who makes a PPL claim in the circumstances prescribed by the PPL rules.
(3) A PPL claim for parental leave pay for one or more flexible PPL days for a child that is made by the partner of an adoptive parent of the child is not an effective claim unless permission to make the claim in relation to the child is given, and has not been revoked, by:
(a) if:
(i) a payability determination under section 13 that parental leave pay for the child is payable has been made in relation to an adoptive parent of the child; and
(ii) that determination is the first payability determination under section 13 that parental leave pay for the child is payable that has been made in relation to an adoptive parent of the child;
that adoptive parent; or
(b) otherwise—an adoptive parent of the child who is nominated by the partner to give permission.
(4) A special PPL claim for parental leave pay for one or more flexible PPL days for a child that is made by the partner of a person who satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a PPL claim can be made is not an effective claim unless:
(a) permission to make a claim in relation to the child is given, and has not been revoked, by the person who satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a PPL claim can be made; and
(b) a payability determination under section 13 that parental leave pay for the child is payable is in force in relation to that person.
(5) The permission must:
(a) be given to the Secretary in the form approved by the Secretary; and
(b) specify the person to whom the permission is given.
Note: The permission does not need to specify the number of flexible PPL days for the child in relation to which a claim to which the permission relates may be made.
Revocation of permission
(6) If a person has given permission under subsection (1), (3) or (4), the person may revoke the permission.
(7) The revocation must be given to the Secretary in the form approved by the Secretary.
60 When to claim
A claim for parental leave pay for a flexible PPL day for a child must be made in the period that:
(a) starts on the day that is 97 days before the expected date of birth of the child; and
(b) ends on the day before:
(i) if, before the child’s first birthday, an effective claim for parental leave pay for the child has been made by a PPL claimant for the child—the child’s second birthday; or
(ii) otherwise—the child’s first birthday.
61 Claim may be withdrawn or varied
(1) After making an effective claim for parental leave pay, the person may withdraw or vary the claim before a payability determination is made on it.
(2) The person may only do so in a manner approved by the Secretary.
(3) If a claim for parental leave pay is withdrawn, it is taken never to have been made.
Chapter 3—Payment of parental leave pay
Part 3‑1—Instalments of parental leave pay
Division 1—Guide to this Part
62 Guide to this Part
This Part is about instalments of parental leave pay.
Parental leave pay is payable in instalments for regular periods called instalment periods. An instalment is payable to a person if one or more flexible PPL days for a child of the person fall within an instalment period for the person and parental leave pay is payable to the person for those days.
Instalments are payable by either a person’s employer (see Part 3‑2) or the Secretary (see Part 3‑3).
This Part also contains rules for working out the amount of an instalment and deals with the deductions that may be made from an instalment.
Division 2—Instalments of parental leave pay
63 Instalments of parental leave pay
(1) Parental leave pay must be paid to a person in instalments.
Who pays an instalment
(2) An instalment is payable to a person, in accordance with sections 72, 84, 85, 86 and 87, by either:
(a) the person’s employer; or
(b) the Secretary.
When an instalment is payable
(3) An instalment is payable to a person if one or more flexible PPL days for a child of the person:
(a) fall within an instalment period for the person; and
(b) are days for which parental leave pay is payable to the person.
(4) An instalment becomes payable on the payday for the instalment.
(5) More than one instalment may be paid to a person on a particular day.
64 A person’s instalment period and the payday for an instalment
(1) A person’s instalment period, and the payday for an instalment that relates to an instalment period, are worked out according to the following rules.
Note: Sections 93 and 94 affect when an instalment period for a person starts and ends in certain circumstances.
Instalment to be paid by employer—regular pay period
(2) If the instalment is to be paid by the person’s employer and there is a regular period for which the person would usually be paid in relation to the person’s performance of work:
(a) the person’s instalment period is each such regular period; and
(b) the payday for the instalment is the day on which the person would usually be paid in relation to the person’s performance of work for the instalment period to which the instalment relates.
Instalment to be paid by employer—no regular pay period
(3) If the instalment is to be paid by the person’s employer and there is not a regular period for which the person would usually be paid in relation to the person’s performance of work:
(a) the person’s instalment period is each calendar month; and
(b) the payday for the instalment is the first day after the end of the instalment period to which the instalment relates.
Instalment to be paid by Secretary
(4) If the instalment is to be paid by the Secretary:
(a) the person’s instalment period is the period of 14 days starting on a day the Secretary considers appropriate for the person (or a class of person in which the person is included) and each successive 14 day period; and
(b) the payday for the instalment is a day that the Secretary considers appropriate that occurs after the instalment period to which the instalment relates.
65 The amount of an instalment
(1) The amount of an instalment payable to a person is the sum of the daily national minimum wage amounts for each day, during the instalment period to which the instalment relates, that is:
(a) a flexible PPL day for a child of the person; and
(b) a day for which parental leave pay is payable to the person.
(2) The daily national minimum wage amount for a day is 7.6 times the amount of the national minimum wage (when expressed as a monetary amount per hour) set by a national minimum wage order that is in operation on that day (whether or not the order has also taken effect on that day).
Note: For when a national minimum wage order comes into operation, see section 287 of the Fair Work Act.
(3) For the purposes of subsection (2):
(a) the national minimum wage is taken to be the wage set by the national minimum wage order for employees in relation to whom no exceptional circumstances exist (see subsection 287(2) of the Fair Work Act); and
(b) if:
(i) the Fair Work Commission makes a determination under section 296 of the Fair Work Act varying a national minimum wage order; and
(ii) the day the determination comes into operation under section 297 of that Act is earlier than the day the determination is made;
the determination is taken to come into operation on the day the determination is made.
66 Protection of instalment
(1) An instalment is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Note: Section 97 (which deals with the effect of a garnishee etc. order) also provides a protection for an account into which an instalment has been paid.
(2) Subsection (1) has effect subject to sections 67, 68, 69, 69A and 69B (which deal with deductions).
67 Deductions authorised by person
(1) An employer or the Secretary may deduct an amount from an instalment that is payable to a person if the deduction is:
(a) authorised by the person; and
(b) principally for the person’s benefit.
Note: A deduction by an employer in accordance with a salary sacrifice or other arrangement, under which a person chooses to:
(a) forgo an amount payable to the person in relation to an instalment; but
(b) receive some other form of benefit or remuneration;
will be permitted if it is made in accordance with this section.
(2) The Secretary may deduct an amount from an instalment that is payable to a PPL claimant or special PPL claimant for a child if:
(a) another PPL claimant or special PPL claimant owes a debt to the Commonwealth in relation to amounts paid to, or in relation to, that other PPL claimant or special PPL claimant by way of instalments for the same child; and
(b) the deduction is authorised by the first PPL claimant or special PPL claimant for the purposes of the recovery of the debt.
(3) An authorisation for the purposes of paragraph (1)(a) or (2)(b):
(a) must be in writing; and
(b) must specify the amount of the deduction; and
(c) may be withdrawn in writing by the person at any time.
(4) Any variation in the amount of the authorised deduction must also be authorised in writing by the person.
68 Deductions for PAYG withholding
An employer or the Secretary (the payer) may deduct an amount from an instalment that is payable to a person if the payer is required to withhold the amount under section 12‑110 in Schedule 1 to the Taxation Administration Act 1953.
69 Deductions relating to child support
(1) An employer may deduct an amount from an instalment that is payable to a person if the employer is required to deduct the amount under section 46 or 72A of the Child Support (Registration and Collection) Act 1988.
(2) The Secretary, in accordance with a notice given to the Secretary under section 72AD of the Child Support (Registration and Collection) Act 1988 in relation to a person to whom an instalment is payable, must:
(a) make deductions from an instalment that is payable to the person (subject to subsections (3) and (4) of that section); and
(b) pay the amounts deducted to the Child Support Registrar.
69A Deductions to avoid overpayment of income support payment
If:
(a) a payability determination that parental leave pay is payable to a person is made; and
(b) an instalment for an instalment period becomes payable to the person by the Secretary on a particular day; and
(c) before that day, the person was paid an amount of income support payment under the social security law or Veterans’ Entitlements Act 1986 for a period (the income support period) that falls within, or overlaps with, the instalment period; and
(d) the Secretary is satisfied that the amount of income support payment so paid exceeds the amount of income support payment that would have been payable to the person for the income support period under that law or Act had the instalment been taken into account when working out the amount of income support payment payable to the person for that period under that law or Act;
then the Secretary may deduct from the instalment an amount equal to the excess.
Note: A person’s income is taken into account when working out the amount of income support payment that is payable to the person under the social security law or the Veterans’ Entitlements Act 1986. An instalment is income so payment of an instalment may reduce the amount of income support payment that is payable to the person.
69B Deductions relating to debt owed to the Commonwealth
The Secretary may deduct an amount from an instalment that is payable to a person if:
(a) a determination under section 190A has been made in relation to the person; and
(b) the deduction is made in accordance with the determination, as made or varied under that section.
70 No other deductions
(1) An amount must not be deducted from an instalment except in accordance with section 67, 68, 69, 69A or 69B. This subsection applies despite any other law of the Commonwealth, a State or a Territory.
(2) An employer must comply with subsection (1).
Note: This subsection is a civil penalty provision (see section 146).
Part 3‑2—Payment of instalments by employer
Division 1—Guide to this Part
71 Guide to this Part
This Part is about the payment of instalments to a person by the person’s employer.
Division 1A sets out when a person has a continuous flexible period.
Under Division 2, an employer is required to pay an instalment to a person if:
(a) an employer determination has come into force for the employer and the person (see Part 3‑5); and
(b) the instalment is payable in relation to a flexible PPL day for the child that falls within the person’s continuous flexible period for the child; and
(c) the employer has been paid enough by the Secretary to fund the instalment.
Division 3 is about the payment by the Secretary of amounts (called PPL funding amounts) to an employer to ensure the employer has been paid enough to fund an instalment.
Division 4 sets out certain obligations of employers relating to paying instalments (such as giving and keeping records and notifying the Secretary if certain events happen).
Division 1A—Continuous flexible periods
71A When a person has a continuous flexible period
If:
(a) either:
(i) one or more payability determinations that parental leave pay is payable to a person for a period (the relevant period) of one or more flexible PPL days for a child are in force under section 13 or 14; or
(ii) one or more initial eligibility determinations for a person for a period (the relevant period) of one or more flexible PPL days for a child are in force under section 26A; and
(b) the relevant period only consists of consecutive flexible PPL days for the child that are week days; and
(c) the relevant period consists of at least 40 consecutive flexible PPL days for the child that are week days;
then the person’s continuous flexible period for the child is the period that:
(d) starts on the first day in the relevant period; and
(e) ends on the earlier of the following days:
(i) the last day in the relevant period;
(ii) the day before the child’s first birthday.
Division 2—Payment of instalments by employer
72 When an employer pays instalments
Employer determination in force on day during instalment period
(1) An employer must pay an instalment to a person on the payday for the instalment if:
(a) the instalment is payable to the person; and
(b) an employer determination is in force for the employer and the person on a day during the instalment period to which the instalment relates; and
(c) as at the payroll cut‑off for the instalment, the employer has been paid enough to fund the instalment.
Note 1: This subsection is a civil penalty provision (see section 146).
Note 2: See section 96 for when the employer is taken to have complied with this requirement.
(1A) If an employer is required under subsection (1) to pay an instalment to a person in relation to a child of the person, the requirement only applies to the extent that the instalment is payable in relation to a flexible PPL day for the child that falls within the continuous flexible period mentioned in the employer notice relating to the employer determination.
Note 1: The Secretary must pay an instalment to the person to the extent that the instalment is payable in relation to a day that is a flexible PPL day for the child and that does not fall within the person’s continuous flexible period for the child (see subsection 84(2A)).
Note 2: The Secretary will also be required to pay an instalment to the person if the person’s continuous flexible period for the child is extended on review after that period has ended (see sections 87 and 92A).
Employer determination comes into force after instalment period
(2) If:
(a) a person’s employer becomes required under subsection (1) to pay an instalment in relation to a child of the person after the start of the person’s continuous flexible period for the child; and
(b) an earlier instalment is taken to have become payable to the person under section 91 (which deals with the effect of the Secretary or an employer becoming required to pay instalments after the start of a person’s continuous flexible period for a child); and
(c) as at the payroll cut‑off for the instalment referred to in subsection (1), the employer has been paid enough to fund the earlier instalment;
the employer must pay the earlier instalment on the payday for the instalment referred to in subsection (1).
Note 1: This subsection is a civil penalty provision (see section 146).
Note 2: See section 96 for when the employer is taken to have complied with this requirement.
Employer determination in force and employer paid enough at later time
(3) If:
(a) an employer is not required under subsection (1) or (2) to pay an instalment only because paragraph (1)(c) or (2)(c) (as the case may be) was not satisfied; and
(b) that paragraph is satisfied as at the payroll cut‑off for an instalment for a later instalment period;
the employer must pay the instalment to the person on the payday for the instalment for that later instalment period.
Note 1: This subsection is a civil penalty provision (see section 146).
Note 2: If there is no instalment payable for a later instalment period, see section 95.
Note 3: See section 96 for when the employer is taken to have complied with this requirement.
(4) An employer is not required to pay an instalment to a person except in accordance with this section.
73 When an employer has been paid enough to fund an instalment
An employer has been paid enough to fund an instalment for a person as at a day if the total of the PPL funding amounts paid to the employer for the person for a child before that day is at least the total of the following amounts:
(a) the amount of the instalments the employer has previously paid to, or in relation to, the person for the child;
(b) the amount of the instalment;
(c) the amount of any other instalment that is to be paid to, or in relation to, the person on the payday for the instalment.
74 Method of payment of instalment payable by employer
An instalment payable to a person by an employer must be paid in money by one, or a combination, of the following methods:
(a) cash;
(b) cheque, money order, postal order or similar order, payable to the person;
(c) the use of an electronic funds transfer system to credit an account held by the person.
Note: This section is a civil penalty provision (see section 146).
Division 3—PPL funding amounts
75 Payment of PPL funding amounts
(1) The Secretary must pay one or more amounts (the PPL funding amounts) to a person’s employer if the Secretary is satisfied that:
(a) an instalment was or is likely to be payable to the person; and
(b) the employer is or is likely to be required to pay the instalment to the person.
Note: Subsections 72(1) and (1A) deal with when an employer is required to pay an instalment to a person.
(2) Subsection (1) does not require the Secretary to pay a PPL funding amount in relation to an instalment earlier than a reasonable period before the payroll cut‑off for the instalment.
(3) If:
(a) the Secretary is required under subsection (1) to pay a PPL funding amount to a person’s employer in relation to an instalment for the person; and
(b) the employer has not been paid enough to fund the instalment as at the first payroll cut‑off for an instalment for the person after the Secretary becomes required to pay the PPL funding amount;
the Secretary must pay the PPL funding amount to the employer before the next payroll cut‑off for an instalment for the person.
76 Rules affecting the amount of a PPL funding amount
(1) A PPL funding amount for a person must not:
(a) be less than the minimum amount for the PPL funding amount; or
(b) be more than the sum of the following:
(i) the minimum amount;
(ii) the amount that is 30 times the daily national minimum wage amount that applies on the day the PPL funding amount is paid to the employer of the person.
(2) The minimum amount for a PPL funding amount is the sum of the amounts of the instalments that:
(a) will have become payable to the person by the person’s employer as at the next payday for an instalment for the person after the PPL funding amount is paid to the person’s employer; and
(b) do not relate to days for which the Secretary has previously paid the employer a PPL funding amount for the person.
(3) The sum of the PPL funding amounts paid to a person’s employer for the person must not be more than the sum of the amounts of the instalments that are payable to the person by the person’s employer.
77 Notice requirements relating to PPL funding amounts
(1) The Secretary must give a written notice to an employer each time the Secretary pays a PPL funding amount to the employer for a person.
(2) The notice must contain the following information:
(a) the name of the person for whom the PPL funding amount has been paid;
(b) the amount of the PPL funding amount;
(da) any flexible PPL days for a child of the person for which the PPL funding amount has been paid;
(db) the daily national minimum wage amount for each of those flexible PPL days;
(e) any information prescribed by the PPL rules.
79 Protection of PPL funding amounts
A PPL funding amount is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise, until it has been paid to the employer.
Division 4—Obligations of employer relating to paying instalments
80 Giving person record of payment
An employer must, before the end of the next working day after paying an instalment to a person, give the person the information prescribed by the PPL rules in the form (if any) prescribed by the PPL rules.
Note: This section is a civil penalty provision (see section 146).
81 Keeping records
(1) An employer must make, and keep for 7 years, records of the kind prescribed by the PPL rules in relation to each person for whom an employer determination for the employer comes into force.
Note: This subsection is a civil penalty provision (see section 146).
(2) A record must:
(a) if a form is prescribed by the PPL rules for that kind of record—be in that form; and
(b) include any information prescribed by the PPL rules.
Note: This subsection is a civil penalty provision (see section 146).
82 Notifying Secretary if certain events happen
(1) If the Secretary makes an employer determination for a person and the person’s employer in relation to a child of the person, the employer must notify the Secretary if any of the following events happen:
(a) the employer’s bank account information changes;
(b) the person’s instalment period changes;
(c) the day on which the person would usually be paid in relation to the person’s performance of work for instalment periods for the person changes;
(d) the payroll cut‑off for instalments payable to the person changes;
(e) the employer becomes aware that the employer has ceased, or is likely to cease, to carry on a business;
(f) the person performs more than one hour of paid work for the employer at any time during the person’s continuous flexible period for the child;
(g) the person ceases to be employed by the employer before the end of the person’s continuous flexible period for the child;
(h) the person is not paid an instalment the employer is required to pay to the person;
(i) the employer is not paid enough to fund a particular instalment for the person as at the payroll cut‑off for the instalment;
(j) if the Secretary has agreed to pay a particular PPL funding amount to the employer—the employer is not paid the PPL funding amount as agreed;
(k) in any case—a PPL funding amount paid to the employer is more than the sum of the amounts of the instalments payable to the person for the days for which the PPL funding amount has been paid;
(l) the sum of the PPL funding amounts paid to the employer for the person is more than the sum of the amounts of the instalments that are payable by the employer to the person under this Part.
(2) The notice must be given:
(a) as soon as practicable after the employer becomes aware that the event has happened (subject to paragraph (b)); and
(b) if paragraph (1)(e) applies—not more than 30 days before the day the employer ceased, or is likely to cease, to carry on the business; and
(c) in the manner set out in a written notice given to the employer under subsection (2B).
Note: This subsection is a civil penalty provision (see section 146).
(2A) The Secretary must approve a manner of notification that an employer must use when notifying the Secretary of an event under this section.
(2B) The Secretary must, by written notice, notify the employer of the approved manner of notification.
When obligation to notify of certain events ceases
(3) An obligation under subsection (1) that arises because of any of paragraphs (1)(a) to (g) ceases to apply if the event happens on or after the earliest of the following days:
(b) if the employer determination comes into force:
(i) if the employer determination is not revoked—the day after the person’s continuous flexible period for the child ends; and
(ii) if the employer determination is revoked—the day the revocation comes into force;
(c) if the employer determination never comes into force—the day the Secretary becomes required to pay instalments to the person instead of the employer under the employer determination.
Part 3‑3—Payment of instalments by Secretary
Division 1—Guide to this Part
83 Guide to this Part
This Part is about the payment of instalments to a person by the Secretary.
The Secretary is required to pay instalments directly to a person if:
(a) an employer determination is never made for the person; or
(b) the instalment is payable in relation to a day that is a flexible PPL day for a child of the person and that does not fall within the person’s continuous flexible period for the child (if any).
The Secretary is also required to pay instalments directly to a person in certain circumstances where an employer determination is being reviewed or has been revoked, or where a matter has been referred to the Fair Work Ombudsman relating to a failure by an employer to pay an instalment to a person.
In certain circumstances where the Secretary becomes required to pay instalments to a person, the Secretary is also required to pay the person arrears for instalments that had previously become payable, but not been paid, to the person.
Division 2—Payment of instalments by Secretary
84 When the Secretary pays instalments
(1) If the Secretary is required under this section to pay an instalment to a person, the Secretary must do so on the payday for the instalment.
Note: See section 96 for when the Secretary is taken to have complied with this requirement.
Employer determination never made
(2) The Secretary must pay an instalment that is payable to a person if the Secretary, in accordance with section 101, never made an employer determination for the person and the person’s employer.
Instalments relating to certain flexible PPL days
(2A) The Secretary must pay an instalment that is payable to a person to the extent that the instalment is payable in relation to a day that does not fall within the person’s continuous flexible period for the child that is mentioned in an employer notice relating to an employer determination made for the person and the person’s employer.
Note: The person’s employer must pay an instalment to the person to the extent that the instalment is payable in relation to a flexible PPL day for the child that falls within the person’s continuous flexible period for the child (see subsections 72(1) and (1A)).
Employer determination reviewed
(3) The Secretary must pay an instalment that is payable to a person in relation to a child of the person if:
(a) the person’s employer has applied for review under Part 5‑1 or 5‑2, or to a court for judicial review, in relation to the employer determination made for the person and the employer; and
(b) the employer determination has not come into force before the 28th day after the start of the person’s continuous flexible period for the child; and
(c) the instalment relates to an instalment period that:
(i) either includes the day referred to in paragraph (b) or is a later instalment period; and
(ii) starts before the day (the transfer day) on which the employer determination comes into force (if at all).
Note 1: The Secretary must also pay the person instalments payable to the person for earlier instalment periods (see section 85).
Note 2: If the employer determination never comes into force, the Secretary will pay all instalments to the person.
Employer determination revoked
(4) The Secretary must pay an instalment that is payable to a person if:
(a) the Secretary revokes the employer determination for the person and the person’s employer; and
(b) the instalment relates to an instalment period that starts on or after the day (the transfer day) the revocation comes into force.
Note: See sections 85 and 86 for when the Secretary must also pay the person instalments payable to the person for earlier instalment periods.
Referral of matter to Fair Work Ombudsman relating to failure to pay instalment
(5) The Secretary must pay an instalment that is payable to a person in relation to a child of the person if:
(a) the Secretary has referred a matter to the Fair Work Ombudsman relating to a contravention by the employer of section 70, 72 or 74 (which deal with unauthorised deductions and payment of instalments by an employer) in relation to the person; and
(b) the instalment relates to an instalment period that starts on or after the day (the transfer day) after the last flexible PPL day for the child that falls within the person’s continuous flexible period for the child and for which the Secretary has paid the employer a PPL funding amount for the person; and
(c) the Secretary is satisfied that it is appropriate to pay the instalment; and
(d) the Fair Work Ombudsman has not notified the Secretary, before the transfer day, that the employer has not complied with a compliance notice given for the contravention referred to in paragraph (a).
(6) If both subsections (4) and (5) apply in relation to a person, then only the subsection where the transfer day occurs first is taken to apply in relation to the person.
85 Payment of arrears—employer determination reviewed or revoked before coming into force
(1) This section applies if:
(a) the Secretary is required to pay an instalment to a person under subsection 84(3) (which deals with payment of instalments where an employer determination is reviewed); or
(b) both of the following apply:
(i) the Secretary is required to pay an instalment to a person under subsection 84(4) (which deals with payment of instalments where an employer determination is revoked);
(ii) the employer determination made for the person and the person’s employer has never come into force.
(2) The Secretary must pay the person each instalment that is taken to have become payable to the person under section 91 (which deals with the effect of the Secretary or an employer becoming required to pay instalments after the start of a person’s continuous flexible period for a child).
(3) The Secretary must pay the instalments on the payday for the first instalment that the Secretary is required to pay as referred to in paragraph (1)(a) or (b) of this section.
Note: See section 96 for when the Secretary is taken to have complied with this requirement.
86 Payment of arrears—employer determination revoked after coming into force
(1) This section applies if:
(a) the Secretary revokes an employer determination that has come into force for a person and the person’s employer; and
(b) the employer has not, as at the payday for the instalment, paid all or part of an instalment that was payable to the person by the employer; and
(c) either:
(i) the Fair Work Ombudsman has notified the Secretary that the employer has not complied with a compliance notice given for a contravention of section 70, 72 or 74 (which deal with unauthorised deductions and payment of instalments by an employer) that relates to the payment of the instalment; or
(ii) the employer determination was revoked because the Secretary was satisfied that the employer was insolvent.
(2) The Secretary must pay the person the instalment, or the part of the instalment, on the payday for the next instalment that the Secretary is required to pay under subsection 84(4) (which deals with payment of instalments where an employer determination is revoked).
Note 1: If there is no instalment payable for a later instalment period, see section 95.
Note 2: See section 96 for when the Secretary is taken to have complied with this requirement.
(3) Subsection (2) does not require the Secretary to pay the person all or part of an instalment to the extent that the instalment or the part of the instalment has been recovered under section 172 (which deals with debts owing by employers to employees).
(4) To avoid doubt, this section applies whether or not the Secretary is required to pay an instalment to the person under subsection 84(4).
87 Payment of arrears—extending continuous flexible period after review
(1) The Secretary must pay a person each instalment that is taken to have become payable to the person under section 92A.
(2) The Secretary must pay the instalments as soon as practicable after the Secretary becomes required to pay the instalments.
88 Method of payment of instalment payable by Secretary
(1) The Secretary must pay an instalment, or a part of an instalment, that the Secretary is required to pay to a person, to the credit of a bank account nominated and maintained by the person.
(2) The Secretary may direct that the whole or a part of an instalment that the Secretary is required to pay a person is to be paid in a different way from that provided for by subsection (1). If the Secretary gives the direction, the instalment, or the part of the instalment, is to be paid in accordance with the direction.
(3) A direction made under subsection (2) is not a legislative instrument.
89 Giving person record of payment
If the Secretary pays an instalment, or part of an instalment, to or in relation to a person, in particular circumstances, the Secretary must give the person the information prescribed by the PPL rules in relation to instalments paid in those circumstances.
Part 3‑4—General rules relevant to paying instalments
Division 1—Guide to this Part
90 Guide to this Part
This Part contains general rules that are relevant to the payment of instalments to a person, whether by the person’s employer or the Secretary.
Some of those rules deem instalments to have become payable in certain circumstances (such as when a person’s continuous flexible period is extended after review).
Other rules deal with the effect on a person’s instalment periods of changing who is required to pay instalments to the person.
There are also rules that relate to what happens when an instalment cannot be paid on the day specified in this Act.
Finally, this Part deals with the interaction of this Chapter with certain Commonwealth, State and Territory laws.
Division 2—General rules relevant to paying instalments
91 Effect of the Secretary or employer becoming required to pay instalments after start of continuous flexible period
If:
(a) the Secretary or a person’s employer (the payer) becomes required to pay an instalment to the person in relation to a child of the person after the start of the person’s continuous flexible period for the child; and
(b) neither the Secretary nor the employer is otherwise required to pay an earlier instalment to the person; and
(c) one or more instalments would have been payable to the person on the paydays for the instalments if the payer had been required to pay instalments from the start of the person’s continuous flexible period for the child;
then the instalments referred to in paragraph (c) are taken to have become payable on the respective paydays for the instalments.
92A Effect of extending a person’s continuous flexible period after review
(1) If:
(a) a person’s continuous flexible period for a child ends; and
(b) later, a decision in relation to a payability determination for the person is made that has the effect that the person’s continuous flexible period for the child is extended by an additional period of one or more flexible PPL days for the child; and
(c) one or more instalments that relate to instalment periods that overlap with the additional period would have been payable to the person on the paydays for the instalments if:
(i) the person’s continuous flexible period for the child had always been the extended continuous flexible period; and
(ii) the Secretary had been required to pay the instalments; and
(d) the Secretary is not otherwise required to pay the instalments;
then the instalments referred to in paragraph (c) are taken to have become payable on the respective paydays for the instalments.
93 Effect on instalment periods of employer determination coming into force after review
(1) This section applies if:
(a) the Secretary is required to pay an instalment to a person under subsection 84(3) (which deals with payment of instalments where an employer determination is reviewed); and
(b) the employer determination comes into force for the person and the person’s employer on the transfer day referred to in that subsection.
(2) The instalment period for the person for the last instalment payable by the Secretary is taken to end on the day before the transfer day.
(3) The instalment period for the person for the first instalment payable by the employer is taken to start on the transfer day.
Note: Subsection (3) does not affect when the instalment period ends.
94 Effect on instalment periods of revocation etc.
(1) This section applies if:
(a) an employer determination has come into force for a person and the person’s employer; and
(b) the Secretary becomes required to pay an instalment to the person under either of the following subsections for an instalment period that starts on or after the transfer day referred to in that subsection:
(i) subsection 84(4) (which deals with payment of instalments where an employer determination is revoked);
(ii) subsection 84(5) (which deals with payment of instalments where a matter is referred to the Fair Work Ombudsman relating to a failure to pay an instalment).
(2) The instalment period for the person for the last instalment payable by the employer is taken to end on the day before the transfer day.
(3) The instalment period for the person for the first instalment payable by the Secretary is taken to start on the transfer day.
Note: Subsection (3) does not affect when the instalment period ends.
95 Paying instalment on payday for later instalment—no later instalment
If:
(a) the Secretary or a person’s employer (the payer) is required to pay an instalment to the person on the payday for an instalment for a later instalment period; and
(b) that later instalment is not payable by the payer;
the payer must pay the instalment referred to in paragraph (a) on the day that would have been the payday for the later instalment if it had been payable by the payer.
96 Paying instalment on particular day—complying with obligation
The Secretary or a person’s employer (the payer) is taken to have complied with a requirement to pay an instalment on a particular day if the payer pays the instalment:
(a) before that day; or
(b) if the payer cannot pay the instalment on that day—as soon as practicable after that day.
97 Effect of garnishee etc. order
(1) If:
(a) an instalment is being paid, or has been paid, to the credit of an account; and
(b) a court order in the nature of a garnishee order comes into force in relation to the account;
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
Method statement
Step 1. Work out the total amount of the instalments that have been paid to the credit of the account during the 4 week period immediately before the court order came into force.
Step 2. Subtract from the step 1 amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount.
98 Exemption from operation of workers’ compensation and accident compensation laws
(1) The payment of an instalment of parental leave pay is not to be taken into account for the purposes of the following provisions or laws:
(a) a provision of a law of the Commonwealth, a State or a Territory, if the provision deals with:
(i) workers’ compensation; or
(ii) accident compensation;
(b) a law, or a provision of a law, prescribed by the PPL rules, to the extent that the law or provision deals with a matter referred to in paragraph (a).
(2) The PPL rules may provide that subsection (1) does not apply in relation to a prescribed provision of a law of the Commonwealth, a State or a Territory.
99 Period receiving parental leave pay is not a period of paid leave
Despite any law of the Commonwealth, a State or a Territory, or any industrial instrument (however described), a period of unpaid leave is not to be taken to be a period of paid leave just because a person receives instalments of parental leave pay for all or part of that period.
99A Payment of paid parental leave does not affect other employer obligations
An obligation of an employer to pay a person parental leave pay under this Act is in addition to any other obligation the employer may have in relation to the person, however that other obligation might arise (including, for example, under another law of the Commonwealth, a State or a Territory, or an industrial instrument (however described)).
Part 3‑5—Employer determinations
Division 1—Guide to this Part
100 Guide to this Part
This Part is about employer determinations.
Under Division 2, the Secretary must make an employer determination if the Secretary is satisfied that certain conditions have been met. Not all of those conditions need to be satisfied for a person if the employer has made an election under Division 4 that applies to the person and the person consents to the employer paying the instalments.
If the Secretary makes an employer determination for a person and the person’s employer, the employer must either:
(a) give the Secretary certain information to enable the Secretary to pay the employer PPL funding amounts for the person; or
(b) apply for review of the employer determination under Part 5‑1 or 5‑2.
Division 3 is about when an employer determination is in force. It includes rules about revoking employer determinations.
Under Division 4, an employer may elect to pay instalments to one or more employees.
Division 5 provides for the Secretary to give an employer for whom an employer determination has been made notice of certain other decisions under this Act.
Division 2—Making employer determinations
101 Making employer determinations
When Secretary must make employer determination
(1) The Secretary must make a determination under this section (the employer determination) that a person’s employer is to pay the person instalments if the Secretary is satisfied, when making the determination, that:
(a) either:
(i) a payability determination under section 13 or 14 that parental leave pay is payable to the person for a child is in force; or
(ii) an initial eligibility determination under section 26A for the person in relation to a child is in force; and
(b) instalments are likely, if the determination is made under this section, to be payable by the employer to the person for at least 40 consecutive flexible PPL days that are week days; and
(c) the person has, or will have, been employed by the employer for at least 12 months immediately before:
(i) if the person’s claim was made before the birth of the person’s child—the expected date of birth of the child; or
(ii) if the person’s claim was made after the birth of the person’s child—the later of the expected date of birth of the child and the day the child was born; and
(d) the person has a continuous flexible period for the child and is likely to be an Australian‑based employee of the employer during that period; and
(da) there are no other flexible PPL days prior to the person’s continuous flexible period in respect of which:
(i) parental leave pay is payable to the person for the child; or
(ii) the person is initially eligible for parental leave pay for the child; and
(e) the employer has an ABN; and
(f) if paragraphs (c) to (e) are satisfied in relation to more than one employer of the person (other than because of subsection (2))—the person nominated the employer in the claim as the employer who would be required to pay instalments to the person.
Effect of election by employer to pay instalments
(2) Paragraphs (1)(b) and (c) do not apply in relation to a person if:
(a) the person’s employer has made an election under section 109 that applies to the person; and
(b) the person has consented in the claim to the employer paying instalments to the person.
When must employer determination be made
(3) The Secretary must not make an employer determination for a person and the person’s employer unless:
(a) the Secretary is satisfied as referred to in subsection (1); and
(b) the employer determination is made on or before the day on which the payability determination referred to in paragraph (1)(a) is made.
Note: See section 106 for when the Secretary may, despite this subsection, make an employer determination for a person and the person’s employer after the day referred to in paragraph (b).
When employer determination must not be made
(3A) The Secretary must not make an employer determination for a person and the person’s employer if the person is receiving an income support payment.
When Secretary may decide not to make employer determination
(4) Despite subsection (1), the Secretary may decide not to make an employer determination for a person and the person’s employer in relation to a child of the person if the Secretary is satisfied of all or any of the following:
(a) the person’s continuous flexible period for the child has ended;
(b) the person is a special PPL claimant;
(c) the child in relation to whom parental leave pay is payable to the person is stillborn or has died;
(d) both of the following apply:
(i) the person is a PPL claimant or special PPL claimant for parental leave pay for a child;
(ii) another PPL claimant or special PPL claimant for parental leave pay for the same child owes a debt to the Commonwealth in relation to amounts paid to, or in relation to, that other PPL claimant or special PPL claimant by way of instalments for that child;
(e) the employer is not a fit and proper person.
Matters relevant to whether employer is a fit and proper person
(5) The Secretary may take into account the following matters in determining whether an employer is a fit and proper person:
(a) whether the employer is insolvent;
(b) whether the employer has, or is alleged to have, contravened a civil penalty provision of this Act;
(c) whether a matter relating to a contravention of section 70 or Part 3‑2 (which deal with unauthorised deductions and payment of instalments by an employer) by the employer has been referred to the Fair Work Ombudsman under section 143;
(d) subject to Part VIIC of the Crimes Act 1914, whether the employer has, or is alleged to have, contravened a provision of an industrial law (within the meaning of the Fair Work Act);
(e) subject to Part VIIC of the Crimes Act 1914, whether the employer has been convicted of an offence against this Act, or a law of the Commonwealth, a State or a Territory that involves:
(i) fraud or dishonesty; or
(ii) the misapplication of money; or
(iii) the management of the affairs of a body (whether or not incorporated);
(ea) whether the employer has, or is alleged to have, contravened a provision of the Employment Act 1988 (Norfolk Island);
(f) any other matter the Secretary considers relevant.
Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
Secretary may assume state of affairs will not change
(6) In deciding whether to make a determination under this section, the Secretary may act on the assumption that the state of affairs known to the Secretary when making the determination will remain unchanged.
102 Secretary must give notice of employer determination
(1) If the Secretary makes an employer determination for a person and the person’s employer in relation to a child of the person, the Secretary must give the employer and the person a written notice advising them that the determination has been made.
Notice given to person
(2) The notice given to the person must contain the name of the employer and any information prescribed by the PPL rules.
Notice given to employer
(3) The notice given to the employer must contain the following information:
(a) the name of the person;
(b) whether the Secretary has made a payability determination under section 13 or 14 that parental leave pay is payable to the person for the child;
(c) the person’s continuous flexible period for the child;
(e) in any case—any information prescribed by the PPL rules.
(4) The notice given to the employer must also be dated. The date of the notice must be the date the preparation of the notice was completed.
Decision not to make employer determination—notice to person
(5) If the Secretary decides not to make an employer determination for a person, the Secretary must give the person a written notice advising the person of that decision. The notice must contain any information prescribed by the PPL rules.
103 Employer must respond to notice of employer determination
Within 14 days after the date of the notice given under section 102, the employer must do one of the following:
(a) give the Secretary a written notice (the acceptance notice) that complies with section 104;
(b) apply for a review of the employer determination under Part 5‑1 or 5‑2.
Note: This section is a civil penalty provision (see section 146).
104 Requirements for an acceptance notice
Acceptance of obligation to pay instalments
(1) The acceptance notice must contain a declaration to the effect that the employer accepts the employer’s obligation to pay instalments to the person.
Bank account information
(2) The acceptance notice must contain the following information (bank account information) about an account held and maintained by the employer with a financial institution into which PPL funding amounts can be paid:
(a) the account number;
(b) the BSB number of the account;
(c) the name in which the account is held;
(d) the name of the financial institution.
Pay cycle information
(3) The acceptance notice must contain the following information (pay cycle information) for the person:
(a) the person’s instalment period;
(b) the first day of the first instalment period for the person that overlaps with the person’s continuous flexible period for the child;
(c) the payday and the payroll cut‑off for an instalment that would be payable for the first instalment period for the person.
PPL rules may specify additional information
(4) The acceptance notice must also contain any information prescribed by the PPL rules.
Employer may confirm bank account information in election
(5) Subsection (2) does not apply if:
(a) the person’s employer has made an election under section 109 that applies to the person; and
(b) the acceptance notice contains a declaration to the effect that the employer’s bank account information given in the notice under subsection 109(1) is correct in relation to the person.
105 Giving bank account and pay cycle information etc. after review
(1) This section applies if:
(a) an employer applies for review under Part 5‑1 or 5‑2, or to a court for judicial review, in relation to an employer determination made for a person and the employer; and
(b) either of the following events happens:
(i) the employer withdraws the application;
(ii) the employer determination has not been set aside or quashed and is no longer subject to review; and
(c) the person’s continuous flexible period for the child has not ended.
(2) The Secretary must, as soon as practicable after becoming aware that the event referred to in paragraph (1)(b) has happened, give the employer a written notice requiring the employer to give the Secretary a written notice containing the following information:
(a) the employer’s bank account information;
(b) the pay cycle information for the person;
(c) any information prescribed by the PPL rules.
(2A) The notice given to the employer must also be dated. The date of the notice must be the date the preparation of the notice was completed.
(3) The employer must give the notice to the Secretary within 14 days of the date of the notice given by the Secretary.
Note: This subsection is a civil penalty provision (see section 146).
106 Effect of decision on review that parental leave pay is payable
The Secretary may, despite subsection 101(3), make an employer determination for a person and the person’s employer, if:
(a) a decision is made that has the effect that parental leave pay is not payable to the person (whether or not the decision is a payability determination to that effect); and
(b) a later decision is made that has the effect that a payability determination that parental leave pay is payable to the person comes into force; and
(c) the Secretary is satisfied, when making the employer determination, of the matters referred to in the applicable paragraphs of subsection 101(1) in relation to the person and the employer.
Division 3—When an employer determination is in force
107 When an employer determination comes into force
(1) An employer determination comes into force for a person and the person’s employer as set out in subsection (2) or (3). Otherwise, the employer determination does not come into force at all.
Employer gives acceptance notice
(2) If the employer gives the Secretary an acceptance notice for the person in accordance with section 103 or a compliance notice given under section 157, the employer determination comes into force on the day the Secretary receives the acceptance notice.
Employer gives bank account and pay cycle information after review of employer determination
(3) If:
(a) the employer gives a notice to the Secretary in accordance with section 105 (which deals with giving bank account and pay cycle information etc. after a review) in relation to the person; and
(b) the person’s continuous flexible period for the child has not ended by the day the Secretary receives the notice;
the employer determination comes into force on the day the Secretary receives the notice.
(4) An employer determination stays in force unless it is revoked.
108 Revocation of an employer determination
When Secretary is required to revoke employer determination
(1) The Secretary must revoke an employer determination made for a person and the person’s employer if the Secretary is satisfied of a matter referred to in column 1 of an item in the following table. The revocation comes into force on the day referred to in column 2 of that item:
Revocation of employer determination |
Item | Column 1 Matter of which Secretary must be satisfied | Column 2 Day revocation comes into force |
1 | A condition for making the employer determination was not satisfied when the determination was made. | The day of the revocation. |
2 | The employer has not given an acceptance notice for the person as required by a compliance notice given for a contravention of section 103. | The day of the revocation. |
2A | The person is receiving an income support payment. | The day of the revocation. |
4 | The person has ceased to be employed by the employer. | The day the person ceased to be employed by the employer. |
5 | The employer is insolvent. | The day the employer became insolvent. |
6 | The Fair Work Ombudsman has notified the Secretary that the employer has not complied with a compliance notice given for a contravention of section 70, 72 or 74 (which deal with unauthorised deductions and payment of instalments by an employer) that relates to the person. | The day of the revocation. |
(1A) The Secretary must revoke an employer determination made for a person and the person’s employer in relation to a child of the person if the Secretary is satisfied that a decision (whether or not the decision is a payability determination) has been made that has the effect that parental leave pay is not payable to the person for one or more flexible PPL days for the child that fall within the person’s continuous flexible period for the child that is mentioned in the employer notice relating to the employer determination.
(1C) The Secretary must revoke an employer determination made for a person and the person’s employer in relation to a child of the person if the Secretary is satisfied that:
(b) a payability determination under section 13 or 14 that paid parental leave is payable to the person for one or more flexible PPL days for the child comes into force; and
(c) those flexible PPL days fall within the person’s continuous flexible period for the child that is mentioned in the employer notice relating to the employer determination; and
(d) those flexible PPL days are not week days.
(1D) If the Secretary revokes an employer determination under subsection (1A) or (1C), the revocation comes into force on the day specified by the Secretary.
When Secretary may revoke employer determination
(2) The Secretary may revoke an employer determination made for a person and the person’s employer if the Secretary is satisfied of any of the following:
(a) the employer is not a fit and proper person;
(b) the child in relation to whom parental leave pay is payable to the person is stillborn or has died;
(c) for any other reason, it is appropriate to revoke the employer determination.
(3) In determining whether the employer is not a fit and proper person for the purposes of paragraph (2)(a), the Secretary may take into account the matters referred to in paragraphs 101(5)(a) to (f).
(4) If the Secretary revokes the employer determination under subsection (2), the revocation comes into force on the day of the revocation.
Notice of revocation to person and employer
(5) If the Secretary revokes an employer determination for a person and the person’s employer, the Secretary must give them a written notice advising them of that decision. The notice must contain any information prescribed by the PPL rules.
Notice of revocation to AAT
(6) If, when the Secretary revokes an employer determination:
(a) an application has been made for AAT first review in relation to the employer determination; and
(b) the AAT has not determined the review;
the Secretary must give written notice of the revocation to the Registrar of the AAT.
Division 4—Election by employer to pay instalments
109 Election by employer to pay instalments
(1) An employer may elect to pay instalments to one or more employees of the employer by giving the Secretary a notice in accordance with subsections (2) and (3).
Requirements for elections
(2) The notice must:
(a) be in the approved form; and
(b) contain the employer’s bank account information.
(3) An election under subsection (1) must be expressed to apply in relation to:
(a) one or more specified employees of the employer; or
(b) one or more specified classes of employee of the employer; or
(c) all employees of the employer.
110 Employer may withdraw an election
(1) The employer may, at any time, withdraw an election by notice given to the Secretary in the form approved by the Secretary.
(2) However, a withdrawal does not affect an employer determination that has already been made.
111 Secretary may cancel an election
(1) The Secretary may cancel an election if the Secretary is satisfied that the employer is not a fit and proper person, and for this purpose may take into account the matters referred to in paragraphs 101(5)(a) to (f).
(2) However, a cancellation does not affect an employer determination that has already been made.
Note: The Secretary may revoke an employer determination that has already been made for the employer and a person under subsection 108(2).
(3) If the Secretary cancels an election, the Secretary must give the employer a written notice advising the employer of that decision. The notice must contain any information prescribed by the PPL rules.
112 When an election is in force
An election remains in force from the time it is received by the Secretary until one of the following occurs:
(a) if paragraph 109(3)(a) applies—the specified employee’s continuous flexible period for the child ends;
(b) the Secretary receives notice under section 110 that the election has been withdrawn;
(c) the election is cancelled under section 111.
Division 5—Notice of decisions
113 Notice of outcome of a payability determination
(1) This section applies if:
(a) the Secretary has made an employer determination for a person and the person’s employer in relation to a child of the person; and
(b) after the employer determination was made, the Secretary makes a payability determination under section 13 or 14 for the person in relation to the child.
(2) The Secretary must give the employer a written notice stating:
(a) whether parental leave pay is payable to the person; and
(b) if parental leave pay is payable—the person’s continuous flexible period for the child; and
(c) in any case—any information prescribed by the PPL rules.
Note: If the Secretary determines that parental leave pay is not payable to the person, the Secretary must revoke the employer determination (see subsection 108(1A)).
(3) However, the Secretary need not give the notice if the Secretary had previously revoked the employer determination.
114 Notice of varying, setting aside etc. payability determination
(1) This section applies if:
(a) the Secretary has made an employer determination for a person and the person’s employer in relation to a child of the person; and
(b) a decision is made to vary, set aside or revoke a payability determination (the original payability determination) that parental leave pay is payable to the person for the child.
(2) The Secretary must give the employer a written notice stating:
(a) the effect of the decision referred to in paragraph (1)(b); and
(ba) if the effect of the decision is that the person has a different continuous flexible period for the child to that mentioned in an earlier employer notice relating to the employer determination—that different continuous flexible period; and
(c) in any case—any other information prescribed by the PPL rules.
(3) However, the Secretary need not give the notice if the Secretary had previously revoked the employer determination.
115 Notice of other decisions
The PPL rules may provide for the Secretary, in particular circumstances, to give a person a notice containing the information prescribed by the PPL rules in relation to those circumstances, if this Chapter does not otherwise provide for the Secretary to give the person a notice in those circumstances.
Chapter 3A—Paid Parental Leave Superannuation Contributions
Part 1—Payability and amount of PPL superannuation contribution
Division 1—Guide to this Part
115A Guide to this Part
A person is eligible for a PPL superannuation contribution for an income year if the Secretary pays one or more PPL funding amounts or instalments for the person during the income year.
The Commissioner of Taxation works out the amount of the PPL superannuation contribution on the basis of the sum of all PPL funding amounts and instalments paid for the person during the income year multiplied by the SG charge percentage. An interest component is then added to the amount of the contribution to account for the PPL superannuation contribution being paid at a later time than the PPL funding amounts or instalments.
Division 2—Payability and amount of PPL superannuation contribution
115B Person for whom PPL superannuation contribution payable
(1) A PPL superannuation contribution is payable under this section for a person for an income year if either or both of the following apply:
(a) a PPL funding amount relating to the person is paid under section 75 in the income year by the Secretary to an employer of the person;
(b) an instalment is both:
(i) payable to the person under section 63; and
(ii) paid under section 84 in the income year by the Secretary to the person.
(2) For the purposes of paragraph (1)(a), disregard any amount of a PPL funding amount that is a debt due to the Commonwealth under subsection 168(2).
115C Amount of PPL superannuation contribution
(1) The amount of a PPL superannuation contribution payable under section 115B for a person for an income year is the sum of the following:
(a) the base contribution for the person for the year multiplied by the SG charge percentage for that year;
(b) the nominal interest rate amount for the person for the year.
(2) The base contribution for a person for an income year is the sum of the following:
(a) the sum of all PPL funding amounts relating to the person paid under section 75 in the income year by the Secretary to an employer of the person;
(b) the sum of all instalments (as increased (if any) under subsection (3)) to which both of the following apply:
(i) the instalment is payable to the person under section 63;
(ii) the instalment is paid under section 84 in the income year by the Secretary to the person.
(3) If the Secretary has made one or more deductions under any of sections 67 to 69B from an instalment referred to in paragraph (2)(b), the instalment is taken, for the purposes of that paragraph, to be increased by the sum of those deductions.
(4) The SG charge percentage for an income year means the charge percentage for the year, worked out using the table in subsection 19(2) of the Superannuation Guarantee (Administration) Act 1992.
(5) The nominal interest rate amount for a person for an income year is the amount for the person referred to in paragraph (1)(a) multiplied by the amount worked out in accordance with the method prescribed by the PPL rules.
(6) For the purposes of paragraph (2)(a), disregard any amount of a PPL funding amount that is a debt due to the Commonwealth under subsection 168(2).
115D Commissioner’s determination
(1) The Commissioner must determine the amount of a PPL superannuation contribution that is payable for a person for an income year under section 115C.
(2) The PPL rules may prescribe the time within which determinations under this section are to be made.
Part 2—Payment of PPL superannuation contributions
Division 1—Guide to this Part
115E Guide to this Part
The Commissioner of Taxation generally pays a PPL superannuation contribution (and any underpaid amounts) for a person to the trustee of a complying superannuation fund for crediting to an account of the person within that fund. Interest is paid on underpaid amounts in certain circumstances.
The trustee of the fund must return a PPL superannuation contribution or underpaid amount that cannot be credited to an account of the person.
If an amount of a PPL superannuation contribution is overpaid the Commissioner of Taxation may recover the overpaid amount. General interest charge is payable in some circumstances in relation to overpaid amounts.
Division 2—How payments are made
115F Commissioner to determine where PPL superannuation contribution is to be directed
(1) If the Commissioner makes a determination of the amount of a PPL superannuation contribution under section 115D for a person for an income year, the Commissioner must determine whether the PPL superannuation contribution is to be paid:
(a) to the trustee of a complying superannuation fund for crediting to an account of the person within that fund; or
(b) to the provider of an RSA that the person holds for crediting to the RSA; or
(c) to the person’s legal personal representative; or
(d) into an account of the person in the Superannuation Holding Accounts Special Account.
(2) If the Commissioner makes a determination under paragraph (1)(a) or (b), the Commissioner must also determine which particular account the PPL superannuation contribution is to be paid into.
(3) The Commissioner must make determinations under subsections (1) and (2) in accordance with any requirements prescribed by the PPL rules.
(4) The Commissioner may revoke a determination made under this section if the Commissioner is satisfied that:
(a) payment of the PPL superannuation contribution cannot be effected in accordance with the determination; or
(b) it is otherwise appropriate in the circumstances to revoke the determination.
(5) The PPL rules may prescribe the time within which determinations under this section are to be made.
115G Return of PPL superannuation contribution that cannot be credited to account
(1) If:
(a) a PPL superannuation contribution for a person for an income year is paid:
(i) to the trustee of a complying superannuation fund for crediting to an account of the person within that fund; or
(ii) to the provider of an RSA that the person holds for crediting to the RSA; and
(b) the trustee or the provider has not credited the PPL superannuation contribution to an account of that kind by the end of the 28th day after the day on which the contribution was paid to the trustee or the provider;
the trustee or the provider:
(c) is liable to repay the PPL superannuation contribution to the Commonwealth; and
(d) must give the Commissioner a statement, in the approved form (within the meaning of section 388‑50 in Schedule 1 to the Taxation Administration Act 1953), in relation to the PPL superannuation contribution at the time when the contribution is repaid.
Note: Section 115Q provides for the imposition of general interest charge if the contribution is not repaid within a certain period.
(2) The Commissioner may recover from the trustee or provider the amount the trustee or provider is liable to repay under subsection (1) as a debt due to the Commonwealth.
Offence
(3) The trustee or provider commits an offence if the trustee or provider fails to give the Commissioner a statement, in the approved form (within the meaning of section 388‑50 in Schedule 1 to the Taxation Administration Act 1953), in relation to the PPL superannuation contribution at the time when the contribution is repaid.
Penalty: 50 penalty units.
(4) An offence against subsection (3) is an offence of strict liability.
115H Payment of PPL superannuation contribution
(1) The Commissioner must, in accordance with determinations made under sections 115D and 115F, pay a PPL superannuation contribution payable for a person for an income year on or before the payment date for the PPL superannuation contribution.
(2) The payment date for a PPL superannuation contribution is to be worked out in accordance with the PPL rules.
(3) The payment date for the PPL superannuation contribution may be a day in a later income year.
115J Commissioner to give payment information
(1) If the Commissioner pays a PPL superannuation contribution for a person for an income year, the Commissioner must give written notice to the person that includes:
(a) when and to whom the contribution was paid; and
(b) the amount of the contribution; and
(c) how the person may apply for review of the Commissioner’s decision about the amount of the contribution.
Note: The person will also be given details of the contribution:
(a) by the superannuation provider under the Corporations Regulations 2001 if the contribution is paid into a complying superannuation fund or an RSA account; and
(b) by the Commissioner under the Small Superannuation Accounts Act 1995 if the contribution is paid into an account in the Superannuation Holding Accounts Special Account.
(2) If the Commissioner pays a PPL superannuation contribution for a person for an income year to the person’s legal personal representative, the notice under subsection (1) must be given to the legal personal representative.
(3) If the Commissioner pays a PPL superannuation contribution for a person for an income year to:
(a) the trustee of a complying superannuation fund for crediting to an account of the person within that fund; or
(b) the provider of an RSA that the person holds for crediting to the RSA;
the Commissioner must give the trustee or provider the information prescribed by the PPL rules in relation to the contribution at the time the contribution is paid.
Division 3—Underpayments
115K Underpayment determinations
(1) This section applies if the Commissioner:
(a) pays an amount by way of a PPL superannuation contribution for a person for an income year; and
(b) is satisfied that the amount paid is less than the correct amount of the PPL superannuation contribution.
(2) The amount by which the correct amount exceeds the amount paid is the underpaid amount.
(3) The Commissioner must determine that the underpaid amount is to be paid for the person for the income year.
(4) If the Commissioner makes a determination under subsection (3), the Commissioner must determine whether the underpaid amount is to be paid:
(a) to the trustee of a complying superannuation fund for crediting to an account of the person within that fund; or
(b) to the provider of an RSA that the person holds for crediting to the RSA; or
(c) to the person’s legal personal representative; or
(d) into an account of the person in the Superannuation Holding Accounts Special Account.
(5) If the Commissioner makes a determination under paragraph (4)(a) or (b), the Commissioner must also determine which particular account the underpaid amount is to be paid into.
(6) The Commissioner must make determinations under subsections (4) and (5) in accordance with any requirements prescribed by the PPL rules.
(7) The Commissioner may revoke a determination made under this section if the Commissioner is satisfied that:
(a) payment of the underpaid amount cannot be effected in accordance with the determination; or
(b) it is otherwise appropriate in the circumstances to revoke the determination.
(8) The PPL rules may prescribe the time within which determinations under this section are to be made.
(9) The Commissioner must, in accordance with the determinations made under this section, pay the underpaid amount on or before the payment date for the underpaid amount.
(10) If the Commissioner pays an underpaid amount for a person for an income year, the Commissioner must give written notice to the person that includes:
(a) when and to whom the underpaid amount was paid; and
(b) the amount of the underpaid amount; and
(c) how the person may apply for review of the Commissioner’s decision about the amount of underpaid amount.
115L Return of underpaid amount that cannot be credited to account
(1) If:
(a) the underpaid amount for a person for an income year is paid:
(i) to the trustee of a complying superannuation fund for crediting to an account of the person within that fund; or
(ii) to the provider of an RSA that the person holds for crediting to the RSA; and
(b) the trustee or the provider has not credited the underpaid amount to an account of that kind by the end of the 28th day after the day on which the underpaid amount was paid to the trustee or the provider;
the trustee or the provider:
(c) is liable to repay the underpaid amount to the Commonwealth; and
(d) must give the Commissioner a statement, in the approved form (within the meaning of section 388‑50 in Schedule 1 to the Taxation Administration Act 1953), in relation to the underpaid amount at the time when the underpaid amount is repaid.
Note: Section 115Q provides for the imposition of general interest charge if the underpaid amount is not repaid within a certain period.
(2) The Commissioner may recover from the trustee or provider the amount the trustee or provider is liable to repay under subsection (1) as a debt due to the Commonwealth.
Offence
(3) The trustee or provider commits an offence if the trustee or provider fails to give the Commissioner a statement, in the approved form (within the meaning of section 388‑50 in Schedule 1 to the Taxation Administration Act 1953), in relation to the underpaid amount at the time when the underpaid amount is repaid.
Penalty: 50 penalty units.
(4) An offence against subsection (3) is an offence of strict liability.
115M Interest amount if underpaid amount paid late in certain circumstances
(1) The amount of the PPL superannuation contribution for a person for an income year is increased by the amount of interest worked out under subsection (3) if the Commissioner does not pay the underpaid amount in full on or before the payment date for the underpaid amount.
(2) The payment date for the underpaid amount is to be worked out in accordance with the PPL rules.
(3) The interest is to be calculated:
(a) on the underpaid amount that remains unpaid on the payment date for the underpaid amount; and
(b) for the period from the payment date for the underpaid amount (see subsection (2)) until the day on which the underpaid amount is paid in full; and
(c) on a daily basis; and
(d) at the base interest rate for the day on which the interest is calculated.
115N Interest amount if underpaid amount due to administrative error
(1) This section applies if:
(a) the Commissioner makes a determination under section 115K that an underpaid amount is to be paid for a person for an income year; and
(b) the determination is made on the basis that a particular amount is the correct amount of the PPL superannuation contribution payable for the person for the income year; and
(c) the determination is necessary to correct an administrative error.
(2) The payment shortfall is the difference between:
(a) the amount referred to in paragraph (1)(b); and
(b) the sum of the amounts that have already been paid by way of a PPL superannuation contribution for the person for the income year before the determination under section 115K is made.
(3) The amount of the PPL superannuation contribution for the person for the income year is increased by the amount of interest worked out under subsection (4).
(4) The interest is to be calculated:
(a) on the amount of the payment shortfall; and
(b) for the period from the payment date for the PPL superannuation contribution until the payment date for the underpaid amount; and
(c) on a daily basis; and
(d) at the base interest rate for the day on which the interest is calculated.
(5) The PPL rules:
(a) may provide that an error of a kind specified in the PPL rules is an administrative error for the purposes of this section; and
(b) may provide that an error of a kind specified in the PPL rules is not an administrative error for the purposes of this section.
Division 4—Overpayments
115P Recovery of overpayment of PPL superannuation contribution
(1) This section applies if:
(a) the Commissioner pays an amount by way of a PPL superannuation contribution for a person for an income year; and
(b) either:
(i) the PPL superannuation contribution was not payable for the person for the income year; or
(ii) the amount paid is more than the correct amount of the PPL superannuation contribution.
(2) The amount overpaid is:
(a) the whole of the amount referred to in paragraph (1)(a) if the PPL superannuation contribution was not payable for the person for the income year; or
(b) the amount by which the amount paid exceeds the correct amount if the amount paid is more than the correct amount of the PPL superannuation contribution.
(3) The Commissioner may take action to recover the amount overpaid under one or more of the items in the following table but may only take action under an item if the conditions (if any) specified for that item are satisfied:
Methods for recovering amount overpaid |
Item | Action the Commissioner may take to recover amount overpaid | Conditions to be satisfied |
1 | The Commissioner may deduct the whole or a part of the amount overpaid from any PPL superannuation contribution payable for the person. | |
2 | The Commissioner may debit an account of the person in the Superannuation Holding Accounts Special Account with the whole or a part of the amount overpaid. | The account must include one or more PPL superannuation contributions for the person. The amount debited must not exceed the amount of those PPL superannuation contributions. |
3 | The Commissioner may recover the whole or a part of the amount overpaid from the person’s legal personal representative as a debt due by the representative to the Commonwealth. | The PPL superannuation contribution must have been paid by the Commissioner to the representative. The Commissioner must give the representative written notice, as prescribed by the PPL rules, of the proposed recovery (including the amount to be recovered). At least 28 days must have elapsed since the notice was given. The amount recovered must not exceed the amount specified in the notice. |
4 | The Commissioner may recover the whole or a part of the amount overpaid from a superannuation provider to whom: (a) the Commissioner paid the PPL superannuation contribution; or (b) another superannuation provider transferred the PPL superannuation contribution; as a debt due by the superannuation provider to the Commonwealth. | The superannuation provider must hold one or more PPL superannuation contributions for the person. The amount recovered must not exceed the amount of those PPL superannuation contributions. The Commissioner must give the superannuation provider written notice, as prescribed by the PPL rules, of the proposed recovery (including the amount to be recovered). At least 28 days must have elapsed since the notice was given. The amount recovered must not exceed the amount specified in the notice. |
Note: Section 115Q provides for the imposition of general interest charge if an amount that the person must pay under a notice given to the person under item 3 or 4 of the above table is not repaid within a certain period.
(4) If:
(a) the Commissioner gives a superannuation provider a notice under item 4 of the table in subsection (3) in relation to an amount overpaid for a person; and
(b) the provider holds one or more PPL superannuation contributions for the person at the time when the Commissioner gives the provider the notice;
the Commissioner may recover from the provider under that item whether or not the provider continues to hold the contribution or contributions after that time.
(5) The Commissioner may revoke a notice given under item 3 or 4 of the table in subsection (3) if the Commissioner is satisfied that it is appropriate in the circumstances to do so.
(6) The total of the amounts deducted, debited or recovered under subsection (3) in relation to an overpayment must not exceed the amount overpaid.
(7) If the Commissioner makes:
(a) a deduction under item 1 of the table in subsection (3); or
(b) a debit under item 2 or a recovery under item 4 of the table;
in relation to a PPL superannuation contribution for a person, the Commissioner must give the person the information prescribed by the PPL rules in relation to the deduction or debit within 28 days after the deduction or debit is made.
Division 5—General interest charge
115Q When general interest charge payable
(1A) If:
(a) a person is liable under subsection 115G(1) or 115L(1) to repay an amount; and
(b) the whole or a part of the amount remains unpaid after the time by which the amount is due to be paid;
the person is liable to pay general interest charge on the unpaid amount.
(1) If:
(a) the Commissioner gives a person notice under item 3 or 4 of the table in subsection 115P(3); and
(b) an amount that the person must pay under the notice remains unpaid after the time by which it is due to be paid;
the person is liable to pay general interest charge on the unpaid amount.
(2) A person who is liable under this section to pay general interest charge on an unpaid amount is liable to pay the charge for each day in the period that:
(a) started at the beginning of the day by which the unpaid amount was due to be paid; and
(b) finishes at the end of the last day at the end of which any of the following remains unpaid:
(i) the unpaid amount;
(ii) general interest charge on any of the unpaid amount.
(3) For the purposes of this section:
(a) an amount that a person becomes liable under subsection 115G(1) or 115L(1) to repay is due to be paid 7 days after the day on which the person first becomes liable to repay the amount; and
(b) an amount payable under a notice given under item 3 or 4 of the table in subsection 115P(3) is due to be paid 28 days after the day on which the notice is given.
Part 3—Enforcement
Division 1—Guide to this Part
115R Guide to this Part
Superannuation providers are required to keep and retain records in relation to transactions and acts engaged in, or required to be engaged in, under this Chapter.
Infringement notices can be given to superannuation providers for failing to give statements relating to returned PPL superannuation contributions or underpaid amounts.
Division 2—Record keeping
115S Records to be kept and retained by superannuation provider
Superannuation provider to keep records
(1) A superannuation provider commits an offence if the provider fails to keep records that record and explain all transactions and other acts the provider engages in, or is required to engage in, under this Chapter or the PPL rules made for the purposes of this Chapter.
Penalty: 30 penalty units.
How records to be kept
(2) The superannuation provider commits an offence if the records are not either:
(a) kept in writing in the English language; or
(b) kept so as to enable the records to be readily accessible and convertible into writing in the English language.
Penalty: 30 penalty units.
Period for retention of records
(3) A superannuation provider commits an offence if the provider fails to retain any records kept or obtained under or for the purposes of this Chapter until the later of:
(a) the end of 5 years after they were prepared or obtained; and
(b) the completion of the transactions or acts to which those records relate.
Penalty: 30 penalty units.
When records need not be kept
(4) Subsections (2) and (3) do not apply if:
(a) the Commissioner has notified the superannuation provider that the retention of the records is not required; or
(b) the superannuation provider is a company that has gone into liquidation and been finally dissolved.
Note: In a prosecution for an offence against subsection (2) or (3), the defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).
Division 3—Infringement notices
115T When an infringement notice can be served
(1) Subject to subsection (2), the Commissioner may cause an infringement notice to be served on a superannuation provider in accordance with this Part if the Commissioner has reasonable grounds to believe that the superannuation provider has committed an offence against:
(a) subsection 115G(3); or
(b) subsection 115L(3).
(2) An infringement notice must not relate to more than one offence unless:
(a) the offences are:
(i) an offence constituted by refusing or failing to comply with a requirement before a specified time or within a specified period; and
(ii) one or more daily offences constituted by refusing or failing to comply with the requirement after that time or period; or
(b) the offences are 2 or more daily offences constituted by refusing or failing to comply with the same requirement after the time before which, or the end of the period within which, the requirement was to be complied with.
Note: For daily offences, see section 4K of the Crimes Act 1914.
(3) An infringement notice does not have any effect unless it is served within one year after the day on which the offence or the earlier or earliest of the offences is alleged to have been committed.
115U Matters to be included in an infringement notice
(1) An infringement notice must:
(a) state the name of the person on whom it is to be served; and
(b) state that it is being served on behalf of the Commissioner; and
(c) state:
(i) the nature of the alleged offence or offences; and
(ii) the time (if known) and date on which, and the place at which, the offence or the earlier or earliest of the offences is alleged to have been committed; and
(iii) the maximum penalty that a court could impose for the alleged offence or offences; and
(d) specify a penalty that is payable under the notice in respect of the alleged offence or offences; and
(e) state that, if the person does not wish the matter to be dealt with by a court, the person may pay to the Commissioner the amount of the penalty specified in the notice within 28 days after the date of service of the notice; and
(f) state that the person may make written representations to the Commissioner seeking the withdrawal of the notice.
Note: The Commissioner has power to extend periods stated in notices under paragraph (1)(e) (see section 115Z).
(2) An infringement notice may contain any other matters that the Commissioner considers necessary.
(3) The penalty to be specified in an infringement notice under paragraph (1)(d) is 20% of the maximum amount of the fine or fines that a court could impose for the offence or offences.
115V Withdrawal of infringement notice
(1) A person on whom an infringement notice has been served may make written representations to the Commissioner seeking the withdrawal of the notice.
(2) The Commissioner may withdraw an infringement notice served on a person (whether or not the person has made representations seeking the withdrawal) by causing written notice of the withdrawal to be served on the person within the period within which the penalty specified in the infringement notice is required to be paid.
(3) The matters to which the Commissioner may have regard in deciding whether or not to withdraw an infringement notice include, but are not limited to, the following:
(a) whether the person has previously been convicted of an offence for a contravention of this Act;
(b) the circumstances in which the offence or offences specified in the notice are alleged to have been committed;
(c) whether the person has previously been served with an infringement notice in respect of which the person paid the penalty specified in the notice;
(d) any written representations made by the person.
(4) If:
(a) the person pays the penalty specified in the infringement notice within the period specified in paragraph 115U(1)(e); and
(b) the notice is withdrawn after the person pays the penalty;
the Commissioner must refund to the person an amount equal to the amount paid.
115W What happens if penalty is paid
(1) This section applies if:
(a) an infringement notice is served on a person; and
(b) the person pays the penalty specified in the notice before the end of the period referred to in paragraph 115U(1)(e); and
(c) the infringement notice is not withdrawn.
(2) Any liability of the person for the offence or offences specified in the notice, and for any other offence or offences constituted by the same omission, is taken to be discharged.
(3) Further proceedings cannot be taken against the person for the offence or offences specified in the notice and proceedings cannot be taken against the person for any other offence or offences constituted by the same omission.
(4) The person is not regarded as having been convicted of the offence or offences specified in the notice.
115X More than one infringement notice may not be served for the same offence
This Division does not permit the service of more than one infringement notice on a person for the same offence or offences.
115Y Infringement notice not required to be served
This Division does not:
(a) require an infringement notice to be served on a person in relation to an offence; or
(b) affect the liability of a person to be prosecuted for an offence if:
(i) an infringement notice is not served on the person in relation to the offence or in relation to any other offence constituted by the same omission; or
(ii) an infringement notice served on the person in relation to the offence or in relation to any other offence constituted by the same omission has been withdrawn; or
(c) affect the liability of a person to be prosecuted for an offence if the person does not comply with an infringement notice served on the person in relation to the offence or in relation to any other offence constituted by the same omission; or
(d) limit the amount of the penalty that may be imposed by a court on a person convicted of an offence.
115Z Commissioner may extend period for payment of penalty
(1) The Commissioner may, by writing, extend, in relation to a particular person, the period referred to in paragraph 115U(1)(e).
(2) The power of the Commissioner under subsection (1) to extend the period may be exercised before or after the end of the period.
(3) If the Commissioner extends a period under subsection (1), a reference in this Division, or in a notice or other instrument under this Division, to the period is taken, in relation to the person, to be a reference to the period as so extended.
Part 4—Administration
Division 1—Guide to this Part
115ZA Guide to this Part
This Part contains provisions about the Commissioner of Taxation’s administration of this Chapter.
This Part also contains provisions about review of decisions by the Commissioner of Taxation under this Chapter.
Division 2—Administration of this Chapter
115ZB Commissioner to have general administration of this Chapter
The Commissioner has the general administration of this Chapter.
Note: An effect of this provision is that people who acquire information under this Chapter are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
115ZC Decisions to be in writing
(1) A decision of the Commissioner under this Chapter or the PPL rules made for the purposes of this Chapter must be in writing.
(2) Such a decision is taken to be in writing if it is made, or recorded, by means of a computer.
115ZD Commissioner may arrange for use of computer programs to make decisions
(1) The Commissioner may arrange for the use, under the Commissioner’s control, of computer programs for any purposes for which the Commissioner may make decisions under this Chapter or the PPL rules made for the purposes of this Chapter.
(2) A decision made by the operation of a computer program under an arrangement made under subsection (1) is taken to be a decision made by the Commissioner.
115ZE Tax file numbers
The Commissioner may use for the purposes of this Chapter, or the PPL rules made for the purposes of this Chapter, a tax file number that has been provided for any other purpose under this Act or a law relating to taxation or superannuation.
Division 3—Review of decisions
115ZF Review of decisions
(1) A person affected by a decision (the original decision) made by the Commissioner under Part 1, 2 or 3 (including a decision not to make a determination under section 115D, 115F or 115K) may apply to the Commissioner for review of the decision.
(2) If the person does so, the Commissioner must either:
(a) review the original decision and decide to:
(i) affirm it; or
(ii) vary it; or
(iii) set it aside and substitute a new decision; or
(b) arrange for an authorised review officer to do so.
(3) In making arrangements for a review under subsection (2), the Commissioner must have regard to the need for the review to be an independent one.
(4) The PPL rules may prescribe the time within which decisions under subsection (2) are to be made.
115ZG Authorised review officers
The Commissioner must authorise taxation officers to be authorised review officers for the purposes of this Part.
115ZH Withdrawal of review applications
(1) An applicant for review under section 115ZF may, in writing or in any other manner approved by the Commissioner, withdraw the application at any time before the decision reviewer does any of the things in subsection 115ZF(2).
(2) If an application is so withdrawn, it is taken never to have been made.
Chapter 4—Compliance and enforcement
Part 4‑1—Information gathering
Division 1—Guide to this Part
116 Guide to this Part
This Part allows the Secretary to gather information for the purposes of checking compliance with this Act.
Subdivision A of Division 2 allows the Secretary to require a person to give certain information or produce certain documents that are relevant to this Act.
Subdivision B of Division 2 deals with tax file numbers and the purposes for which tax file numbers may be used.
Subdivision C of Division 2 imposes an obligation on a person to whom instalments of parental leave pay are payable to notify the Secretary of a change of circumstances.
Division 3 deals with the confidentiality of personal and protected information.
Division 4 contains rules relating to offences against Parts 7.3 and 7.4 of the Criminal Code (which deal with fraudulent conduct and false and misleading statements) in relation to this Act.
Division 2—Information gathering
Subdivision A—Gathering information from any person
116A Reasonable belief needed to require information or documents
The Secretary can only require a person to:
(a) give information; or
(b) produce a document;
under this Subdivision if the Secretary reasonably believes that the person will be able to give the information or produce the document.
117 General power to obtain information
(1) The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers that the information or document may be relevant to one or more of the following:
(a) determining whether a person has made an effective claim for parental leave pay, and, if so, whether the person is or was eligible for parental leave pay, or is or was initially eligible for parental leave pay;
(b) determining whether parental leave pay is or was payable to a person;
(c) determining who should pay instalments of parental leave pay to a person;
(d) ensuring the Secretary can pay instalments of parental leave pay into the bank account of a person to whom instalments of parental leave pay are payable;
(e) determining whether to make an employer determination, or whether an employer determination should have been made;
(f) determining whether PPL funding amounts are or were payable to a person;
(g) ensuring that an employer complies or has complied with its obligations under this Act.
Note: The agency specified must be a PPL agency (see subsection 120(4)).
(3) The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers that the information or document may be relevant to an inquiry or investigation into a matter mentioned in subsection (1).
118 Power to obtain information from a person who owes a debt to the Commonwealth
The Secretary may require a person who owes a debt to the Commonwealth under or because of this Act:
(a) either to:
(i) give to a specified agency information that is relevant to the person’s financial situation; or
(ii) produce to a specified agency a document that is relevant to the person’s financial situation; and
(b) if the person’s address changes—to inform the specified agency of the new address within 14 days after the change.
Note: The agency specified must be a PPL agency (see subsection 120(4)).
119 Obtaining information about a person who owes a debt to the Commonwealth
The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers the information or document:
(a) would help the specified agency locate another person (the debtor) who owes a debt to the Commonwealth under or because of this Act; or
(b) is relevant to the debtor’s financial situation.
Note: The agency specified must be a PPL agency (see subsection 120(4)).
120 Written notice of requirement
Notice to be in writing
(1) A requirement under this Subdivision must be made by written notice given to the person of whom the requirement is made.
Contents of notice
(2) The notice:
(a) may be given personally or by post or in any other manner approved by the Secretary; and
(b) must specify:
(ia) a description of the information or document to which the requirement relates; and
(i) how the person is to give the information or produce the document to which the requirement relates; and
(ii) the period within which the person is to give the information or produce the document; and
(iii) the agency, and the officer (if any), to whom the information is to be given or the document is to be produced; and
(iv) that the notice is given under this section.
Note: The notice may describe the information or documents by class (see subsection 33(3AB) of the Acts Interpretation Act 1901).
(3) For the purposes of subparagraph (2)(b)(ii), the period must not end earlier than 14 days after the notice is given, unless the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of the effective administration of this Act, to specify a shorter period.
(4) For the purposes of subparagraph (2)(b)(iii), the Secretary must specify a PPL agency.
Requirement to attend interview
(5) The notice may require the person to give the information by appearing before a specified officer to answer questions.
(6) If the notice requires the person to appear before an officer, the notice must specify:
(a) a time and place at which the person is to appear; and
(b) that the person may be accompanied by a lawyer.
(7) For the purposes of subsection (6), the time must be at least 14 days after the notice is given, unless the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of the effective administration of this Act, to specify an earlier time.
121 Relationship with other laws
(1) Nothing contained in a law of a State or a Territory operates to prevent a person from:
(a) giving information; or
(b) producing a document; or
(c) giving evidence;
that the person is required to give or produce to a specified agency or an officer for the purposes of this Act.
(2) This Subdivision does not require a person to give information or produce a document to the extent that in doing so the person would contravene a law of the Commonwealth (other than a law of a Territory).
122 Offence—failure to comply with requirement
(1) A person commits an offence if:
(a) the person is required under this Subdivision (other than under paragraph 117(1)(d) (which deals with information about bank accounts)) to give information or produce a document; and
(b) the person refuses or fails to comply with the requirement.
Penalty: Imprisonment for 6 months.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
122A Self‑incrimination
(1) A person is not excused from giving information, or producing a document, under this Subdivision on the ground that the information, or production of the document, might tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of an individual:
(a) the information given or document produced; and
(b) giving the information or producing the document; and
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document;
are not admissible in evidence against the individual in any criminal proceedings, other than:
(d) proceedings for an offence against subsection 122(1); or
(e) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Subdivision; or
(f) proceedings for an offence against Division 145 of the Criminal Code.
122B Use of information in investigations etc.
Subject to subsection 122A(2), nothing in this Subdivision prevents information given, or a document produced, under this Subdivision by a person from being used in:
(a) an inquiry or investigation into a matter; or
(b) criminal proceedings.
Subdivision B—Gathering information relating to tax file numbers
123 Secretary may require Commissioner of Taxation to provide tax file numbers etc.
The Secretary may require the Commissioner of Taxation to provide the Secretary with information (including a tax file number) that is:
(a) about a person who has made an effective claim for parental leave pay; and
(b) relevant to the claim; and
(c) contained in a TFN declaration lodged with the Commissioner under Division 3 of Part VA of the Income Tax Assessment Act 1936.
124 Purposes for which tax file numbers may be used
(1) Subsection (2) applies to the tax file number of a person that is provided to the Secretary:
(a) under a provision of this Act, for the purposes of this Act:
(i) by the person; or
(ii) by the partner of the person; or
(iii) by the Commissioner of Taxation on the authority of the person; or
(b) by the Commissioner of Taxation under section 123.
(2) A tax file number provided to the Secretary as referred to in subsection (1) may be used only for the following purposes:
(a) to detect cases in which instalments of parental leave pay have been paid when they should not have been paid;
(b) to verify, in relation to persons who have made effective claims for parental leave pay, the eligibility of those persons for that pay.
Subdivision C—Obligation to notify of change of circumstances
125 Obligation to notify of change of circumstances
(1) A person who has made an effective claim for parental leave pay, in respect of which there is not in force any payability determination that parental leave pay is not payable, must notify the Secretary of the following things:
(a) anything that causes the person to cease to be eligible for parental leave pay on a day;
(b) anything that is likely to have the effect described in paragraph (a).
(3) The person must notify the Secretary, in the manner set out in a written notice given to the person under subsection (5), as soon as practicable after the person becomes aware that the thing has happened or is likely to happen.
(4) The Secretary must approve a manner of notification that a person must use when notifying the Secretary of a thing under this section.
(5) The Secretary must, by written notice, notify the person of the approved manner of notification.
(6) A person commits an offence if:
(a) the person is required to notify the Secretary of a thing under this section; and
(b) the person refuses or fails to comply with the requirement.
Penalty for contravention of this subsection: Imprisonment for 6 months.
Division 3—Confidentiality
126 Operation of Division
(1) Nothing in this Division prevents a person from disclosing information to another person if the information is disclosed for the purposes of:
(a) the Child Support (Assessment) Act 1989; or
(b) the Child Support (Registration and Collection) Act 1988.
(2) The provisions of this Division that relate to the disclosure of information do not affect the operation of the Freedom of Information Act 1982.
127 Obtaining and using protected information
Obtaining protected information
(1) A person may obtain protected information if the information is obtained for the purposes of this Act, or the Regulatory Powers Act as that Act applies in relation to this Act.
Using protected information
(2) A person may:
(a) make a record of protected information; or
(b) disclose such information to any person; or
(c) otherwise use such information;
if the record, disclosure or use of the information by the person is made:
(d) for the purposes of this Act, or the Regulatory Powers Act as that Act applies in relation to this Act; or
(da) for the purposes of the family assistance law; or
(db) for the purposes of the social security law; or
(dc) for the purposes of the Student Assistance Act 1973; or
(e) for the purposes for which the information was disclosed to the person under section 128; or
(f) with the express or implied authorisation of the person to whom the information relates.
(3) A person may use protected information to produce information in an aggregated form that does not disclose, either directly or indirectly, information about a particular person.
128 Disclosing personal information
(1) Despite sections 129 to 132, the Secretary may disclose information acquired by an officer in the exercise of the officer’s powers, or the performance of the officer’s duties or functions, under this Act or the Regulatory Powers Act as that Act applies in relation to this Act:
(a) to such persons and for such purposes as the Secretary determines, if the Secretary certifies that it is necessary in the public interest to do so in a particular case or class of cases; or
(b) to an Agency Head for the purposes of that Agency (within the meaning of the Public Service Act 1999), but only if the disclosure of the information is required by a law of the Commonwealth; or
(c) to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it; or
(d) to the Minister for the purposes of assisting the Minister to consider a complaint or issue in relation to a matter arising under this Act if the Secretary reasonably believes that the disclosure is likely to assist the Minister; or
(e) to an SES employee, or an APS employee, in the Department, for the purposes of briefing, or considering briefing, the Minister if the Secretary reasonably believes the disclosure is likely to assist the Minister to consider a complaint or issue in relation to a matter arising under this Act.
Note: Information disclosed under this section must also be dealt with in accordance with the Australian Privacy Principles.
(2) In giving certificates for the purposes of paragraph (1)(a), the Secretary must act in accordance with guidelines (if any) from time to time in force under subsection (4).
(3) In disclosing information under paragraph (1)(b), the Secretary must act in accordance with guidelines (if any) from time to time in force under subsection (4).
(4) The Minister may, in the PPL rules, make guidelines for the exercise of either or both of the following:
(a) the Secretary’s power to give certificates for the purposes of paragraph (1)(a);
(b) the Secretary’s power under paragraph (1)(b).
(5) If a determination or certificate under paragraph (1)(a) is made or given in writing, the determination or certificate is not a legislative instrument.
(6) Despite any other provision of this Part, the Secretary may disclose information of a kind referred to in paragraph (aa), (ab), (a) or (b) of the definition of protected information in section 6 that relates to a principal to the principal’s payment nominee or correspondence nominee.
129 Offence—unauthorised access to protected information
A person commits an offence if:
(a) the person obtains information; and
(b) the person is not authorised under this Act to obtain the information; and
(c) the information is protected information.
Penalty: Imprisonment for 2 years.
130 Offence—unauthorised use of protected information
A person commits an offence if:
(a) the person:
(i) makes a record of information; or
(ii) discloses information to any other person; or
(iii) otherwise makes use of information; and
(b) the person is not authorised or required under this Act to make that record, disclosure or use of the information; and
(c) the information is protected information.
Penalty: Imprisonment for 2 years.
130A Disclosure of information by AAT members—threat to life, health or welfare
Despite section 130, an AAT member may disclose information if the information concerns a threat to the life, health or welfare of a person and either of the following applies:
(a) the member believes on reasonable grounds that the disclosure is necessary to prevent or lessen the threat;
(b) there is reason to suspect that the threat may afford evidence that an offence may be, or has been, committed against a person and the member discloses the information for the purpose of preventing, investigating or prosecuting such an offence.
131 Offence—soliciting disclosure of protected information
(1) A person commits an offence if:
(a) the person solicits the disclosure of information from an officer or another person; and
(b) the disclosure would be in contravention of this Division; and
(c) the information is protected information.
Penalty: Imprisonment for 2 years.
(2) A person may commit an offence under subsection (1) whether or not any protected information is actually disclosed.
132 Offence—offering to supply protected information
(1) A person commits an offence if:
(a) the person offers to supply (whether to a particular person or otherwise) information about another person; and
(b) the information is protected information.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and
(b) the information is protected information.
Penalty: Imprisonment for 2 years.
(3) Nothing in subsection (1) or (2) makes an officer acting in the performance or exercise of his or her powers, duties or functions under this Act guilty of an offence.
Division 4—Offences against Parts 7.3 and 7.4 of the Criminal Code
133 Repayment of instalment of parental leave pay or PPL funding amount
(1) If a person is convicted of an offence against Part 7.3 or 7.4 of the Criminal Code in relation to this Act, the court may:
(a) impose a penalty in relation to the offence; and
(b) order the person to pay the Commonwealth an amount equal to any amount:
(i) paid to, or in relation to, the person by way of an instalment of parental leave pay because of the act, failure or omission that constituted the offence; or
(ii) paid to the person by way of a PPL funding amount because of the act, failure or omission that constituted the offence.
Note: The Secretary and a court may give a certificate in relation to the amount referred to in paragraph (1)(b) (see sections 138 and 139).
(2) Despite anything in this Act or any other law, a person is not to be imprisoned for failing to pay an amount payable to the Commonwealth under paragraph (1)(b).
134 Penalty where person convicted of more than one offence
(1) If a person is convicted of more than one offence against Part 7.3 or 7.4 of the Criminal Code in relation to this Act, the court may, if it considers it appropriate, impose one penalty for all the offences.
(2) However, a single penalty imposed under subsection (1) must not be more than the sum of the maximum penalties that could be imposed if a separate penalty were imposed for each offence.
135 Joining of charges
Charges against the same person for a number of offences against Part 7.3 or 7.4 of the Criminal Code in relation to this Act may be joined in one complaint, information or declaration if those charges:
(a) are founded on the same facts; or
(b) form a series of offences of the same or a similar character; or
(c) are part of a series of offences of the same or a similar character.
136 Particulars of each offence
If 2 or more charges are included in the same complaint, information or declaration, particulars of each offence charged are to be set out in a separate paragraph.
137 Trial of joined charges
If charges are joined, the charges are to be tried together unless:
(a) the court considers it just that any charge should be tried separately; and
(b) the court makes an order to that effect.
138 Evidentiary effect of Secretary’s certificate
(1) For the purposes of paragraph 133(1)(b), a certificate signed by the Secretary is prima facie evidence of the matters specified in the certificate.
(2) The certificate may specify:
(a) the person to whom an instalment of parental leave pay or a PPL funding amount has been paid because of an act, a failure or an omission for which the person or another person has been convicted of an offence against Part 7.3 or 7.4 of the Criminal Code; and
(b) the amount paid; and
(c) the act, failure or omission that caused the amount to be paid.
139 Enforcement of court certificate as judgment
If:
(a) a court makes an order under paragraph 133(1)(b); and
(b) the clerk or other appropriate officer of the court gives a certificate specifying:
(i) the amount ordered to be paid to the Commonwealth; and
(ii) the person by whom the amount is to be paid; and
(c) the certificate is filed in a court (which may be the court that made the order) that has civil jurisdiction to the extent of the amount to be paid;
the certificate is enforceable in all respects as a final judgment of the court in which the certificate is filed.
Part 4‑2—Compliance
Division 1—Guide to this Part
140 Guide to this Part
This Part deals with compliance with this Act.
Division 2 allows the Secretary to refer matters to the Fair Work Ombudsman for investigation if the Secretary has reason to believe that an employer has not complied with certain obligations under this Act.
Division 3 deals with civil penalty provisions. These provisions impose obligations on certain persons. Civil penalty orders may be sought under Part 4 of the Regulatory Powers Act in relation to contraventions of the civil penalty provisions of this Act.
Division 4 deals with compliance notices. A compliance notice can be given to a person who has contravened a civil penalty provision, requiring the person to rectify the contravention.
Division 5 deals with infringement notices. An infringement notice may be issued under Part 5 of the Regulatory Powers Act for an alleged contravention of a civil penalty provision of this Act. A person who is given an infringement notice can choose to pay a penalty. If the penalty is not paid, a civil penalty order under Part 4 of the Regulatory Powers Act may be sought in relation to the person.
Division 2—Referring matters to the Fair Work Ombudsman
141 Functions of the Fair Work Ombudsman
The Fair Work Ombudsman has the following functions:
(a) to inquire into, and investigate, any matter referred to the Fair Work Ombudsman under section 143;
(b) to commence proceedings in a court in relation to a contravention of section 70 (which deals with unauthorised deductions from instalments) or Part 3‑2 (which deals with payment of instalments by an employer);
(c) any other function that is incidental to the function referred to in paragraph (a) or (b).
142 Exercise of compliance powers
(1) A Fair Work Inspector may exercise compliance powers (within the meaning of the Fair Work Act) (other than a power under section 715 or 716 of that Act) for the purpose of determining whether the following provisions of this Act are being, or have been, complied with:
(a) section 70 (which deals with unauthorised deductions from instalments);
(b) Part 3‑2 (which deals with payment of instalments by an employer).
(2) For the purposes of the Fair Work Act:
(a) the purpose referred to in subsection (1) of this section is taken to be a compliance purpose; and
(b) a civil penalty provision under section 70 (which deals with unauthorised deductions from instalments) or Part 3‑2 of this Act (which deals with payment of instalments by an employer) is taken to be a civil remedy provision.
143 Referring matters to the Fair Work Ombudsman
(1) The Secretary may refer a matter to the Fair Work Ombudsman for investigation if:
(a) the Secretary has reason to believe that an employer has not complied with an obligation under section 70 (which deals with unauthorised deductions from instalments) or Part 3‑2 (which deals with payment of instalments by an employer) in relation to a person; and
(b) the Secretary does not believe that the employer and the person are able to resolve the matter themselves.
(2) The Secretary must inform the employer and the person, in writing, if the Secretary refers the matter to the Fair Work Ombudsman.
(3) The Secretary must give the Fair Work Ombudsman the following information:
(a) if the contravention is in relation to section 70, 72 or 74:
(i) the day on which the Secretary paid a PPL funding amount to the employer for the person; and
(ii) a copy of the notice given to the employer under section 77 in relation to the PPL funding amount;
(b) in any case—any action taken or information obtained by the Secretary in relation to the matter.
144 Fair Work Ombudsman to notify of outcome of investigation
The Fair Work Ombudsman must, as soon as practicable after completing an investigation referred by the Secretary under section 143, notify the Secretary, in writing, of the outcome of the investigation.
Note: If the Fair Work Ombudsman gives a compliance notice, the Fair Work Ombudsman must also notify the Secretary of the outcome of the compliance notice (see section 158).
Division 3—Civil penalty orders
146 Civil penalty provisions
A provision referred to in column 1 of an item in the table is a civil penalty provision, and the pecuniary penalty for the civil penalty provision is that specified in column 2 of that item.
Civil penalty provisions |
Item | Column 1 Civil penalty provision | Column 2 Penalty |
1 | Subsection 70(2) | 60 penalty units |
2 | Subsection 72(1) | 60 penalty units |
3 | Subsection 72(2) | 60 penalty units |
4 | Subsection 72(3) | 60 penalty units |
5 | Section 74 | 60 penalty units |
6 | Section 80 | 30 penalty units |
7 | Subsection 81(1) | 30 penalty units |
8 | Subsection 81(2) | 30 penalty units |
9 | Subsection 82(2) | 60 penalty units |
10 | Section 103 | 60 penalty units |
11 | Subsection 105(3) | 60 penalty units |
12 | Subsection 157(4) (in relation to a contravention of a compliance notice given in relation to a contravention of section 80 or subsection 81(1) or (2)) | 30 penalty units |
13 | Subsection 157(4) (in relation to a contravention of a compliance notice given in relation to any other civil penalty provision) | 60 penalty units |
Note: Under subsection 82(5) of the Regulatory Powers Act the pecuniary penalty imposed must be no more than that specified (or, for a body corporate, no more than 5 times that specified).
147 Civil penalty orders
Enforceable civil penalty provisions
(1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act, each of the following persons is an authorised applicant in relation to the civil penalty provisions of this Act:
(a) the Secretary;
(b) the Fair Work Ombudsman.
Relevant court
(3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2).
Delegation
(4) The Secretary may, in writing, delegate the Secretary’s powers and functions under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, to:
(a) the Chief Executive Centrelink; or
(b) the Chief Executive Medicare; or
(c) an SES employee or an acting SES employee.
(5) If the Secretary delegates any of the Secretary’s powers or functions under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, to the Chief Executive Centrelink, the Chief Executive Centrelink cannot, despite any provision in the Human Services (Centrelink) Act 1997, delegate the power to a Departmental employee (within the meaning of that Act) who is neither:
(a) an SES employee; nor
(b) an acting SES employee.
(6) If the Secretary delegates any of the Secretary’s powers or functions under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, to the Chief Executive Medicare, the Chief Executive Medicare cannot, despite any provision in the Human Services (Medicare) Act 1973, delegate the power to a Departmental employee (within the meaning of that Act) who is neither:
(a) an SES employee; nor
(b) an acting SES employee.
Territories of Christmas Island and Cocos (Keeling) Islands
(7) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, extends to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.
Liability of Crown
(8) To avoid doubt, subsection 3(2) does not prevent the Crown from being liable to pay a pecuniary penalty under a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act.
156 Requirement for person to assist in applications for civil penalty orders
(1) A person commits an offence if:
(a) the Secretary requests, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act; and
(b) the person fails to comply with the request.
Penalty: 10 penalty units.
Note: This section does not abrogate or affect the law relating to legal professional privilege, or any other immunity, privilege or restriction that applies to the disclosure of information, documents or other things.
(2) A request under subsection (1) is not a legislative instrument.
(3) The Secretary can request a person to assist under subsection (1) only if:
(a) it appears to the Secretary that the person is unlikely to have:
(i) contravened the civil penalty provision to which the application relates; or
(ii) committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and
(b) the Secretary suspects or believes that the person can give information relevant to the application.
(4) The Secretary cannot request a person to assist under subsection (1) if the person is or has been a lawyer for the person suspected of contravening the civil penalty provision to which the application relates.
(5) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may order a person to comply with a request under subsection (1) in a specified way. Only the Secretary may apply to the court for an order under this subsection.
(6) For the purposes of this section, it does not matter whether the application for the civil penalty order under the Regulatory Powers Act has actually been made.
Division 4—Compliance notices
157 Giving a compliance notice
Compliance notice given by Secretary
(1) This section applies if the Secretary reasonably believes that a person has contravened one or more of the following provisions:
(a) subsection 82(2) (which deals with notifying the Secretary if certain events happen);
(b) section 103 (which deals with responding to an employer determination);
(c) subsection 105(3) (which deals with giving bank account and pay cycle information etc. after a review).
Compliance notice given by Fair Work Ombudsman
(2) This section also applies if the Fair Work Ombudsman reasonably believes that a person has contravened one or more of the following provisions:
(a) subsection 70(2) (which deals with unauthorised deductions from instalments);
(b) subsection 72(1), (2) or (3) (which deals with when an employer pays instalments);
(c) section 74 (which deals with the method of payment of instalments payable by an employer);
(d) section 80 (which deals with giving a person a record of payment);
(e) subsection 81(1) or (2) (which deals with keeping records).
Requirements of a compliance notice
(3) The Secretary or the Fair Work Ombudsman may give the person a notice (a compliance notice) requiring the person to do the following within 14 days of the day on which the notice is given:
(a) take the action set out in the notice to rectify the contravention;
(b) produce reasonable evidence of the person’s compliance with the notice.
(4) A person must not fail to comply with a compliance notice.
Note: This subsection is a civil penalty provision (see section 146).
Contents of a compliance notice
(5) A compliance notice must also:
(a) set out the name of the person to whom the notice is given; and
(b) set out the name of the person who gave the notice; and
(c) set out brief details of the alleged contravention; and
(d) explain that a failure to comply with the notice may contravene a civil penalty provision; and
(e) set out any other matters prescribed by the PPL rules.
158 Fair Work Ombudsman to notify of outcome of compliance notice
If the Fair Work Ombudsman gives a compliance notice to a person, the Fair Work Ombudsman must, as soon as practicable, notify the Secretary, in writing, of the outcome of the compliance notice.
Division 5—Infringement notices
159 Infringement notices
Provisions subject to an infringement notice
(1) The following civil penalty provisions of this Act are subject to an infringement notice under Part 5 of the Regulatory Powers Act:
(a) subsection 82(2) (which deals with notifying the Secretary if certain events happen);
(b) section 103 (which deals with responding to an employer determination);
(c) subsection 105(3) (which deals with giving bank account and pay cycle information etc. after a review);
(d) subsection 157(4), in relation to a compliance notice given to a person by the Secretary.
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer and relevant chief executive for the provisions mentioned in subsection (1)
(2) For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is an infringement officer and the relevant chief executive in relation to the provisions mentioned in subsection (1).
Further provisions subject to an infringement notice
(3) The following civil penalty provisions of this Act are subject to an infringement notice under Part 5 of the Regulatory Powers Act:
(a) subsection 70(2) (which deals with unauthorised deductions from instalments);
(b) subsection 72(1), (2) or (3) (which deals with when an employer pays instalments);
(c) section 74 (which deals with the method of payment of instalments payable by an employer);
(d) section 80 (which deals with giving a person a record of a payment);
(e) subsection 81(1) or (2) (which deals with keeping records);
(f) subsection 157(4), in relation to a compliance notice given to a person by the Fair Work Ombudsman.
Infringement officer and relevant chief executive for the provisions mentioned in subsection (3)
(4) For the purposes of Part 5 of the Regulatory Powers Act, the Fair Work Ombudsman is an infringement officer and the relevant chief executive in relation to the provisions mentioned in subsection (3).
Time limit for giving an infringement notice
(5) Despite subsection 103(2) of the Regulatory Powers Act, an infringement notice given in relation to a failure to comply with a compliance notice under subsection 157(4) must be given within 12 months of the day on which the 14‑day period referred to in subsection 157(3) of this Act ends.
Amount to be stated in infringement notice
(6) Despite subsections 104(2) and (3) of the Regulatory Powers Act, the amount to be stated in an infringement notice for the purposes of paragraph 104(1)(f) of that Act in relation to a provision mentioned in subsection (1) or (3) must be:
(a) if the infringement notice is given to a body corporate for a single contravention:
(i) in relation to a contravention of section 80 (which deals with giving a person a record of payments) or subsection 81(1) or (2) (which deals with keeping records)—15 penalty units; and
(ii) in relation to a contravention of a compliance notice given in relation to a contravention of section 80 or subsection 81(1) or (2)—15 penalty units; and
(iii) otherwise—30 penalty units; or
(b) if the infringement notice is given to a person other than a body corporate for a single contravention:
(i) in relation to a contravention of section 80 (which deals with giving a person a record of payments) or subsection 81(1) or (2) (which deals with keeping records)—3 penalty units; and
(ii) in relation to a contravention of a compliance notice given in relation to a contravention of section 80 or subsection 81(1) or (2)—3 penalty units; and
(iii) otherwise—6 penalty units; or
(c) if the infringement notice is given to a person (whether or not a body corporate) for a number of contraventions—the number of penalty units worked out by multiplying the penalty units for a single contravention (worked out under paragraph (a) or (b)) by the number of alleged contraventions to which the notice relates.
Delegation
(7) The Secretary may, in writing, delegate the Secretary’s powers and functions under Part 5 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (1) or (3), to:
(a) the Chief Executive Centrelink; or
(b) the Chief Executive Medicare; or
(c) an SES employee or an acting SES employee.
(8) If the Secretary delegates any of the Secretary’s powers or functions under Part 5 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (1) or (3), to the Chief Executive Centrelink, the Chief Executive Centrelink cannot, despite any provision in the Human Services (Centrelink) Act 1997, delegate the power to a Departmental employee (within the meaning of that Act) who is neither:
(a) an SES employee; nor
(b) an acting SES employee.
(9) If the Secretary delegates any of the Secretary’s powers or functions under Part 5 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (1) or (3), to the Chief Executive Medicare, the Chief Executive Medicare cannot, despite any provision in the Human Services (Medicare) Act 1973, delegate the power to a Departmental employee (within the meaning of that Act) who is neither:
(a) an SES employee; nor
(b) an acting SES employee.
Territories of Christmas Island and Cocos (Keeling) Islands
(10) Part 5 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsections (1) and (3), extends to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.
Part 4‑3—Debt recovery
Division 1—Guide to this Part
164 Guide to this Part
This Part provides for debts in relation to the paid parental leave scheme, and for the recovery of debts owing to the Commonwealth.
Division 2 provides for the main debts recoverable by the Commonwealth under this Act, as follows:
(a) overpayments or mistaken payments of parental leave pay;
(b) PPL funding amounts for a person that are not paid to the person as parental leave pay;
(c) parental leave pay or PPL funding amounts paid to the wrong person.
Division 3 allows an employee to recover, as a debt, parental leave pay due from his or her employer.
Division 4 deals with the procedure for raising a debt that is recoverable by the Commonwealth under this Act, and charging interest on the debt.
Division 5 deals with how the Commonwealth can recover debts.
Division 6 allows the Secretary to write off debts. Even if a debt is written off, it can be later recovered if circumstances change.
Division 7 allows the Secretary to waive debts in various circumstances.
Division 7A deals with when a departure prohibition order, prohibiting a person from departing from Australia for a foreign country, can be made if the person has a debt due to the Commonwealth under this Act.
Division 8 provides that debts under this Act apply in relation to matters inside and outside Australia, and to all persons irrespective of nationality or citizenship.
Division 2—Main debts recoverable under this Act
165 Debts due to the Commonwealth
If an amount has been paid by way of parental leave pay or a PPL funding amount, the amount (or an amount equivalent to the amount) is a debt due to the Commonwealth only to the extent expressly provided for under:
(a) this Act; or
(b) the Data‑matching Program (Assistance and Tax) Act 1990.
Note: The main debts due to the Commonwealth under this Act are provided for in this Division. Other debts due to the Commonwealth are provided for in the following provisions:
(a) section 176 (which deals with interest);
(c) section 186 (which deals with non‑compliance with garnishee notices).
166 Parental leave pay instalment debts—instalments paid by employer
(1) This section applies if:
(a) the total of amounts paid to a person (the first person) by way of PPL funding amounts in relation to instalments for another person for a child exceeds (by the PPL funding excess) the total of amounts payable to the first person as PPL funding amounts in relation to those instalments; and
(b) the first person pays an amount (the employer payment) to, or in relation to, the other person for the child by way of an instalment; and
(c) the total of employer payments paid for the child exceeds (by the instalment excess) the total of amounts that are payable by the first person to, or in relation to, the other person for the child as instalments under Division 2 of Part 3‑2 (which deals with the payment of instalments by employers).
Note: Instalments may stop being payable with retrospective effect if a payability determination that parental leave is payable to the other person for the child is set aside or varied after the instalments are paid.
(2) An amount equal to the lesser of the PPL funding excess and the instalment excess is a debt due to the Commonwealth by the other person.
Example: If no amounts are payable by the first person to, or in relation to, the other person for a child as instalments, the amount of the instalment excess is the total amount of the employer payments.
(3) The debt under subsection (2) arises:
(a) if the other person has a continuous flexible period for the child—immediately after the end of that continuous flexible period; or
(b) otherwise—when subsection (1) starts to apply in relation to an employer payment.
Note: This section may apply to overpayments by way of instalments or amounts that are mistakenly paid. For example, an overpayment or mistaken payment may arise due to administrative error, the setting aside or variation of a payability determination or payments following a stay order under subsection 41(2) of the AAT Act.
167 Parental leave pay instalment debts—instalments paid by the Secretary
(1) This section applies if:
(a) the Secretary pays an amount to, or in relation to, a person for a child by way of an instalment; and
(b) the amount exceeds the amount that should have been paid to, or in relation to, the person under Part 3‑3.
Note: Instalments may stop being payable with retrospective effect if the payability determination is set aside or varied after the instalments are paid.
(2) An amount equal to the amount of the excess is a debt due to the Commonwealth by the person.
(3) The debt under subsection (2) arises when the Secretary pays the amount mentioned in paragraph (1)(a).
168 PPL funding amount debts—amounts not paid as parental leave pay instalments
(1) This section applies if the total of amounts paid to a person (the first person) by way of PPL funding amounts in relation to instalments for another person for a child exceeds the total of amounts paid by the first person to, or in relation to, the other person by way of such instalments for the child.
(2) The amount of the excess is a debt due to the Commonwealth by the first person.
Example: If the first person has not paid any amounts by way of instalments to the other person, the amount of the excess is the total of amounts paid to the first person by way of PPL funding amounts in relation to instalments for the other person for the child.
(3) The debt under subsection (2) arises when subsection (1) starts to apply in relation to an amount paid to the first person.
Note: This section may apply to overpayments by way of PPL funding amounts or amounts that are mistakenly paid. For example, an overpayment or mistaken payment may arise due to administrative error or the revocation or setting aside of an employer determination.
169 Wrong person receives parental leave pay instalment or PPL funding amount
(1) This section applies if:
(a) an instalment or a PPL funding amount (the PPL payment) is paid by the Secretary or an employer; and
(b) a person (the wrong recipient) other than the person (the right recipient) to whom the PPL payment is payable receives the PPL payment (or a part of it); and
(c) the wrong recipient is not authorised by the right recipient, or authorised under law, to receive the PPL payment (or that part).
(2) An amount equal to the PPL payment (or that part of the PPL payment), is a debt due by the wrong recipient to:
(a) if the PPL payment is made by the Secretary—the Commonwealth; or
(b) if the PPL payment is made by an employer—the employer.
Note 1: Because the PPL payment (or part) has not been properly paid to the right recipient, the Secretary or the employer must repay to the right recipient the amount of the PPL payment that ought to have been paid to the right recipient in the first place.
Note 2: The Secretary may recover a debt due to the Commonwealth under this section from an ADI (see section 192).
170 Joint and several liability for debts arising because of false and misleading statements
A person (the recipient) and another person are jointly and severally liable to pay a debt if:
(a) the recipient is liable under this Division to repay an amount (the unauthorised amount) paid to, or in relation to, the recipient (or an amount equal to such an amount); and
(b) the unauthorised amount was paid because the recipient contravened Part 7.4 of the Criminal Code (which deals with false and misleading statements); and
(c) the other person is convicted of an offence:
(i) that is taken to have been committed in relation to that contravention because of section 11.2 or 11.2A of the Criminal Code (which deal with complicity, common purpose and joint commission); or
(ii) in relation to that contravention against section 11.4 or 11.5 of the Criminal Code (which deal with incitement and conspiracy).
171 Debts under the Data‑matching Program (Assistance and Tax) Act 1990
An amount is recoverable by the Commonwealth if:
(a) the amount has been paid to, or in relation to, a person by way of an instalment; and
(b) the amount is a debt due to the Commonwealth under subsection 11(6) of the Data‑matching Program (Assistance and Tax) Act 1990.
Division 3—Parental leave pay recoverable by employees from employers
172 PPL funding amount debts—debts owing by employers to employees
(1) This section applies if:
(a) a PPL funding amount is paid to an employer in relation to an instalment that is payable to a person; and
(b) the instalment, or part of the instalment, is not paid to, or in relation to, the person in accordance with the following provisions:
(i) section 70 (which deals with unauthorised deductions from instalments);
(ii) Division 2 of Part 3‑2 (which deals with the payment of instalments by employers).
(2) So much of the instalment as is not paid to, or in relation to, the person in accordance with section 70 and Division 2 of Part 3‑2, or as arrears under section 85, 86 or 87, is a debt due to the person by the employer, and is recoverable by the person in a court of competent jurisdiction.
Division 4—Debt notices and interest on debts
173 Notices in respect of debt
(1) If a debt due to the Commonwealth under this Act (other than Chapter 3A) has not been wholly paid, the Secretary must give the debtor a notice stating the following:
(a) the date the preparation of the notice is completed (the date of the notice);
(b) for a debt under section 168 that relates to a PPL funding amount payable in relation to an instalment (or a debt under this Division in relation to such a debt)—the name of the person to whom, or in relation to whom, the instalment is payable;
(c) the reason the debt was incurred, including a brief explanation of the circumstances that led to the debt being incurred;
(d) the period to which the debt relates;
(e) the outstanding amount of the debt at the date of the notice;
(f) the day on which the outstanding amount is due and payable;
(fa) the effect of sections 174 and 175;
(g) that a range of options is available for repayment of the debt;
(h) the contact details for inquiries concerning the debt.
Note: A debt due to the Commonwealth under Chapter 3A is a tax‑related liability under the Taxation Administration Act 1953.
Due date
(2) The outstanding amount of the debt is due and payable on the 28th day after the date of the notice.
Multiple notices
(3) The Secretary may give more than one notice under subsection (1) in relation to a person and a debt of the person.
174 Interest charge—no debt payment arrangement in effect
(1) If:
(a) a notice is given to a person under subsection 173(1) in relation to a debt; and
(b) an amount (the unpaid amount) of the debt remains unpaid at the end of the day (the due day) on which the debt is due to be paid; and
(c) at the end of the due day, there is no debt payment arrangement in effect in relation to the debt;
then the person is liable to pay, by way of penalty, interest charge, worked out under subsection (3), for each day in the period described in subsection (2).
Note: For exemptions, see sections 178 and 179.
(2) The period starts at the beginning of the day after the due day and ends at the end of the earlier of the following days:
(a) the last day at the end of which any of the following remains unpaid:
(i) the unpaid amount;
(ii) interest charge on any of the unpaid amount;
(b) the day before the first day, after the due day, on which the person makes a payment under a debt payment arrangement in relation to the debt.
(3) The interest charge for a day in the period described in subsection (2) is worked out by multiplying the interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:
(a) the unpaid amount;
(b) the interest charge from previous days.
Note 1: For interest charge rate see section 177.
Note 2: The interest charge for a day is due and payable to the Commonwealth at the end of that day and is a debt due to the Commonwealth: see section 176.
175 Interest charge—failure to comply with or termination of debt payment arrangement
(1) If:
(a) a debt payment arrangement is in effect in relation to a person and a debt; and
(b) the person fails to make a payment under the arrangement;
then the person is liable to pay, by way of penalty, interest charge, worked out under subsection (3), for each day in the period described in subsection (2).
Note: For exemptions, see sections 178 and 179.
(2) The period starts at the beginning of the day after the day (the due day) on which the payment was required to be made under the arrangement and ends at the end of the earliest of the following days:
(a) the last day at the end of which any of the following remains unpaid:
(i) the outstanding amount of the debt;
(ii) interest charge on any of the outstanding amount of the debt;
(b) the day before the first day, after the due day, on which the person has paid all the payments that have so far become due and payable under the arrangement;
(c) the day before the day the arrangement is terminated under section 190.
(3) The interest charge for a day in the period described in subsection (2) is worked out by multiplying the interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:
(a) the outstanding amount of the debt;
(b) the interest charge from previous days.
Note 1: For interest charge rate see section 177.
Note 2: The interest charge for a day is due and payable to the Commonwealth at the end of that day and is a debt due to the Commonwealth: see section 176.
Debt payment arrangement is terminated
(4) If:
(a) a debt payment arrangement is in effect in relation to a person and a debt; and
(b) the arrangement is then terminated under section 190 on a day (the termination day);
then:
(c) the following amounts (if any) are due and payable on the 14th day after the termination day:
(i) the outstanding amount of the debt;
(ii) interest charge on any of the outstanding amount of the debt; and
(d) if, at the end of that 14th day, any of those amounts remains unpaid, the person is liable to pay, by way of penalty, interest charge, worked out under subsection (6), for each day in the period described in subsection (5).
Note: For exemptions, see sections 178 and 179.
(5) The period starts at the beginning of the day after that 14th day and ends at the end of the earlier of the following days:
(a) the last day at the end of which any of the following remains unpaid:
(i) the outstanding amount of the debt;
(ii) interest charge on any of the outstanding amount of the debt;
(b) the day before the first day, after that 14th day, on which the person makes a payment under another debt payment arrangement in relation to the debt.
(6) The interest charge for a day in the period described in subsection (5) is worked out by multiplying the interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:
(a) the outstanding amount of the debt;
(b) the interest charge from previous days.
Note 1: For interest charge rate see section 177.
Note 2: The interest charge for a day is due and payable to the Commonwealth at the end of that day and is a debt due to the Commonwealth: see section 176.
176 Other rules for interest charge
When interest charge is due and payable
(1) The interest charge under section 174 or 175 for a day is due and payable to the Commonwealth at the end of that day.
Interest charge is a debt
(2) The interest charge under section 174 or 175 for a day is a debt due to the Commonwealth by the person.
Provisions that do not apply to interest charge debt
(3) Subsection 173(1) does not apply in relation to the debt referred to in subsection (2) of this section.
177 What is the interest charge rate?
(1) The interest charge rate for a day is the rate worked out by adding 7 percentage points to the base interest rate for that day, and dividing that total by the number of days in the calendar year.
(2) The base interest rate for a day depends on which quarter of the year the day is in. For each day in a quarter in column 1 of the table, it is the monthly average yield of 90‑day Bank Accepted Bills published by the Reserve Bank of Australia for the month in column 2 of the table.
Base interest rate |
Item | Column 1
For days in this quarter: | Column 2
the monthly average yield of 90‑day Bank Accepted Bills for this month applies: |
1 | 1 January to 31 March | the preceding November |
2 | 1 April to 30 June | the preceding February |
3 | 1 July to 30 September | the preceding May |
4 | 1 October to 31 December | the preceding August |
(3) If the monthly average yield of 90‑day Bank Accepted Bills for a particular month in column 2 of the table in subsection (2) is not published by the Reserve Bank of Australia before the beginning of the relevant quarter, assume that it is the same as the last monthly average yield of 90‑day Bank Accepted Bills published by the Reserve Bank of Australia before that month.
(4) The base interest rate must be rounded to the second decimal place (rounding .005 upwards).
178 Exemption from interest charge—general
A person is not liable to pay interest charge under section 174 or 175 if on the day before the start of the period in respect of which the person would otherwise have been liable to pay that charge:
(a) the person is receiving instalments of family tax benefit (within the meaning of the A New Tax System (Family Assistance) Act 1999); or
(b) the person is receiving a social security payment (within the meaning of the Social Security Act); or
(c) the person is receiving a payment of pension, veteran payment or allowance under the Veterans’ Entitlements Act 1986; or
(d) the person is receiving instalments under the ABSTUDY scheme (also known as the Aboriginal Study Assistance Scheme) that includes an amount identified as living allowance; or
(e) the person is receiving instalments under the Assistance for Isolated Children Scheme; or
(f) the circumstances prescribed by the PPL rules apply in relation to the person.
179 Exemption from interest charge—Secretary’s determination
(1) The Secretary may determine that interest charge is not payable, or is not payable in respect of a particular period, by a person on the outstanding amount of a debt.
(2) The Secretary may make a determination under this section in circumstances that include (but are not limited to) the Secretary being satisfied that the person has a reasonable excuse for:
(a) failing to enter into a debt payment arrangement to pay the outstanding amount of the debt; or
(b) having entered an arrangement, failing to make a payment in accordance with that arrangement.
(3) The determination may relate to a period before, or to a period that includes a period before, the making of the determination.
(4) The determination may be expressed to be subject to the person complying with one or more specified conditions.
(5) If the determination is expressed to be subject to the person complying with one or more specified conditions, the Secretary must give written notice of the determination to the person as soon as practicable after the determination is made.
(6) If:
(a) the determination is expressed to be subject to the person complying with one or more specified conditions; and
(b) the person contravenes a condition or conditions without reasonable excuse;
the determination ceases to have effect from and including the day on which the contravention or the earliest of the contraventions occurred.
(7) The Secretary may cancel or vary the determination by written notice given to the person.
180 Guidelines on interest charge provisions
The PPL rules may prescribe guidelines for the operation of the provisions of this Division dealing with interest charge.
Division 5—How the Commonwealth can recover debts
181 Debts to which Division 5 applies
This Division applies to debts due to the Commonwealth under this Act.
Note: See the following provisions:
(a) Division 2 (which provides for the main debts recoverable under this Act);
(b) sections 176 and 186 (which provide for debts relating to interest and garnishee notices).
182 How to recover debts
A debt is recoverable by the Commonwealth from a person by one or more of the following means:
(a) legal proceedings (see section 183);
(b) garnishee notice (see section 184);
(c) debt payment arrangements (see section 190);
(ca) deductions from instalments payable to the person as determined by the Secretary (see section 190A);
(d) deductions from instalments payable to another person for the same child (see section 191);
(e) recovery from an ADI, if the debt arises from a payment to the wrong person, or the amount is to be recovered from a deceased estate (see section 192);
(f) deduction or setting off in relation to a payment to which the debtor (or another person) is entitled under another Act, but only if the other Act expressly provides for recovery of the debt by such deduction or setting off.
Note: A debt can be recovered by deduction or set off in relation to other payments as follows:
(a) sections 84 and 92 of the A New Tax System (Family Assistance) (Administration) Act 1999 (which deal with family tax benefit);
(b) sections 84A and 92A of the A New Tax System (Family Assistance) (Administration) Act 1999 (which deal with family assistance);
(c) sections 1231 and 1234A of the Social Security Act (which deal with social security payments).
(d) section 205 of the Veterans’ Entitlements Act 1986 (which deals with pensions, allowances and other payments).
183 Legal proceedings
A debt is recoverable by the Commonwealth in a court of competent jurisdiction.
184 Garnishee notices—general
Issue of garnishee notice
(1) The Secretary may, by written notice (the garnishee notice) to any of the following people (the garnishee), require the garnishee to pay the Commonwealth the amount covered by subsection (2) in relation to a debt (the original debt) that is recoverable by the Commonwealth under this Act from a person (the original debtor):
(a) a person by whom any money is due or accruing, or may become due, to the original debtor;
(b) a person who holds or may later hold money for or on account of the original debtor;
(c) a person who holds or may later hold money on account of some other person for payment to the original debtor;
(d) a person who has authority from some other person to pay money to the original debtor.
Note: Subsection (3) provides that conditions on the payment of money due to the original debtor are to be ignored for the purposes of this section.
(2) The amount covered by this subsection is:
(a) an amount stated in the garnishee notice, not exceeding the amount of the original debt or the amount of the money referred to in paragraph (1)(a), (b), (c) or (d); or
(b) an amount stated in the garnishee notice out of each payment that the garnishee becomes liable from time to time to make to the original debtor, until the original debt is satisfied; or
(c) the amount of a percentage stated in the garnishee notice of each payment that the garnishee becomes liable from time to time to make to the original debtor, until the original debt is satisfied.
(3) For the purposes of this section, if, apart from this subsection, money is not due or repayable on demand to the original debtor unless a condition is fulfilled, the money is taken to be due or repayable on demand, even though the condition has not been fulfilled.
Time for compliance
(4) The time for making a payment in compliance with a garnishee notice is the time stated in the notice, but not before:
(a) the money concerned becomes due or is held; or
(b) the end of 14 days after the notice is given.
(5) The Secretary must give a copy of a garnishee notice to the original debtor.
185 Garnishee notices—amounts paid in compliance
(1) A person who makes a payment to the Commonwealth in compliance with a garnishee notice is taken to have made the payment under the authority of the original debtor and of any other person concerned.
(2) If, after a garnishee notice is given to a garnishee, an amount is paid by another person in reduction or in satisfaction of the original debt:
(a) the Secretary must notify the garnishee accordingly; and
(b) the amount of the unpaid debt stated in the garnishee notice is taken to be reduced by an amount equal to the amount paid.
186 Garnishee notices—debt for failure to comply with notice
(1) This section applies if a garnishee fails to comply with the garnishee notice to the extent that the garnishee is capable of complying with it.
(2) The amount of the debt outstanding (worked out under subsection (3)) is a debt due to the Commonwealth by the garnishee.
(3) The amount of the debt outstanding is the amount equal to the lesser of the following amounts:
(a) as much of the amount required by the garnishee notice to be paid by the garnishee as the garnishee was able to pay;
(b) as much of the debt due by the original debtor when the notice was given as remains due from time to time.
(4) If the Commonwealth recovers the whole or part of the debt due by the garnishee under subsection (2), or by the original debtor, then:
(a) both debts are reduced by the amount that the Commonwealth has so recovered; and
(b) the amount of the unpaid debt stated in the garnishee notice is taken to be reduced by the amount so recovered.
(5) This section applies to an amount despite any law of a State or a Territory (however expressed) under which the amount is inalienable.
187 Garnishee notices—offence for non‑compliance
A person commits an offence if:
(a) the person is a garnishee; and
(b) the person is given a garnishee notice; and
(c) the person refuses or fails to comply with the notice.
Penalty: Imprisonment for 12 months.
188 Garnishee notices—relationship with other laws
Sections 184 to 187 apply to an amount of money despite any law of a State or a Territory (however expressed) under which the amount is inalienable.
190 Payment of debts by arrangement
(1) The Secretary may, on behalf of the Commonwealth, enter into an arrangement (a debt payment arrangement) with a person who owes a debt, under which the person is to pay the debt, or the outstanding amount of the debt, by part payments in accordance with the terms of the arrangement.
(1A) If a person is required to make a payment under a debt payment arrangement before the end of a particular day, the person must make that payment before the end of that day.
(2) A debt payment arrangement operates, or is taken to have operated, on and after the day stated in the arrangement as the day on which the arrangement starts (whether that day is the day on which the arrangement is entered into or an earlier or later day).
(3) If a debt payment arrangement does not state a day as referred to in subsection (2), it operates on and after the day on which it is entered into.
(4) The Secretary may terminate or alter a debt payment arrangement:
(a) at the debtor’s request; or
(b) after giving 28 days’ notice to the debtor of the proposed termination or alteration; or
(c) without notice, if the Secretary is satisfied that the debtor has failed to disclose material information about the debtor’s true capacity to repay the debt.
190A Secretary may determine amounts to be deducted from instalments payable to debtor
(1) If a person owes a debt to the Commonwealth, the Secretary may determine that:
(a) the amount of the debt is to be deducted from an instalment that is payable to the person; or
(b) 2 or more specified amounts that in total equal the amount of the debt are to be deducted from 2 or more instalments that are payable to the person.
Note: The Secretary may deduct an amount from an instalment payable to the person in accordance with a determination made under this section (see section 69B).
(2) If the Secretary makes a determination under subsection (1), the Secretary may vary the determination to determine a different amount or amounts that are to be deducted from one or more instalments payable to the person.
(3) If an amount is deducted under section 69B from an instalment payable to a person in accordance with a determination as made or varied under this section, the debt due to the Commonwealth by the person is reduced by an amount equal to the amount of the deduction.
191 Deductions from instalments payable to another person
(1) This section applies if an amount is deducted under subsection 67(2) from an instalment payable to a PPL claimant or special PPL claimant for a child, if the deduction is for the purposes of the recovery of a debt due to the Commonwealth by another PPL claimant or special PPL claimant in relation to the same child.
(2) The debt due to the Commonwealth by that other PPL claimant or special PPL claimant is reduced by an amount equal to the amount of the deduction.
192 Recovery from an ADI
Payment into wrong account or payment for deceased person
(1) This section applies if:
(a) an instalment or a PPL funding amount is paid to an ADI for the credit of an account kept with the ADI in the name of a person or persons; and
(b) a debt that is recoverable by the Commonwealth under this Act arises (or such debts arise) because either:
(i) the payment was intended to be paid to someone other than the person, or those persons; or
(ii) the payment was intended to be paid to the person, or one of those persons, but the person for whom the payment was intended dies before the payment was made.
Notice to ADI requiring repayment and to deceased estate
(2) The Secretary may give a written notice to the ADI setting out the relevant matters referred to in paragraphs (1)(a) and (b) and requiring the ADI to pay to the Commonwealth, within a period (being a reasonable period) stated in the notice, the lesser of the following amounts:
(a) the amount of the instalment or PPL funding amount, as stated in the notice;
(b) the amount standing to the credit of the account when the notice is given to the ADI.
(3) If the notice relates to a payment to a person who has died, as soon as possible after issuing the notice, the Secretary must inform the deceased estate in writing of:
(a) the amount sought to be recovered from the deceased person’s account; and
(b) the reasons for the recovery action.
Offence for contravening notice
(4) A body corporate commits an offence if:
(a) the body is an ADI; and
(b) the body is given a notice under subsection (2); and
(c) the body refuses or fails to comply with the notice.
Penalty: 300 penalty units.
Amount recovered reduces debt
(5) Any amount recovered by the Commonwealth from an ADI under this section reduces the amount of a debt referred to in paragraph (1)(b).
192A No time limit on debt recovery action
For the purposes of this Part, legal proceedings, or any action under a provision of this Part, for the recovery of a debt may be commenced or taken at any time.
Division 6—Writing off debts
193 When debts can be written off
General
(1) The Secretary may, on behalf of the Commonwealth, decide to write off, for a stated period or otherwise, a debt that is due to the Commonwealth under this Act.
Note: Debts recoverable by the Commonwealth under this Act are provided for by the following provisions:
(a) Division 2 (which provides for the main debts recoverable under this Act);
(b) sections 176 and 186 (which provide for debts relating to interest and garnishee notices).
Write off conditions
(2) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
When a debt is irrecoverable
(3) For the purposes of paragraph (2)(a), a debt is taken to be irrecoverable at law if, and only if:
(a) the debt cannot be recovered under Division 5; or
(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c) the debtor is discharged from bankruptcy or administration and the debt was incurred before the debtor became bankrupt or entered into administration, and was not incurred by fraud; or
(d) the debtor has died leaving no estate or not enough funds in the debtor’s estate to repay the debt.
When a debtor has capacity to repay by deductions etc.
(4) For the purposes of paragraph (2)(b), a person is taken to have the capacity to repay a debt to which subsection (5) applies, unless recovery by those means would cause the person severe financial hardship.
(5) This subsection applies to a debt if it could be recovered by deduction or setting off in relation to a payment to which the debtor is entitled under another Act.
When write off comes into operation
(6) A decision under subsection (1) to write off a debt comes into operation:
(a) if no day is stated in the decision—on the day the decision is made; or
(b) if a day is stated in the decision—on the stated day (whether that day is before, after or on the day on which the decision is made).
Debt that has been written off may be recovered
(7) Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.
Division 7—Waiver of debts
194 Waiver of debts—general
(1) This Division applies to debts that are due to the Commonwealth under this Act.
Note: Debts recoverable by the Commonwealth under this Act are provided for by the following provisions:
(a) Division 2 (which provides for the main debts recoverable under this Act);
(b) sections 176 and 186 (which provide for debts relating to interest and garnishee notices).
(2) The Secretary may, on behalf of the Commonwealth, decide to waive the Commonwealth’s right to recover the whole or a part of a debt, but only if required or allowed to do so under another provision of this Division.
(3) A decision to waive the right to recover a debt (or a part of a debt) comes into operation:
(a) if no day is stated in the decision—on the day the decision is made; or
(b) if a day is stated in the decision—on the stated day (whether that day is before, after or on the day on which the decision is made).
195 Waiver of debts—administrative error
The Secretary must waive the right to recover so much of a debt as is attributable solely to an administrative error made by the Commonwealth, or an agent of the Commonwealth, if:
(a) the debtor received in good faith the payment or payments that gave rise to that proportion of the debt; and
(b) the debtor would suffer severe financial hardship if it were not waived.
196 Waiver of debts—arising from offence
The Secretary must waive the right to recover so much of a debt as arises from an offence, if:
(a) the debtor is convicted of the offence; and
(b) the court indicated in sentencing the debtor that it imposed a longer custodial sentence on the debtor because he or she was unable or unwilling to pay the debt.
197 Waiver of debts—small debts
(1) The Secretary must waive the right to recover a debt if:
(a) the debt is, or is likely to be, less than $200; and
(b) it is not cost effective for the Commonwealth to take action to recover the debt.
(2) Subsection (1) does not apply if the debt is at least $50 and could be recovered by deduction or setting off in relation to a payment to which the debtor is entitled under another Act.
198 Waiver of debts—settlement of civil actions
Settlement of civil action
(1) If the Commonwealth has agreed to settle a civil action against a debtor for recovery of a debt for less than the full amount of the debt, the Secretary must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.
Settlement of proceedings before the AAT
(2) If the Secretary has agreed to settle proceedings before the AAT relating to recovery of a debt on the basis that the debtor will pay less than the full amount of the debt, the Secretary must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.
Note: See section 263 (which deals with settlement of proceedings before the AAT).
Waiver where at least 80% of debt recovered and debtor cannot pay more
(3) If:
(a) the Commonwealth has recovered at least 80% of the original value of a debt from a debtor; and
(b) the Commonwealth and the debtor agree that the recovery is in full satisfaction for the whole of the debt; and
(c) the debtor cannot repay a greater proportion of the debt;
the Secretary must waive the right to recover the remaining 20% or less of the value of the original debt.
Agreement for part payment in satisfaction of outstanding debt
(4) If the Secretary and a debtor agree that the debtor’s debt will be fully satisfied if the debtor pays the Commonwealth an agreed amount less than the amount (the unpaid amount) of the debt outstanding when the agreement is made, the Secretary must, if the agreed amount is paid, waive the right to recover the difference between the unpaid amount and the agreed amount.
Limits on agreement to accept part payment in satisfaction of outstanding debt
(5) The Secretary must not make an agreement described in subsection (4) unless the Secretary is satisfied that the agreed amount is at least the present value of the unpaid amount if it is repaid in instalments of amounts, and at times, determined by the Secretary.
Working out present value of unpaid amount
(6) For the purposes of subsection (5), the present value of the unpaid amount is the amount worked out in accordance with the following formula:
where:
annual repayment is the amount of the debt that the Secretary believes would be recovered under Division 5 in a year if subsection (4) did not apply in relation to the debt.
rp (short for repayment period) is the number of years needed to repay the unpaid amount if repayments equal to the annual repayment were made each year.
settlement interest is an annual rate of interest prescribed for the purposes of this subsection by the PPL rules.
199 Waiver of debts—special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false or misleading statement or representation; or
(ii) failing or omitting to comply with a provision of this Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt (or part); and
(c) it is more appropriate to waive the debt (or part) than to write off the debt (or part).
200 Waiver of debts—determined classes
(1) The Secretary may, on behalf of the Commonwealth, decide to waive the Commonwealth’s right to recover debts (or parts of debts) that are included in a class of debts determined by the Minister by legislative instrument.
(2) A determination under subsection (1) may state:
(a) conditions to be met before the Secretary exercises the power to waive the debts (or parts); and
(b) limits on the amounts of the debts to be waived.
(3) A decision under subsection (1) comes into operation:
(a) if no day is stated in the decision—on the day the decision is made; or
(b) if a day is stated in the decision—on the stated day (whether before, after or on the day the decision is made).
Division 7A—Departure prohibition orders
Subdivision A—Secretary may make departure prohibition orders
200A Secretary may make departure prohibition orders
(1) The Secretary may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if:
(a) the person has one or more debts to the Commonwealth under this Act; and
(b) there are not arrangements satisfactory to the Secretary for the one or more debts to be wholly paid; and
(c) the Secretary believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i) having wholly paid the one or more debts; or
(ii) there being arrangements satisfactory to the Secretary for the one or more debts to be wholly paid.
Matters to be taken into account in making order
(2) Before making an order under this section, the Secretary must have regard to the following matters:
(a) the capacity of the person to pay the one or more debts;
(b) whether any action has been taken to recover any such debt, and the outcome of the recovery action;
(c) the length of time for which any such debt has remained unpaid after the day on which it became due and payable;
(d) such other matters as the Secretary considers appropriate.
Form of order
(3) A departure prohibition order must be in a form approved by the Secretary.
Debts under section 168 disregarded
(4) A debt that a person has under section 168 is to be disregarded for the purposes of this section.
Subdivision B—Departure from Australia of debtors prohibited
200B Departure from Australia of debtors prohibited
A person must not depart from Australia for a foreign country if:
(a) a departure prohibition order in respect of the person is in force, and the person knows that the order is in force, or is reckless as to whether the order is in force; and
(b) the person’s departure is not authorised by a departure authorisation certificate, and the person knows that the departure is not authorised by such a certificate, or is reckless as to whether the departure is authorised by such a certificate.
Penalty: Imprisonment for 12 months.
Subdivision C—Other rules for departure prohibition orders
200C Notification requirements for departure prohibition orders
(1) This section applies if the Secretary makes a departure prohibition order in respect of a person.
Notifying person of order
(2) The Secretary must notify the person that the order has been made.
(3) The notice must be in a form approved by the Secretary and must be given as soon as practicable after making the order.
Notifying other persons of order
(4) Unless the Secretary is satisfied that the person is an Australian citizen, the Secretary must give a copy of the order, and information likely to facilitate identification of the person, to the Secretary of the Department administered by the Minister administering the Migration Act 1958, for the purposes of administering that Act.
(5) The Secretary must also give a copy of the order, and information likely to facilitate identification of the person for the purposes of this Division, to such other persons as the Secretary considers appropriate in the circumstances, being persons prescribed by the PPL rules.
(6) The Secretary must give a copy of the order or information under subsection (4) or (5) as soon as practicable after making the order.
200D Operation of departure prohibition order
(1) A departure prohibition order comes into force when it is made, and continues in force until it is revoked, or until it is set aside by a court.
Note: Subdivision E deals with appeals to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) against the making of departure prohibition orders.
(2) However, a departure prohibition order in respect of a person is not in force during any period when a deportation order in respect of the person is in force under the Migration Act 1958.
200E Revocation and variation of departure prohibition orders
(1) The Secretary must revoke a departure prohibition order in respect of a person if:
(a) the person no longer has any debts to the Commonwealth under this Act; or
(b) there are arrangements satisfactory to the Secretary for the one or more debts the person has to the Commonwealth under this Act to be wholly paid; or
(c) the Secretary is satisfied that the one or more debts the person has to the Commonwealth under this Act are completely irrecoverable.
(2) The Secretary may revoke or vary a departure prohibition order in respect of a person if the Secretary considers it desirable to do so.
(3) A revocation or variation, under this section, of a departure prohibition order may be:
(a) on application by the person in a form approved by the Secretary; or
(b) on the Secretary’s own initiative.
Debts under section 168 disregarded
(4) A debt that a person has under section 168 is to be disregarded for the purposes of this section.
200F Notification requirements for revocations and variations
(1) If the Secretary revokes or varies a departure prohibition order in respect of a person, the Secretary must give notice of the revocation or variation to:
(a) the person; and
(b) each person to whom a copy of the departure prohibition order was given under subsection 200C(4) or (5).
(2) If:
(a) a person makes an application under paragraph 200E(3)(a) for the revocation or variation of a departure prohibition order; and
(b) the Secretary refuses to revoke or vary the order;
the Secretary must give notice of the refusal to the person.
(3) A notice under this section must be in a form approved by the Secretary and must be given as soon as practicable after the decision concerned is made.
Subdivision D—Departure authorisation certificates
200G Application for departure authorisation certificate
(1) A person in respect of whom a departure prohibition order is in force may apply for a certificate (a departure authorisation certificate) authorising the person to depart from Australia for a foreign country.
(2) The application must be in a form approved by the Secretary.
200H When Secretary must issue departure authorisation certificate
(1) This section applies if a person makes an application under section 200G for a departure authorisation certificate.
(2) The Secretary must issue the departure authorisation certificate if the Secretary is satisfied:
(a) that, if the certificate is issued:
(i) it is likely that the person will depart from Australia and return to Australia within a period that the Secretary considers appropriate; and
(ii) it is likely that, within a period that the Secretary considers appropriate, the Secretary will be required by subsection 200E(1) to revoke the departure prohibition order in respect of the person; and
(b) that it is not necessary for the person to give security under section 200J for the person’s return to Australia.
(3) If the Secretary is not satisfied as mentioned in subsection (2), the Secretary must issue the departure authorisation certificate if:
(a) the person has given security under section 200J for the person’s return to Australia; or
(b) if the person is unable to give such security, the Secretary is satisfied:
(i) that the certificate should be issued on humanitarian grounds; or
(ii) that refusing to issue the certificate will be detrimental to Australia’s interests.
200J Security for person’s return to Australia
(1) A person may give such security as the Secretary considers appropriate by bond, deposit or any other means, for the person’s return to Australia by such day as is agreed by the person and the Secretary and is specified in the departure authorisation certificate.
(2) The Secretary may substitute a later day for the day mentioned in subsection (1):
(a) on application by the person in a form approved by the Secretary; or
(b) on the Secretary’s own initiative.
(3) The Secretary may refuse an application by a person to substitute a later day if:
(a) the person refuses to increase the value of the security already given to a level that the Secretary considers appropriate; or
(b) the person refuses to give such further security as the Secretary considers appropriate; or
(c) the Secretary considers that it would not be appropriate to substitute the later day.
200K What departure authorisation certificate must authorise
(1) A departure authorisation certificate in respect of a person must authorise the departure of the person on or before the seventh day after a day specified in the certificate.
(2) The day specified in the certificate must be a day that is after the day on which the certificate is issued, but not more than 7 days after that day.
200L Notification requirements for departure authorisation certificates
(1) If the Secretary issues a departure authorisation certificate in respect of a person, the Secretary must, as soon as practicable, give a copy of the certificate to:
(a) the person; and
(b) each person to whom a copy of the departure prohibition order in respect of the person was given under subsection 200C(4) or (5).
(2) If:
(a) a person makes an application under section 200G for a departure authorisation certificate; and
(b) the Secretary refuses to issue the certificate;
the Secretary must give notice of the refusal to the person.
(3) The notice must be in a form approved by the Secretary and must be given as soon as practicable after the refusal.
200M Notification requirements for substituted days
(1) If, under section 200J, the Secretary substitutes a later day for a person’s return to Australia, the Secretary must give notice of that decision to:
(a) the person; and
(b) each person to whom a copy of the departure prohibition order in respect of the person was given under subsection 200C(4) or (5).
(2) If:
(a) a person makes an application under paragraph 200J(2)(a) to substitute a later day for the person’s return to Australia; and
(b) the Secretary refuses the application;
the Secretary must give notice of the refusal to the person.
(3) A notice under this section must be in a form approved by the Secretary and must be given as soon as practicable after the decision concerned is made.
Subdivision E—Appeals and review in relation to departure prohibition orders and departure authorisation certificates
200N Appeals to courts against making of departure prohibition orders
(1) A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) against the making of the order.
(2) This section has effect subject to Chapter III of the Constitution.
200P Jurisdiction of courts
The jurisdiction of a court under section 200N must be exercised by a single Judge.
200Q Orders of court on appeal
A court hearing an appeal under section 200N against the making of a departure prohibition order may, in its discretion:
(a) make an order setting aside the order; or
(b) dismiss the appeal.
200R Review of decisions
(1) Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Secretary under section 200E, 200H or 200J.
(2) Despite any provision of Chapter 5, that Chapter does not apply in relation to any decision of the Secretary under this Division.
Subdivision F—Enforcement
200S Powers of officers of Customs and members of the Australian Federal Police
(1) This section applies if an officer (within the meaning of the Customs Act 1901), or a member of the Australian Federal Police, believes on reasonable grounds that:
(a) a person is about to depart from Australia for a foreign country; and
(b) a departure prohibition order in respect of the person is in force; and
(c) the person’s departure is not authorised by a departure authorisation certificate.
(2) The officer or member may:
(a) take such steps as are reasonably necessary to prevent the person’s departure, including, but not limited to, steps to prevent the person going on board, or to remove the person from, a vessel or aircraft in which the officer or member believes on reasonable grounds the departure will take place; and
(b) require the person to answer questions or produce documents to the officer or member for the purposes of working out whether:
(i) a departure prohibition order in respect of the person is in force; and
(ii) if such an order in respect of the person is in force—whether the person’s departure is authorised by a departure authorisation certificate.
(3) A person commits an offence if:
(a) the person is subject to a requirement under paragraph (2)(b); and
(b) the person refuses or fails to comply with the requirement.
Penalty: 30 penalty units.
(4) Subsection (3) does not apply if the person answers the question or produces the document to the extent that the person is capable of answering the question or producing the document.
Note: A defendant bears an evidential burden in relation to the matters mentioned in subsection (4): see subsection 13.3(3) of the Criminal Code.
200T Privilege against self‑incrimination
(1) An individual is not excused from answering a question, or producing a document, under paragraph 200S(2)(b) on the ground that the answer to the question or the production of the document might tend to incriminate the individual or expose the individual to a penalty.
(2) However:
(a) the answer given or document produced; and
(b) answering the question or producing the document; and
(c) any information, document or thing obtained as a direct or indirect consequence of the answering of the question or producing the document;
are not admissible in evidence against the individual in any criminal proceedings, other than proceedings under section 137.1 or 137.2 of the Criminal Code in relation to answering the question or producing the document.
200U Production of authority to depart
(1) If:
(a) a departure prohibition order in respect of a person is in force; and
(b) the person is about to depart from Australia for a foreign country; and
(c) the person’s departure is authorised by a departure authorisation certificate;
an officer (within the meaning of the Customs Act 1901), or a member of the Australian Federal Police, may request the person to give a copy of the certificate to the officer or member for inspection.
(2) A person commits an offence of strict liability if:
(a) an officer (within the meaning of the Customs Act 1901), or a member of the Australian Federal Police, has made a request of the person under subsection (1); and
(b) the person refuses or fails to comply with the request.
Penalty for contravention of this subsection: 5 penalty units.
Subdivision G—Interpretation
200V Interpretation—departure from Australia for foreign country
A reference in this Division to the departure of a person from Australia for a foreign country is a reference to the departure of the person from Australia for a foreign country, whether or not the person intends to return to Australia.
200W Meaning of Australia
For the purposes of this Division, Australia, when used in a geographical sense, includes the external Territories.
Division 8—Miscellaneous
201 Overseas application of debts
The operation of a provision creating a debt under this Part (except for section 171) extends to:
(a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and
(b) all persons, irrespective of their nationality or citizenship.
Note: Section 171 provides for debts under the Data‑matching Program (Assistance and Tax) Act 1990.
201A Debts arising from civil penalty orders
This Part does not apply to a debt arising from a civil penalty order under the Regulatory Powers Act.
Chapter 5—Review of decisions
Note: This Chapter does not apply in relation to:
(a) any decision of the Secretary under Division 7A of Part 4‑3 (about departure prohibition orders); or
(b) any decision of the Commissioner of Taxation under Chapter 3A (about PPL superannuation contributions).
Part 5‑1—Internal review of decisions
Division 1—Guide to this Part
202 Guide to this Part
This Part is about the internal review of decisions of officers under this Act.
Division 2 sets out 3 kinds of internal review of those decisions.
The first kind of review is where the Secretary, on his or her own initiative, reviews those decisions.
The second kind of review is where a person whose interests are affected by certain decisions (which are “claimant decisions”) applies for internal review of the decision.
The third kind of review is where an employer applies for internal review of certain decisions that affect the employer (those decisions are “employer determination decisions” and “employer funding amount decisions”). Employer determination decisions can only be reviewed on application, and not on the Secretary’s own initiative.
Division 2—Internal review of decisions
203 Internal review—own‑initiative review by Secretary
(1) The Secretary may, on his or her own initiative, review a decision of an officer under this Act if the Secretary is satisfied that there is enough reason to review the decision.
(2) However, the Secretary must not, on his or her own initiative, review a decision of an officer under section 101 to make an employer determination.
Note 1: An employer may apply for review of a decision to make an employer determination (see section 207).
Note 2: For revocation of employer determinations, see section 108.
(3) The Secretary may review a decision:
(a) whether or not any person has applied for review of the decision; and
(b) even though an application has been made to the AAT for review of the decision.
(4) On review of a decision, the Secretary may:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
(5) A reference in subsection (1) to a decision of an officer under this Act includes a reference to a determination that the Secretary is taken, because of a provision of this Act, to have made.
204 Internal review—own‑initiative review and tribunal review
The Secretary must give the Registrar of the AAT written notice of a decision under subsection 203(4) if, when the Secretary makes the decision, an application has been made to the AAT for review in relation to the decision that was reviewed by the Secretary.
205 Internal review—review following application
(1) If an application is made under section 206, 207 or 208 for review of a decision, the Secretary or an authorised review officer must:
(a) review the decision; and
(b) do one of the following:
(i) affirm the decision;
(ii) vary the decision;
(iii) set the decision aside and substitute a new decision.
(2) However, an authorised review officer must not, under subsection (1), review a decision relating to the exercise of the Secretary’s power under section 263 (settlement of proceedings before the AAT).
206 Internal review—application for review of claimant decision
Claimant decisions
(1) This section applies to a decision of an officer under this Act, unless the decision is:
(a) a decision under Part 3‑2 (which deals with the payment of instalments by employer); or
(b) a decision under Part 3‑5 (which deals with employer determinations); or
(ba) a decision under Chapter 3A (which deals with PPL superannuation contributions); or
(c) a decision under Part 4‑2 (which deals with compliance); or
(d) a decision under the PPL rules, if the PPL rules state that this section does not apply to the decision; or
(e) a decision under the regulations, if the regulations state that this section does not apply to the decision.
(2) A reference in subsection (1) to a decision of an officer under this Act includes a reference to a determination that the Secretary is taken, because of a provision of this Act, to have made.
(3) A decision to which this section applies is a claimant decision.
Application for review
(4) A person whose interests are affected by a claimant decision may apply to the Secretary for review of the decision, unless the decision was made personally by a PPL agency representative.
(5) An application under subsection (4) may only be made:
(a) within 28 days after the day the decision was made; or
(b) if the Secretary is satisfied that a longer period should apply—within the longer period.
(6) A person cannot make an application under subsection (4) in the person’s capacity as an employer.
207 Internal review—application for review of employer determination decision
Scope
(1) This section applies to a decision (an employer determination decision) of an officer under section 101 to make an employer determination.
(2) A reference in subsection (1) to a decision of an officer includes a reference to a determination that the Secretary is taken, because of a provision of this Act, to have made.
Application
(3) An employer may apply, in writing, to the Secretary for review of an employer determination decision that relates to the employer and a person if the employer believes that:
(a) both:
(i) a condition in paragraph 101(1)(b) or (c) is not satisfied in relation to the employer determination; and
(ii) the employer has not made an election under section 109 that applies to the person; or
(b) a condition in paragraph 101(1)(d), (da) or (e) is not satisfied in relation to the employer determination.
Note 1: The conditions in paragraphs 101(1)(b) to (e) relate to the employment by an employer of someone to whom parental leave pay is payable.
Note 2: Section 109 allows an employer to elect to pay instalments to an employee, a class of employees or all employees of the employer. Subsection 101(2) deals with the application of paragraphs 101(1)(b) and (c) if the employer has made an election under section 109 that applies to the person.
(4) However, the employer cannot make an application under subsection (3) for review of an employer determination decision that was made personally by a PPL agency representative.
(5) An application under subsection (3) may only be made within the 14 day period referred to in section 103.
Note: Section 103 requires an employer for which an employer determination has been made to, within a 14 day period, either provide a notice to the Secretary accepting the determination or apply for review of the employer determination.
(6) An application under subsection (3) must:
(a) specify the condition or conditions that the employer believes are not satisfied; and
(b) if paragraph (3)(a) applies to the application—state whether the employer believes that an election under section 109 applies to the person; and
(c) be signed by a person authorised by the employer; and
(d) be accompanied by:
(i) documentary evidence supporting the application; or
(ii) if the applicant is unable to provide documentary evidence—a statutory declaration supporting the application.
(7) The disclosure of personal information (within the meaning of the Privacy Act 1988) for the purposes of making an application under subsection (3) is taken to be authorised by this Act for the purposes of:
(a) the Privacy Act 1988; and
(b) any provision of a law of a State or a Territory that provides that personal information may be used or disclosed if the use or disclosure is authorised by law.
208 Internal review—application for review of employer funding amount decision
Scope
(1) This section applies to a decision of an officer under section 75 to pay a PPL funding amount to an employer.
(2) A reference in subsection (1) to a decision of an officer includes a reference to a determination that the Secretary is taken, because of a provision of this Act, to have made.
(3) A decision to which this section applies is an employer funding amount decision.
Application
(4) An employer may apply, in writing, to the Secretary for review of an employer funding amount decision that relates to the employer if:
(a) the employer believes that the Secretary has contravened subsection 75(3) in relation to the decision; and
(b) the decision was not made personally by a PPL agency representative.
Note: Subsection 75(3) requires the Secretary to pay a PPL funding amount to an employer within a certain time.
(5) An application under subsection (4) must be signed by a person authorised by the employer.
(6) An application under subsection (4) in relation to a PPL funding amount may only be made within 14 days after the second payroll cut‑off referred to in subsection 75(3) in relation to the PPL funding amount.
209 Internal review—withdrawal of application
(1) A person or an employer who has applied to the Secretary for review of a decision may withdraw the application at any time before the review has been completed.
(2) If an application for review of a decision, other than an application under section 207 (which deals with application for review of employer determination decisions), is withdrawn, the application is taken never to have been made.
(3) An application may be withdrawn orally or in writing or in any other manner approved by the Secretary.
210 Internal review—when decision made on review comes into force
(1) A decision under subsection 203(4) or paragraph 205(1)(b) (the review decision) to vary a decision or to set aside a decision and substitute a new decision comes into force on the day that would give full effect to the review decision.
(2) However, a decision comes into force immediately on the giving of the decision if it is a decision under subsection 203(4) or paragraph 205(1)(b) to:
(a) vary an employer determination decision or an employer funding amount decision; or
(b) set aside an employer determination decision or an employer funding amount decision and substitute a new decision.
211 Internal review—notice of decision on review of claimant decision
Scope
(1) This section applies if a person (the decision‑maker) makes a decision under subsection 203(4) or paragraph 205(1)(b) in relation to a claimant decision.
Notice
(2) The decision‑maker must give written notice of the decision to:
(a) any natural person (other than an employer) if the decision‑maker is satisfied that his or her interests are affected by the decision; and
(b) for a decision under paragraph 205(1)(b) in response to an application—the applicant.
(3) If the decision relates to a child, the decision‑maker must also give written notice of the decision to:
(a) any natural person who has made a claim in relation to the child; and
(b) any natural person who has notified the Secretary that he or she intends to make a claim in relation to the child, if the decision‑maker is satisfied that the claim has or would have a reasonable prospect of success.
(4) A notice under subsection (2) or (3) given to a person in relation to a decision must include a statement to the effect that the person may, subject to this Act and the AAT Act, apply to the AAT for review of the decision.
(5) Subsection (4) does not apply in relation to a decision referred to in subsection 215(2).
Note: Subsection 215(2) excludes certain claimant decisions from AAT review.
(6) A notice under subsection (2) or (3) given to a particular person in relation to a decision may also, if the decision‑maker considers it appropriate, include a statement that does one or more of the following, in whole or in part:
(a) sets out the reasons for the decision;
(b) sets out the findings by the decision‑maker on material questions of fact;
(c) refers to the evidence or other material on which those findings were based.
212 Internal review—notice of decision relating to employer
Scope
(1) This section applies if a person (the decision‑maker) makes a decision under subsection 203(4) or paragraph 205(1)(b) in relation to:
(a) an employer funding amount decision; or
(b) any other decision under Part 3‑2 (which deals with payment of instalments by employers); or
(c) an employer determination decision; or
(d) any other decision under Part 3‑5 (which deals with employer determinations); or
(e) a decision under Part 4‑2 (which deals with compliance); or
(f) any other decision under this Act that directly affects the interests of an employer.
(2) To avoid doubt, paragraph (1)(f) does not apply to a decision if the only effect of the decision on the interests of an employer is that the decision could result in an employer determination for the employer being made, varied, set aside or revoked.
Notice
(3) The decision‑maker must give written notice of the decision to the employer concerned.
(4) The notice must include a statement that:
(a) sets out the reasons for the decision; and
(b) sets out the findings by the decision‑maker on material questions of fact; and
(c) refers to the evidence or other material on which those findings were based.
(5) A notice in relation to a decision referred to in paragraph (1)(a) or (1)(c) must include a statement to the effect that the employer may, subject to this Act and the AAT Act, apply to the AAT for review of the decision.
Part 5‑2—AAT first review of certain decisions
Division 1—Guide to this Part
213 Guide to this Part
This Part is about the review by the Administrative Appeals Tribunal of decisions that have been internally reviewed under Part 5‑1, and of decisions made personally by particular PPL agency representatives (which are not subject to internal review). These reviews are called AAT first reviews.
AAT first review is available for certain claimant decisions (called AAT reviewable claimant decisions). People whose interests are affected by AAT reviewable claimant decisions may apply for AAT first review of those decisions.
AAT first review is also available for certain employer determination decisions and employer funding amount decisions (called AAT reviewable employer decisions). Employers may apply for AAT first review of AAT reviewable employer decisions.
The rules relating to review by the AAT are mainly in the AAT Act, but this Part modifies the operation of that Act in some ways for the purposes of AAT first reviews.
Division 2—AAT first review of claimant decisions
215 Application of this Division
(1) This Division applies to the following decisions:
(a) if a claimant decision has been affirmed under paragraph 203(4)(a) or subparagraph 205(1)(b)(i)—the claimant decision as affirmed;
(b) if a claimant decision has been varied under paragraph 203(4)(b) or subparagraph 205(1)(b)(ii)—the claimant decision as varied;
(c) if a claimant decision has been set aside under paragraph 203(4)(c) or subparagraph 205(1)(b)(iii) and substituted with a new decision—the new decision;
(d) a claimant decision made personally by a PPL agency representative.
(2) However, this Division does not apply to any of the following decisions:
(a) a decision under one of the following provisions (which deal with the making of claims, the form and manner of claims, the form and manner of notices etc.):
(i) subsection 18(4);
(ii) paragraph 25(1)(c);
(iii) subsections 53(2), (3) and (4);
(iv) section 56;
(v) subsection 61(2);
(va) subsection 82(2A);
(vi) paragraph 109(2)(a);
(vii) subsection 110(1);
(viii) paragraph 120(2)(a);
(ix) subsection 125(4);
(x) paragraph 286(2)(b);
(xi) paragraph 288(2)(b);
(xii) paragraph 289(2)(b);
(xiii) subsection 289(5);
(b) a decision under subsection 69(2) (which deals with deductions relating to child support);
(c) a decision under Subdivision A of Division 2 of Part 4‑1 (which deals with gathering information from any person);
(d) a decision relating to the Secretary’s power under section 263 to settle proceedings before the AAT;
(e) a decision under the PPL rules, if the PPL rules state that this Division does not apply to the decision;
(f) a decision under the regulations, if the regulations state that this Division does not apply to the decision.
(3) A decision to which this Division applies is an AAT reviewable claimant decision.
216 AAT first review of claimant decision—application for review
(1) An application may be made to the AAT for review (AAT first review) of an AAT reviewable claimant decision.
(2) However, a person cannot make an application referred to in subsection (1) in the person’s capacity as an employer.
(3) Nor can a person, in the person’s capacity as an employer, apply to be a party to the review proceedings, despite subsection 30(1A) of the AAT Act.
Note: Subsection 30(1A) of the AAT Act allows persons whose interests are affected by a decision to apply to be a party to the review proceedings.
Division 3—AAT first review of employer decisions
223 Application of this Division
(1) This Division applies to the following decisions:
(a) if an employer determination decision or an employer funding amount decision has been affirmed under Part 5‑1—the decision as affirmed;
(b) if an employer determination decision or an employer funding amount decision has been varied under Part 5‑1—the decision as varied;
(c) if an employer determination decision or an employer funding amount decision has been set aside and substituted with a new decision under Part 5‑1—the new decision;
(d) an employer determination decision or an employer funding amount decision made personally by a PPL agency representative.
Note: Part 5‑1 deals with internal review.
(2) A decision to which this Division applies is an AAT reviewable employer decision.
224 AAT first review of employer decision—application for review
(1) An application may be made by an employer to the AAT for review (AAT first review) of an AAT reviewable employer decision that relates to the employer.
(2) However, if the AAT reviewable employer decision is an employer determination decision that relates to the employer and a person, an application referred to in subsection (1) may only be made if the employer believes that:
(a) both:
(i) a condition in paragraph 101(1)(b) or (c) is not satisfied in relation to the employer determination; and
(ii) the employer has not made an election under section 109 that applies to the person; or
(b) a condition in paragraph 101(1)(d), (da) or (e) is not satisfied in relation to the employer determination.
Note 1: The conditions in paragraphs 101(1)(b) to (e) relate to the employment by an employer of someone to whom parental leave pay is payable.
Note 2: Section 109 allows an employer to elect to pay instalments to an employee, a class of employees or all employees of the employer. Subsection 101(2) deals with the application of paragraphs 101(1)(b) and (c) if the employer has made an election under section 109 that applies to the person.
(3) An application referred to in subsection (1):
(a) must be made in writing; and
(b) must be accompanied by a statutory declaration verifying the application; and
(c) if the application is for review of an employer determination decision—must:
(i) specify the condition or conditions that the employer believes are not satisfied; and
(ii) if paragraph (2)(a) applies to the application—state whether the employer believes that an election under section 109 applies to the person.
(4) An application referred to in subsection (1) may only be made within 14 days after the day on which the AAT reviewable employer decision was made.
(5) Paragraph (3)(a) and subsection (4) apply despite:
(a) subparagraph 29(1)(a)(ii) of the AAT Act (which deals with oral applications for review); and
(b) paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act (which deal with when applications for review may be made).
Division 4—Other matters relating to AAT first reviews
224A Person who made the decision
For the purposes of AAT first review of a decision, a reference in the AAT Act to the person who made the decision is taken to be a reference to:
(a) the Secretary; and
(b) either of the following, if applicable:
(i) if the decision was made by the Chief Executive Centrelink or an APS employee in the Human Services Department—the Chief Executive Centrelink;
(ii) if the decision was made by the Chief Executive Medicare—the Chief Executive Medicare.
225 Operation and implementation of decision under AAT first review
Subsection 41(2) of the AAT Act does not apply in relation to an application for AAT first review.
Note: Under subsection 41(2) of the AAT Act the AAT may make an order staying or otherwise affecting the operation or implementation of the decision on review.
226 Variation of original decision after application is made for AAT first review
(1) If an officer varies or substitutes a decision after an application has been made for AAT first review of the decision, the application is taken to be an application for AAT first review of the decision as varied or substituted.
(2) If the person who made the application does not want the AAT to review the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.
227 Procedure on receipt of application for AAT first review
(1) The AAT may, in relation to an application for AAT first review, request the Secretary to lodge with the AAT the statement and other documents referred to in subsection 37(1) of the AAT Act before the end of the period that otherwise applies under that subsection.
(2) If the AAT does so, the Secretary must take reasonable steps to comply with the request.
(3) Nothing in this section prevents the operation of subsection 37(1A) of the AAT Act (which allows the AAT to shorten the deadline for lodging documents).
230 AAT’s power to obtain information for AAT first review
(1) If the AAT reasonably believes that a person has information that is relevant to an AAT first review and the person is not a party to that review, the AAT may, by written notice given to the person, require the person to give to the AAT, within the period and in the manner specified in the notice, any such information.
Note: Section 40A of the AAT Act deals with the AAT’s power to summon a person to give evidence or produce documents.
(2) A person commits an offence if:
(a) the AAT gives the person a notice under subsection (1); and
(b) the person fails to comply with the notice.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(3) Subsection (2) does not apply if complying with the notice might tend to incriminate the person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
231 AAT may require Secretary to obtain information for AAT first review
(1) If the AAT reasonably believes that a person will be able to give information, or produce a document, that is relevant to an AAT first review, the AAT may, for the purposes of the review, request the Secretary to exercise the Secretary’s powers under section 117 (which deals with the Secretary’s general power to obtain information).
(2) The Secretary must comply with a request under subsection (1) as soon as practicable and, in any event, within 7 days after the request is made.
(3) Section 116A does not apply to the Secretary when complying with a request under subsection (1).
232 Hearing of AAT first review in private
(1) The hearing of an AAT first review must be in private.
(2) The AAT may give directions, in writing or otherwise, as to the persons who may be present at any hearing of an AAT first review.
(3) In giving directions, the AAT must have regard to the wishes of the parties and the need to protect their privacy.
(4) Subsections 35(1) and (2) of the AAT Act do not apply in relation to the hearing of an AAT first review.
Note: Subsections 35(1) and (2) of the AAT Act deal with when hearings of proceedings in the AAT are in public or private.
233 Costs of AAT first review
(1) Subject to subsection (4), a party to an AAT first review must bear any expenses incurred by the party in relation to the review.
(2) The AAT may determine that the Commonwealth is to pay the reasonable costs that are:
(a) incurred by a party for travel and accommodation in relation to an AAT first review; and
(b) specified in the determination.
(3) If the AAT arranges for the provision of a medical service in relation to a party to an AAT first review, the AAT may determine that the Commonwealth is to pay the costs of the provision of the service.
(4) If the AAT makes a determination under subsection (2) or (3), the costs to which the determination relates are payable by the Commonwealth.
234 When AAT decision on AAT first review comes into force
Claimant decision
(1) A decision of the AAT on AAT first review:
(a) to vary an AAT reviewable claimant decision; or
(b) to set aside an AAT reviewable claimant decision and substitute a new decision;
comes into force on the day that would give full effect to the decision of the AAT.
Employer decision
(2) A decision of the AAT on AAT first review:
(a) to vary an AAT reviewable employer decision; or
(b) to set aside an AAT reviewable employer decision and substitute a new decision;
comes into force immediately on the giving of the decision.
AAT Act
(3) Subsections (1) and (2) apply despite subsection 43(6) of the AAT Act (which deals with when AAT decisions take effect).
235 Notification of decisions and reasons for AAT first review
(1) If, on AAT first review of a decision, the AAT makes a decision under subsection 43(1) of the AAT Act to affirm the decision under review, the AAT must, within 14 days of making its decision:
(a) give a written notice to the parties that sets out the decision; and
(b) either:
(i) give reasons for the decision orally to the parties and explain that they may request a written statement of reasons; or
(ii) give the parties a written statement of reasons for the decision.
(2) If, on AAT first review of a decision, the AAT makes a decision under subsection 43(1) of the AAT Act that is other than to affirm the decision under review, the AAT must, within 14 days of making its decision:
(a) give a written notice to the parties that sets out the decision; and
(b) give the parties a written statement of reasons for the decision.
(3) A failure to comply with subsection (1) or (2) does not affect the validity of the decision.
(4) A party to whom oral reasons are given may, within 14 days after the oral reasons are given, request a written statement of reasons for the decision. If the party does so, the AAT must give the party the statement requested within 14 days after receiving the request.
(5) Subsections 43(2) and (2A) of the AAT Act do not apply in relation to an AAT first review. However, any written statement of reasons given must comply with subsection 43(2B) of that Act.
Note: Subsections 43(2), (2A) and (2B) of the AAT Act are about the AAT giving reasons for its decisions.
Part 5‑3—AAT second review of claimant decisions
Division 1—Guide to this Part
236 Guide to this Part
This Part is about review by the Administrative Appeals Tribunal of a decision made by the Tribunal on AAT first review of a claimant decision. These reviews are called AAT second reviews.
AAT second review is only available in relation to claimant decisions—it is not available in relation to employer decisions.
The rules relating to review by the AAT are mainly in the AAT Act, but this Part modifies the operation of that Act in some ways for the purposes of AAT second reviews.
The AAT Act allows a person to appeal to a court on a question of law from a decision of the AAT on AAT second review.
Division 2—Applications for AAT second review
237 Applications for AAT second review
(1) An application may be made to the AAT for review (AAT second review) of a decision of the AAT under subsection 43(1) of the AAT Act on AAT first review in relation to a claimant decision.
(2) For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a) if the AAT affirmed a claimant decision—that decision as affirmed; and
(b) if the AAT varied a claimant decision—that decision as varied; and
(c) if the AAT set a claimant decision aside and substituted a new decision—the new decision; and
(d) if the AAT set a claimant decision aside and sent the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT—the directions or recommendations of the AAT.
(3) An application referred to in subsection (1) may not be made by a person in the person’s capacity as an employer.
Division 3—Matters relating to AAT second review
238 Application of this Division
This Division applies if an application referred to in section 237 for AAT second review is made.
240 Parties to an AAT second review
The AAT Act applies to the application as if the reference in paragraph 30(1)(b) of the AAT Act to the person who made the decision were a reference to each person who was a party to the AAT first review (other than the person who made the application for AAT second review).
241 Operation and implementation of the AAT decision on AAT second review
(1) The AAT Act applies to the application as if the reference in subsection 41(2) of the AAT Act to the decision to which the relevant proceeding relates were a reference to:
(a) if, on AAT first review, the AAT affirmed the original decision—the original decision; and
(b) otherwise—both the original decision and whichever of the following is applicable in relation to the AAT first review:
(i) the original decision as varied by the AAT;
(ii) the decision substituted by the AAT;
(iii) the decision made as a result of reconsideration by the Secretary in accordance with any directions or recommendations of the AAT.
(2) For the purposes of subsection (1), the original decision is the decision that was the subject of the AAT first review.
(3) The AAT Act applies to the application as if references in subsections 41(4) and (5) of the AAT Act to the person who made the decision to which the relevant proceeding relates were references to each party to the relevant AAT first review.
242 Variation of original decision after application is made for AAT second review
(1) If an officer varies or substitutes a decision after an application has been made for AAT second review in relation to the decision:
(a) the AAT is taken, on AAT first review, to have varied or substituted the decision under review in the way the officer did; and
(b) the application is taken to be an application for AAT second review of the decision as varied or substituted.
(2) If the person who made the application does not want a review of the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.
243 Failure of party to appear
The AAT Act applies to the application as if the reference in subsection 42A(2) of the AAT Act to the person who made the decision were a reference to the Secretary.
Part 5‑4—Other matters relating to review
Division 1—Guide to this Part
270 Guide to this Part
This Part contains miscellaneous provisions relating to reviews.
Division 2—Other matters relating to review
271 Authorised review officers
The Secretary may, in writing, authorise an officer to be an authorised review officer for the purposes of this Act.
272 Review body may determine events to have happened, or not to have happened
(1) This section applies if the Secretary or the AAT (the review body) is reviewing a decision for the purposes of this Chapter.
(2) If the review body is satisfied that an event did not happen that would have happened if the decision had not been made, the review body may, if satisfied that it is reasonable to do so, determine that this Act is to apply as if the event had happened.
(3) If the review body is satisfied that an event happened that would not have happened if the decision had not been made, the review body may, if satisfied that it is reasonable to do so, determine that this Act is to apply as if the event had not happened.
273 Certain income test determinations not to be changed on review
(1) This section applies to a review being done for the purposes of this Chapter by an officer or the AAT (the review body) if:
(a) the review involves (wholly or partly) a review of a decision (the decision being reviewed) that:
(i) a person is or is not eligible for parental leave pay; or
(ii) parental leave pay is or is not payable to a person; and
(b) the review has involved (wholly or partly) the consideration of a determination (the income determination) that the person satisfies the income test; and
(c) the income determination was taken into account in the making of a decision that parental leave pay is payable to the person; and
(d) the person did not knowingly make a false or misleading representation or provide false or misleading information or documents to the Secretary or the AAT in relation to the income determination.
Note: For the income test, see section 37.
(2) Despite any provision of this Chapter or of the AAT Act, the review body must not vary the decision being reviewed, or set aside the decision being reviewed and substitute a new decision, in a way that has the effect of:
(a) varying the income determination so that the person is taken not to have satisfied the income test; or
(b) substituting a new determination that the person did not satisfy the income test.
273A Settlement of proceedings before the AAT
(1) The Secretary may agree, in writing, with other parties to settle proceedings before the AAT if the proceedings are an AAT first review or AAT second review and they relate to the recovery of a debt.
(2) If proceedings are settled and the Secretary gives the AAT a copy of the agreement to settle the proceedings, the application for review of the decision the subject of the proceedings is taken to have been dismissed.
Chapter 6—Miscellaneous
Part 6‑1—How this Act applies in particular circumstances
Division 1—Guide to this Part
274 Guide to this Part
This Part has rules that modify this Act so that it applies correctly in 3 limited kinds of cases—adoption, claims made in exceptional circumstances etc. and Commonwealth employment.
Division 2 modifies this Act so that it applies correctly for adopted children aged under 16. For example, where a provision of this Act refers to the day a child was born, Division 2 modifies that provision so that, when applying that provision to the adopted child, the provision has the effect of referring to the day the adopted child becomes entrusted to care (instead of the day the adopted child was born).
Division 3 modifies this Act so that it applies correctly for claims that are made in exceptional circumstances and other special cases. For example, where a provision of this Act refers to the day a child was born, Division 3 modifies that provision so that, when applying that provision in relation to a claim that is made in exceptional circumstances, the provision has the effect of referring to the day the claimant became the child’s primary carer (instead of the day the child was born).
Division 4 modifies this Act so that it applies correctly to Commonwealth employment.
Division 2—How this Act applies to an adopted child
275 How this Act applies to an adopted child
(1) This Act applies in relation to an adopted child that satisfies the requirements of subsection (2) as if:
(a) a reference to the birth of a child were a reference to the placement of the child; and
(b) a reference to the day the child was born were a reference to the day the child becomes entrusted to the care of a person as mentioned in subsection (2); and
(c) a reference to the expected date of birth of the child were a reference to the day expected to be the day the child will become entrusted to the care of a person as mentioned in subsection (2); and
(d) a reference to a child’s first birthday were a reference to the first anniversary of the day the child became entrusted to the care of a person as mentioned in subsection (2); and
(da) a reference to a child’s second birthday were a reference to the second anniversary of the day the child became entrusted to the care of a person as mentioned in subsection (2); and
(e) a reference to a completed birth verification form for a child were a reference to information required by the Secretary about the adoption of the child; and
(f) a reference to a child being born during the same multiple birth were a reference to the child being adopted during the same multiple adoption.
When a child satisfies this subsection
(2) A child satisfies the requirements of this subsection if:
(a) the child becomes, or is to become, entrusted (within the meaning of the Family Assistance Act) to the care of the person; and
(b) it is an authorised party that entrusts, or is to entrust, the child to the care of the person; and
(c) the authorised party does so, or is to do so, as part of the process for the adoption of the child by the person; and
(d) the child is, or will be, aged under 16 on the day the child becomes entrusted to the care of the person.
Division 3—How this Act applies to claims made in exceptional circumstances and other cases
276 How this Act applies to claims made in exceptional circumstances
This Act (other than subsection 18(3), which deals with birth registration) applies in relation to a claim that is made in exceptional circumstances as if:
(a) a reference to the birth of a child were a reference to the claimant becoming the child’s primary carer; and
(b) a reference to the day the child was born were a reference to the day the claimant became the child’s primary carer; and
(c) a reference to the expected date of birth of the child were a reference to the day the claimant expects to become the child’s primary carer; and
(d) a reference to a child’s first birthday were a reference to the first anniversary of the day the claimant became the child’s primary carer; and
(da) a reference to a child’s second birthday were a reference to the second anniversary of the day the claimant became the child’s primary carer; and
(e) a reference to a completed birth verification form for a child were a reference to information required by the Secretary about the claimant becoming the child’s primary carer; and
(f) a reference to a child being born during the same multiple birth were a reference to the claimant becoming the primary carer of the child at the same time as becoming the primary carer of another child.
277 Caring for a child when a child is stillborn or dies
(1) If:
(a) a claim is made for parental leave pay for a child; and
(b) before or after the claim is made, the child is stillborn or dies;
then this Act (other than sections 31AA and 47) applies as if a reference to the claimant caring for the child were a reference to the claimant caring for the child had the child not been stillborn or died.
Note: Section 31AA deals with eligibility for parental leave pay and section 47 defines when a person is caring for a child.
(2) The PPL rules may modify the operation of subsection (1).
Division 4—How this Act applies to Commonwealth employment
278 How this Act applies to Commonwealth employment
(1) This Act applies in relation to a person who is engaged by or on behalf of the Commonwealth as an employee, to perform functions in a Commonwealth agency as if:
(a) the employee were employed by the agency (rather than the Commonwealth) for whom the person is to perform functions; and
(b) the agency were a body corporate; and
(c) the head of the agency (however described) has all the rights, duties and powers of an employer in relation to the employee.
(2) However, for the purposes of working out for the purposes of paragraph 101(1)(c) (which deals with when the Secretary must make an employer determination) whether the person has, or will have, been employed by the Commonwealth agency for at least 12 months:
(a) treat the reference in that paragraph to the employer as being a reference to the Commonwealth; and
(b) disregard subsection (1) of this section.
Division 5—Loss of parental leave pay for persons on security grounds
278A Simplified outline of this Division
Persons who might prejudice the security of Australia or a foreign country may lose parental leave pay.
278B Loss of parental leave pay for persons on security grounds
(1) If a security notice is given to the Minister in relation to a person, then while the notice is in force:
(a) no parental leave pay is to be paid to the person; and
(b) the person is not eligible for parental leave pay; and
(c) parental leave pay is not payable to the person.
Note: A security notice is a notice under section 278C.
(3) If a security notice given to the Minister in relation to a person ceases to be in force, then for any day while the notice was in force:
(a) the person is not eligible for parental leave pay; and
(b) parental leave pay is not payable to the person.
(4) Subsections (1) to (3) have effect despite any other provision of this Act.
278C Security notice from Home Affairs Minister
(1) The Home Affairs Minister may give the Minister a written notice requiring that this Division apply in relation to a specified person if:
(a) the Foreign Affairs Minister gives the Home Affairs Minister a notice under section 278D in relation to the person; or
(b) the person’s visa is cancelled under section 116 or 128 of the Migration Act 1958 because of an assessment by the Australian Security Intelligence Organisation that the person is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(c) the person’s visa is cancelled under section 134B of the Migration Act 1958 (emergency cancellation on security grounds) and the cancellation has not been revoked because of subsection 134C(3) of that Act; or
(d) the person’s visa is cancelled under section 501 of the Migration Act 1958 and there is an assessment by the Australian Security Intelligence Organisation that the person is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(2) Before giving a notice under this section, the Home Affairs Minister must have regard to the following:
(a) the extent (if any) that any payments of parental leave pay of the person are being, or may be, used for a purpose that might prejudice the security of Australia or a foreign country, if the Home Affairs Minister is aware of that extent;
(b) the likely effect of the operation of section 278B on the person’s dependants, if the Home Affairs Minister is aware of those dependants.
(3) The Secretary of the Department administered by the Home Affairs Minister must:
(a) seek the advice of the Human Services Secretary in relation to paragraph (2)(b); and
(b) inform the Home Affairs Minister of that advice.
(4) Subsection (2) does not limit the matters to which regard may be had.
278D Notice from Foreign Affairs Minister
If:
(a) either:
(i) under subsection 14(2) of the Australian Passports Act 2005, the Foreign Affairs Minister refuses to issue a person an Australian travel document; or
(ii) under section 22 of that Act, the Foreign Affairs Minister cancels a person’s Australian travel document; and
(b) the refusal or cancellation was because of a refusal/cancellation request made in relation to the person under subsection 14(1) of that Act; and
(c) the request was made on the basis of the circumstance mentioned in subparagraph 14(1)(a)(i) of that Act;
the Foreign Affairs Minister may give the Home Affairs Minister a written notice setting out those matters.
278F Copy of security notice to be given to Secretaries
The Minister must give a copy of a security notice to:
(a) the Secretary of the Department; and
(b) the Human Services Secretary.
278G Period security notice is in force
A security notice comes into force on the day it is given to the Minister, and remains in force until it is revoked.
278GA Annual review of security notice
Before the end of the following periods, the Home Affairs Minister must consider whether to revoke a security notice (if it has not already been revoked):
(a) 12 months after it came into force;
(b) 12 months after the Home Affairs Minister last considered whether to revoke it.
278H Revoking a security notice
(1) The Home Affairs Minister may, by written notice given to the Minister, revoke a security notice.
(2) The revocation takes effect on the day it is made.
(3) The Minister must give a copy of a notice under subsection (1) to:
(a) the Secretary of the Department; and
(b) the Human Services Secretary.
278J Notices may contain personal information
A notice under this Division in relation to a person may contain personal information (within the meaning of the Privacy Act 1988) about the person.
278K Decisions under Division not decisions of officers
For the purposes of Chapter 5, a decision under this Division is taken not to be a decision of an officer under this Act.
278L Notices not legislative instruments
A notice under this Division is not a legislative instrument.
Part 6‑2—Nominees
Division 1—Guide to this Part
279 Guide to this Part
This Part is about payment nominees (who are people who can receive payments of instalments of parental leave pay on behalf of other people for the purposes of this Act) and correspondence nominees (who are people who can receive notices on behalf of other people for the purposes of this Act).
Division 2 allows the Secretary to appoint a person to be a payment nominee, or a correspondence nominee, for another person for the purposes of this Act.
Divisions 3, 4 and 5 deal with the consequences of such an appointment.
Division 2—Appointment of nominees
280 Appointment of payment nominee
(1) The Secretary may, in writing:
(a) appoint a person (including a body corporate) to be the payment nominee of another person for the purposes of parental leave pay; and
(b) direct that the whole or a specified part of an instalment payable by the Secretary to the nominee’s PPL under Part 3‑3 be paid to the nominee.
Note: The Secretary must make the appointment in accordance with section 282.
(2) An appointment or a direction made under subsection (1) is not a legislative instrument.
281 Appointment of correspondence nominee
(1) The Secretary may, in writing, appoint a person (including a body corporate) to be the correspondence nominee of another person for the purposes of parental leave pay.
Note: The Secretary must make the appointment in accordance with section 282.
(2) An appointment made under subsection (1) is not a legislative instrument.
282 Provisions relating to appointments
(1) A person may be appointed as the payment nominee and the correspondence nominee of the same person.
(2) The Secretary must not appoint a nominee for a person (the proposed principal) under section 280 or 281 except:
(a) with the written consent of the person to be appointed; and
(b) after taking into consideration the wishes (if any) of the proposed principal regarding the making of such an appointment.
(3) The Secretary must cause a copy of an appointment under section 280 or 281 to be given to:
(a) the nominee; and
(b) the principal.
283 Suspension and cancellation of nominee appointments
(1) If a person who is appointed as a nominee under section 280 or 281 informs the Secretary in writing that the person no longer wishes to be a nominee under that appointment, the Secretary must, as soon as practicable, cancel the appointment.
(2) If:
(a) the Secretary gives a nominee a notice under section 288; and
(b) the nominee informs the Department that:
(i) an event or change of circumstances has happened or is likely to happen; and
(ii) the event or change of circumstances is likely to have an effect referred to in paragraph 288(1)(b);
the Secretary may suspend or cancel the nominee’s appointment.
(3) If:
(a) the Secretary gives a nominee a notice under section 288 or 289; and
(b) the nominee does not comply with the requirement of the notice;
the Secretary may suspend or cancel the nominee’s appointment, or each of the nominee’s appointments.
(4) While an appointment is suspended, the appointment has no effect for the purposes of this Act.
(5) The Secretary may, at any time, cancel the suspension of an appointment under subsection (2) or (3).
(6) The suspension or cancellation of an appointment, and the cancellation of such a suspension, must be in writing.
(7) The cancellation of an appointment has effect on and from such day, being later than the day of the cancellation, as is specified in the cancellation.
(8) The Secretary must give the principal and the nominee a copy of:
(a) a suspension of the nominee’s appointment; or
(b) a cancellation of the nominee’s appointment; or
(c) a cancellation of a suspension of the nominee’s appointment.
(9) A suspension or cancellation of an appointment, or a cancellation of such a suspension, under this section is not a legislative instrument.
Division 3—Payment to payment nominee
284 Payment of instalments to payment nominee
(1) If:
(a) a person has a payment nominee; and
(b) the whole or a part of an instalment is payable to the person; and
(c) the Secretary has given a direction in relation to the instalment under section 280;
the instalment must be paid in accordance with the direction.
(2) An instalment paid to the payment nominee of a person:
(a) is paid to the payment nominee on behalf of the person; and
(b) is taken, for the purposes of this Act (other than this Part), to have been paid to the person and to have been so paid when it was paid to the nominee.
(3) An instalment that is to be paid to the payment nominee of a person must be paid to the credit of a bank account nominated and maintained by the nominee.
(4) The Secretary may direct that the whole or a part of an instalment that is to be paid to a payment nominee be paid to the payment nominee in a different way from that provided for by subsection (3). If the Secretary gives such a direction, an instalment to which the direction relates must be paid in accordance with the direction.
(5) A direction given under subsection (4) is not a legislative instrument.
Division 4—Functions and responsibilities of nominees
285 Actions of correspondence nominee on behalf of principal
Correspondence nominee for parental leave pay
(1) If a person has a correspondence nominee for parental leave pay, any act that may be done by the person under, or for the purposes of, this Act (other than Division 2 or 3) in relation to parental leave pay may be done by that correspondence nominee.
Note: This subsection is subject to section 296 (which deals with the right of the nominee to attend with a principal) and subsection (3) of this section.
(2) Without limiting subsection (1), if a person has a correspondence nominee for parental leave pay, an application or claim that may be made by a person under this Act in relation to parental leave pay may be made by that correspondence nominee on behalf of the person, and an application or claim so made is taken to be made by the person.
(3) If, under a provision of this Act, the Secretary gives a notice in relation to parental leave pay to a person who has a correspondence nominee for parental leave pay, subsection (1) does not extend to an act that is required by the notice to be done by the person.
Effect of acts done by correspondence nominee
(7) An act done by a person’s correspondence nominee under this section has effect, for the purposes of this Act (other than this Part), as if it had been done by the person.
286 Giving of notices to correspondence nominee
(1) If a person has a correspondence nominee for parental leave pay, any notice that the Secretary is required or authorised by this Act to give to the person in relation to parental leave pay may be given by the Secretary to that correspondence nominee.
(2) A notice given under subsection (1):
(a) must, in every respect, be in the same form, and in the same terms, as if it were being given to the person; and
(b) may be given to the correspondence nominee personally or by post or by any other means approved by the Secretary.
(3) If:
(a) under subsection (1), the Secretary gives a notice (the nominee notice) to a person’s correspondence nominee; and
(b) the Secretary afterwards gives the person a notice that:
(i) is expressed to be given under the same provision of this Act as the nominee notice; and
(ii) makes the same requirement of the person as the nominee notice;
section 287 ceases to have effect in relation to the nominee notice.
(4) If:
(a) under subsection (1), the Secretary gives a notice (the nominee notice) to a person’s correspondence nominee; and
(b) the Secretary has already given to the person a notice that:
(i) is expressed to be given under the same provision of this Act as the nominee notice; and
(ii) makes the same requirement of the person as the nominee notice;
section 287 does not have effect in relation to the nominee notice.
287 Compliance by correspondence nominee
(1) If, under section 286, a notice making a PPL requirement of a person is given to the person’s correspondence nominee, the following paragraphs have effect:
(a) for the purposes of this Act, other than this Part, the notice is taken:
(i) to have been given to the person; and
(ii) to have been so given on the day on which the notice was given to the correspondence nominee;
(b) any PPL requirement made of the person may be satisfied by the correspondence nominee;
(c) any act done by the correspondence nominee for the purposes of satisfying a PPL requirement of the notice has effect, for the purposes of this Act, as if it had been done by the person;
(d) if the correspondence nominee fails to satisfy a PPL requirement of the notice, the person is taken, for the purposes of this Act, to have failed to comply with the PPL requirement.
(2) To avoid doubt, for the purposes of this Act, the person is taken to have complied with a PPL requirement if:
(a) the PPL requirement imposes an obligation on the person to inform the Secretary of a matter, or give the Secretary a statement, within a specified period; and
(b) the correspondence nominee informs the Secretary of the matter, or gives the Secretary the statement (as the case may be) within that period.
(3) To avoid doubt, for the purposes of this Act, the person is taken to have complied with a PPL requirement if:
(a) the PPL requirement imposes an obligation on the person to give information, or produce a document, to an officer within a specified period; and
(b) the correspondence nominee gives the information, or produces the document (as the case may be) to the officer within that period.
(4) To avoid doubt, for the purposes of this Act, the person is taken not to have complied with a PPL requirement if:
(a) the PPL requirement imposes an obligation on the person to inform the Secretary of a matter, or give the Secretary a statement, within a specified period; and
(b) the correspondence nominee does not inform the Secretary of the matter, or give the Secretary the statement (as the case may be) within that period.
(5) To avoid doubt, for the purposes of this Act, the person is taken not to have complied with a PPL requirement if:
(a) the PPL requirement imposes an obligation on the person to give information, or produce a document, to an officer within a specified period; and
(b) the correspondence nominee does not give the information, or produce the document (as the case may be) to the officer within that period.
(6) A PPL requirement is a requirement, made by the Secretary under this Act, to:
(a) inform the Secretary of a matter; or
(b) give information, or produce a document, to an officer; or
(c) give a statement to the Secretary.
288 Nominee to inform Department of matters affecting ability to act as nominee
(1) The Secretary may give a nominee of a person a notice that requires the nominee to inform the Department if:
(a) either:
(i) an event or change of circumstances happens; or
(ii) the nominee becomes aware that an event or change of circumstances is likely to happen; and
(b) the event or change of circumstances is likely to affect:
(i) the ability of the nominee to act as the payment nominee or correspondence nominee of the person (as the case may be); or
(ii) the ability of the Secretary to give notices to the nominee under this Act; or
(iii) the ability of the nominee to comply with notices given to the nominee by the Secretary under this Act.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post or by any other means approved by the Secretary; and
(c) must specify how the nominee is to give the information to the Department; and
(d) must specify the period within which the nominee is to give the information to the Department.
(3) A notice under subsection (1) is not ineffective just because it does not comply with paragraph (2)(c).
(4) The period specified under paragraph (2)(d) must not end earlier than 14 days after:
(a) the day on which the event or change of circumstances happens; or
(b) the day on which the nominee becomes aware that the event or change of circumstances is likely to happen.
(5) Subsection (4) does not apply to a requirement in a notice for a nominee to inform the Department of any proposal by the nominee to leave Australia.
(6) This section extends to:
(a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and
(b) all persons, irrespective of their nationality or citizenship.
289 Statement by payment nominee regarding disposal of money
(1) The Secretary may give the payment nominee of a person a notice that requires the nominee to give the Department a statement about a matter relating to the disposal by the nominee of an instalment paid to the nominee on behalf of the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post or by any other means approved by the Secretary; and
(c) must specify how the nominee is to give the statement to the Department; and
(d) must specify the period within which the nominee is to give the statement to the Department.
(3) A notice under subsection (1) is not ineffective just because it does not comply with paragraph (2)(c).
(4) The period specified under paragraph (2)(d) must not end earlier than 14 days after the day the notice is given.
(5) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(6) A person commits an offence if:
(a) the person is a nominee; and
(b) the person refuses or fails to comply with a notice under subsection (1).
Penalty: 30 penalty units.
(7) Subsection (6) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
(8) An offence against subsection (6) is an offence of strict liability.
(9) This section extends to:
(a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and
(b) all persons, irrespective of their nationality or citizenship.
Division 5—Other matters relating to nominees
290 Protection of principal against liability for actions of nominee
Nothing in this Part has the effect of rendering a principal guilty of an offence against this Act in relation to any act or omission of the principal’s correspondence nominee.
291 Protection of nominee against criminal liability
(1) A nominee of a principal is not subject to any criminal liability under this Act in relation to:
(a) any act or omission of the principal; or
(b) anything done, in good faith, by the nominee in his or her capacity as nominee.
(2) This section has effect subject to section 289 (which deals with a statement by a payment nominee regarding the disposal of money).
292 Duty of nominee to principal
(1) It is the duty of a person who is the payment or correspondence nominee of a principal at all times to act in the best interests of the principal.
(2) A nominee does not commit a breach of the duty imposed by subsection (1) by doing an act if, when the act is done, the nominee reasonably believes that it is in the best interests of the principal that the act be done.
(3) A nominee does not commit a breach of the duty imposed by subsection (1) by refraining from doing an act if, at the relevant time, the nominee reasonably believes that it is in the best interests of the principal that the act be not done.
293 Saving of Secretary’s powers of revocation
Nothing in this Part is to be taken to be an expression of a contrary intention for the purposes of subsection 33(3) of the Acts Interpretation Act 1901.
294 Saving of Secretary’s powers to give notices to principal
Nothing in this Part is intended in any way to limit or affect the Secretary’s powers under other provisions of this Act to give notices to, or make requirements of, a person who has a nominee.
295 Notification of nominee where notice given to principal
If, under a provision of this Act (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee, the Secretary may inform the correspondence nominee of the giving of the notice and of the terms of the notice.
296 Right of nominee to attend with principal
(1) If:
(a) under a provision of this Act (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee; and
(b) the notice requires the person:
(i) to attend the Department; or
(ii) to attend a particular place; and
(c) the Secretary informs the person’s correspondence nominee of the giving of the notice;
the correspondence nominee may attend the Department or place (as the case may be) with the person if the person so wishes.
(2) If a person’s correspondence nominee is a body corporate, the last reference in subsection (1) to the correspondence nominee is to be read as a reference to an officer or employee of the correspondence nominee.
Part 6‑3—Other matters
Division 1—Guide to this Part
297 Guide to this Part
Division 2—The Paid Parental Leave Rules
298 The PPL rules
The Minister may, by legislative instrument, make rules providing for matters:
(a) required or permitted by this Act to be provided; or
(b) necessary or convenient to be provided in order to carry out or give effect to this Act.
299 Extension of Act to persons who are not employees and employers
(1) The PPL rules or the regulations may provide that the Secretary may make an employer determination under Part 3‑5 for persons who are in a relationship that is similar to the relationship between an employer and an employee.
(2) For the purposes of subsection (1), the PPL rules or the regulations may modify (including by adding, omitting or substituting) any provision of this Act in relation to persons provided for in accordance with subsection (1) by the PPL rules or the regulations.
Division 3—Jurisdiction of courts
300 Jurisdiction of Federal Court
Jurisdiction is conferred on the Federal Court in relation to civil matters arising under this Act.
301 Jurisdiction of Federal Circuit and Family Court of Australia (Division 2)
Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in relation to civil matters arising under this Act.
Division 4—Other matters
302 General administration
The Secretary has, subject to any direction of the Minister, the general administration of this Act.
303 Delegation
General powers
(1) The Secretary may, in writing, delegate all or any of his or her powers under this Act (other than paragraph 128(1)(b) (which deals with disclosing information to Agency Heads)) to:
(a) an officer; or
(b) without limiting paragraph (a), a person engaged (whether as an employee or otherwise) by:
(i) an Agency (within the meaning of the Public Service Act 1999); or
(ii) another authority of the Commonwealth; or
(iii) an organisation that performs services for the Commonwealth.
(1A) Paragraphs (1)(a) and (b) do not apply to the Chief Executive Centrelink, Chief Executive Medicare or an APS employee in the Human Services Department.
(2) The Secretary may, in writing, delegate all or any of his or her powers under this Act (other than paragraph 128(1)(b) (which deals with disclosing information to Agency Heads)) to the Chief Executive Centrelink, the Chief Executive Medicare or an APS employee in the Human Services Department.
Power under paragraph 128(1)(b)
(4) The Secretary cannot delegate to anyone except the Chief Executive Centrelink or the Chief Executive Medicare the Secretary’s power under paragraph 128(1)(b) to disclose information to an Agency Head (within the meaning of the Public Service Act 1999).
(5) If the Secretary delegates his or her power under paragraph 128(1)(b) to the Chief Executive Centrelink, the Chief Executive Centrelink cannot, despite any provision in the Human Services (Centrelink) Act 1997, delegate that power to a Departmental employee (within the meaning of that Act).
(6) If the Secretary delegates his or her power under paragraph 128(1)(b) to the Chief Executive Medicare, the Chief Executive Medicare cannot, despite any provision in the Human Services (Medicare) Act 1973, delegate that power to a Departmental employee (within the meaning of that Act).
304 Decisions to be in writing
A decision of an officer under this Act must be in writing.
305 Secretary may arrange for use of computer programs to make decisions
(1) The Secretary may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the Secretary may make decisions under this Act.
(2) A decision made by the operation of a computer program under an arrangement made under subsection (1) is taken to be a decision made by the Secretary.
306 Notice of decisions
(1) Notice of a decision under this Act is taken, for the purposes of this Act, to have been given to a person if written notice of the decision is:
(a) delivered to the person personally; or
(b) left at the address of the place of residence or business of the person last known to the Secretary; or
(c) sent by prepaid post to the postal address of the person last known to the Secretary.
Note: Notice of decisions can also be given electronically in accordance with the Electronic Transactions Act 1999.
(2) Notice of a decision under this Act may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3) Notice of a decision that is given in accordance with subsection (2) is taken to have been given to the person when the notice would be delivered in the ordinary course of the post unless the contrary is proved.
(4) If a provision of this Act requires a notice of a decision to be given to a person, the decision is not ineffective just because the notice:
(a) was not given or was given late; or
(b) did not comply with the requirements of the provision.
(5) This section only applies to notices of decisions. Nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under this Act (for example, a notice that requires a person to inform the Secretary about some matter).
307 Appropriation
Payments under this Act (other than payments of instalments by employers under Division 2 of Part 3‑2) are to be made out of the Consolidated Revenue Fund, which is appropriated accordingly.
307A Review of the operation of this Act
(1) The Minister must cause a comprehensive review of the general operation of this Act to be begun by 31 January 2013.
(2) The review must consider the following matters:
(a) the amount of time off work that primary carers are taking to care for newborn or newly adopted children;
(b) the availability and amount of leave and payments provided by employers in relation to the birth or adoption of a child, and the interaction of those entitlements with parental leave pay provided under this Act;
(c) the operation of the work test;
(d) whether primary claimants’ partners should be paid parental leave pay separately from, or in addition to, primary claimants;
(e) whether employers should make superannuation contributions in relation to parental leave pay;
(f) the results of any evaluations conducted in relation to the operation of this Act;
(g) the administration of this Act;
(h) any other matter relevant to the general operation of this Act.
(3) The Minister must ensure that public submissions are sought in relation to the review.
(4) The Minister must cause a copy of a written report of the review to be tabled in each House of the Parliament within 15 sitting days of the day on which the Minister receives the report.
308 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
