A Bill for an Act to provide for the payment of parental leave
pay, and for related purposes
The Parliament of Australia enacts:
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.
(3) To avoid doubt, subsection (2) does
not prevent the Crown from being liable to pay a pecuniary penalty under
section 147 or 159.
Note: Section 147 deals with civil penalty
orders and section 159 deals with infringement notices.
Division 2—Guide to this Act
4
Guide to this Act
Overview
This Act provides for the payment of
parental leave pay to a person in the first year after the birth of a child or,
for adoption, the placement of a child.
Parental leave pay is paid to a person
for a particular period. That period is called the person’s PPL period. The
maximum period for which any person may be paid parental leave pay is 18 weeks.
A person’s PPL period may be the full 18 weeks or a lesser period (e.g. where
the person is not eligible for parental leave pay for that full period).
Parental leave pay is paid in
instalments at the national minimum wage for each week day during the person’s
PPL period. It is paid by either the person’s employer 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. For the main case, to be eligible a person
must (broadly):
(a) satisfy the work test, the
income test and the Australian residency test; and
(b) be the child’s primary
carer; and
(c) not have returned to work;
and
(d) not be entitled to baby
bonus.
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 3 types of claims: a primary
claim, a secondary claim and (in rare cases) a tertiary claim. These claims
relate to each other, although the primary claim is the main one—a secondary or
tertiary claim cannot be made without it. The primary claim will often be the
only claim that is made. If a secondary or tertiary claim is made, that claim
will be for the part of the maximum 18 week period (or lesser period) in which
parental leave pay was not payable to the primary claimant.
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. The employer is only
required to do that if an employer determination has come into force for the
employer and the person, and 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. 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 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 parental leave pay scheme, and for the recovery of debts
owing to the Commonwealth.
Chapter 5—Review of
decisions
Chapter 5 is about administrative
and judicial review of decisions made under this Act.
Part 5‑1 allows the
Secretary, on his or her 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 Social Security Appeals Tribunal for review of a decision made
under this Act.
Part 5‑3 is about the
procedures to be followed when the Social Security Appeals Tribunal reviews a
decision.
Part 5‑4 allows the
Secretary or a person whose interests are affected by a decision made by the
Social Security Appeals Tribunal to apply to the Administrative Appeals
Tribunal for review of the decision.
Part 5‑5 has miscellaneous
provisions relating to reviews of decisions 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.
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 the Territory of Cocos (Keeling) Islands and the Territory of
Christmas Island.
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.
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.
baby bonus has the same meaning as in the
Family Assistance Act.
bank account includes an account held with an
ADI.
bank account information: see subsection 104(2).
birth verification form: see subsection 18(4).
business includes any profession, trade,
employment, vocation or calling, but does not include occupation as an
employee.
calendar month means one of the 12 months of
the year.
CEO means:
(a) in relation to the Commonwealth
Services Delivery Agency—the Chief Executive Officer of the Agency; and
(b) in relation to Medicare
Australia—the Chief Executive Officer of Medicare Australia.
civil penalty order: see
subsection 147(2).
civil penalty provision: see section 146.
claim means a primary claim, a secondary
claim or a tertiary claim for parental leave pay for a child.
claimant means a person who is a primary
claimant, secondary claimant or tertiary claimant.
claimant decision: see section 206.
Commonwealth agency means any of the
following:
(a) a Department of State;
(b) a Department of the Parliament;
(c) a prescribed Agency (within the
meaning of the Financial Management and Accountability Act 1997) that
forms part of the Commonwealth;
(d) any other unincorporated body
established for a public purpose by or under a law of the Commonwealth.
compliance notice: see subsection 157(3).
controls an entity: see subsection 35(4).
correspondence nominee means a person who is
appointed as a correspondence nominee under section 281.
daily national minimum wage amount: see
subsection 65(2).
date of the further debt notice: see section 174.
date of the initial debt notice: see section 173.
day of placement of a child with a person:
see subsection 275(3).
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.
effective claim means a claim that is made in
accordance with Part 2‑4.
eligible for parental leave pay: see section 31.
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.
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)(c) (which deals
with primary claims); or
(b) paragraph 54(2)(d) (which deals
with secondary claims); or
(c) subsection 54(3) (which deals with
tertiary claims).
Fair Work Act means the Fair Work Act 2009.
Family Assistance Act means the A New Tax
System (Family Assistance) Act 1999.
Federal Court means the Federal Court of
Australia.
final debt payment day: see section 175.
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.
further debt notice: see section 174.
garnishee, in relation to a garnishee notice:
see section 184.
garnishee notice: see section 184.
holder, of a visa, has the same meaning as in
the Migration Act 1958.
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(2).
infringement notice: see subsections 159(1)
and (2).
initial eligibility determination: see
section 26.
insolvent: a person is insolvent
if:
(a) for a natural person:
(i) the person is an
insolvent under administration (within the meaning of the Corporations Act
2001); or
(ii) the person is a debtor
in relation to a debt agreement under Part IX of the Bankruptcy Act
1966 that has not ended or been terminated; and
(b) for a person that is or was a body
corporate:
(i) the person is an
externally‑administered 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 exemption determination: see subsection
178(1).
involved in a contravention of a civil
penalty provision: see subsection 145(2).
keeping in touch day: see section 50.
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.
maximum PPL period: see subsection
11(3).
maximum PPL period end day: see subsection 11(5).
maximum PPL period start day: see subsection 11(4).
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.
nominated start date: see subsection 57(1).
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, 14, 15, 16 or 17 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 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.
penalty interest rate: see section 180.
penalty unit has the same meaning as in
section 4AA of the Crimes Act 1914.
permissible break: see subsection 36(1).
permissible purpose: see
section 49.
PPL is short for paid parental leave.
PPL agency means:
(a) the Department; or
(b) the Commonwealth Services Delivery
Agency; or
(c) Medicare Australia.
PPL agency head means:
(a) for the Department—the Secretary;
or
(b) for the Commonwealth Services
Delivery Agency—the CEO of the Agency; or
(c) for Medicare Australia—the CEO of
Medicare Australia.
PPL day: see subsection 63(3).
PPL funding amount: see
subsection 75(1).
PPL income limit: see section 41.
PPL period: see subsection 11(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.
primary carer: see section 47.
primary claim: see subsection 53(2).
primary claimant means a person who has made
an effective primary claim for parental leave pay for a child.
principal in relation to a nominee, means the
person in relation to whom the nominee was appointed.
Principal Member means the Principal Member
of the Social Security Appeals Tribunal.
protected information means:
(a) information about a person that is
or was held in the records of the Department or the Commonwealth Services
Delivery Agency; or
(b) information about a person
obtained by an officer under this Act that is or was held in the records of
Medicare Australia; or
(c) information to the effect that
there is no information about a person held in the records of a PPL agency.
provisional indexed amount: see section 42.
qualifying period: see section 32.
qualifying work: see section 34.
reference income year: see section 39.
reference period: see subsection 47(2).
relevant PPL income limit: see section 40.
resides in Australia has the same meaning as
in the Social Security Act.
returns to work: see section 48.
saved amount: see
subsection 97(2).
secondary claim: see subsection 53(3).
secondary claimant means a person who has
made an effective secondary claim for parental leave pay for a child for which
another person has made a primary claim.
Secretary means the Secretary of the
Department.
service arrangements has the same meaning as
in:
(a) in relation to the CEO of the
Commonwealth Services Delivery Agency—section 3 of the Commonwealth
Services Delivery Agency Act 1997; and
(b) in relation to the CEO of Medicare
Australia—section 3 of the Medicare Australia Act 1973.
Social Security Act means the Social
Security Act 1991.
special category visa has the same meaning as
in the Migration Act 1958.
SSAT means the Social Security Appeals
Tribunal.
SSAT reviewable claimant decision:
see section 215.
SSAT reviewable employer decision:
see section 223.
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.
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).
tertiary claim: see subsection 53(4).
tertiary claimant means a person who has made
an effective tertiary claim for parental leave pay for a child for which
another person has made a secondary claim.
this Act includes the PPL rules and the
regulations.
transfer day: see subsections 84(3), (4) and
(5).
verifies a child’s birth: see section 18.
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 section 32.
work test period: see section 33.
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 3 types of claims: a primary claim, a
secondary claim and (in rare cases) a tertiary claim. These claims relate to
each other, although the primary claim is the main one—a secondary or tertiary
claim cannot be made without it. The primary claim will often be the only claim
that is made.
If the Secretary makes a determination
that parental leave pay is payable to a person for a child, the parental leave
pay is payable for the particular period that is specified in the
determination. This period is the person’s PPL period. The maximum period for
which any person may be paid parental leave pay is 18 weeks. A person’s PPL
period may be the full 18 weeks or a lesser period (e.g. where the person is
not eligible for parental leave pay for that full period).
If a secondary or tertiary claim is
made, that claim will be for the part of the maximum 18 week period (or lesser
period) in which parental leave pay was not payable to the primary claimant. The
person’s employer or the Secretary will pay instalments of parental leave pay
for that period (see Chapter 3 for the rules about how the person is paid
parental leave pay).
Division 2—When parental leave pay is payable to a person
8 A
determination must be made for parental leave pay to be payable to a person
Parental leave pay is payable to a
person for a child for a period if a determination of the Secretary that
parental leave pay is payable to the person for that period is in force under
section 13, 14, 15, 16 or 17.
Note: See Part 2‑2 for the rules about
when the Secretary can make a determination that parental leave pay is, or is
not, payable to a person.
9 For
the determination to be made, the person must be eligible
The Secretary cannot make a
determination that parental leave pay is payable to a person for a child for a
period unless the person was or will be eligible for parental leave pay during
the period.
Note: See Part 2‑3 for the rules about
when a person is eligible for parental leave pay.
10 For
the determination to be made, the person must claim
The Secretary cannot make a
determination that parental leave pay is payable to a person for a child for a
period unless the person has made:
(a) an effective primary claim for the
child (in which case the person is the primary claimant); or
(b) an effective secondary claim for
the child (in which case the person is the secondary claimant); or
(c) an effective tertiary claim for
the child (in which case the person is the tertiary claimant).
Note: See Part 2‑4 for the rules about
how to make an effective claim.
11 The
determination must specify the person’s PPL period
(1) If the Secretary makes a determination
that parental leave pay is payable to a person for a child, the Secretary must
specify, in the determination, the period for which parental leave pay is
payable to the person. That period is the person’s PPL period.
Note: For a primary claimant’s PPL period, see
subsections 13(3) and 14(3). For a secondary claimant’s PPL period, see
subsections 14(6), 15(5) and 16(4). For a tertiary claimant’s PPL period, see
subsection 17(3).
(2) A person’s PPL period must be the same
as, or within, the maximum PPL period for the child.
(3) The maximum PPL period for
a child is the period that:
(a) starts on the child’s maximum PPL
period start day; and
(b) ends on the child’s maximum PPL
period end day.
(4) The maximum PPL period start day
for a child is:
(a) if, on or before the day (the relevant
day) that is 28 days after the day the child was born, the primary
claimant both made an effective claim for parental leave pay for the child and
verified the child’s birth—the later of the following days:
(i) the day the child was
born;
(ii) the primary claimant’s
nominated start date; and
(b) if, on or before the relevant day,
the primary claimant made an effective claim for parental leave pay for the
child but did not verify the child’s birth—the later of the following days:
(i) the day the primary
claimant verifies the child’s birth;
(ii) the primary claimant’s
nominated start date; and
(c) if the primary claimant makes an
effective claim for parental leave pay for the child after the relevant day—the
later of the following days:
(i) the day the claim is
made;
(ii) the primary claimant’s
nominated start date.
(5) The maximum PPL period end day
for a child is the earlier of the following days:
(a) the day that is 125 days after the
maximum PPL period start day (which is 18 weeks from (and including) that start
day);
(b) the day before the child’s first
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. Different rules
apply depending on the type of claim and, for a primary or secondary claim,
whether it was made by itself or at the same time as another claim.
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 the person has already
been paid parental leave pay for the child).
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 (the work
test, the income test and the Australian residency test). If the Secretary
makes a determination, the Secretary must give a notice of it to the claimant.
Division 2—Determinations about whether parental leave pay is payable to
a person
13
Determination on a primary claim made alone
When a claim is to be determined under this section
(1) If:
(a) a primary claimant has made an
effective primary claim for parental leave pay for a child; and
(b) another person has not made an
effective secondary claim for parental leave pay for the child at the same
time;
the Secretary must make a determination on the primary
claim under this section.
When parental leave pay is payable to primary claimant
(2) The Secretary must determine that
parental leave pay is payable to the primary claimant for the primary
claimant’s PPL period if, when making the determination, the Secretary is
satisfied that the primary claimant was or will be eligible for parental leave
pay on each day in the period that:
(a) starts on the day the child was
born; and
(b) ends on the last day of the
primary claimant’s PPL period.
Note: The Secretary is prevented from making a
determination under this subsection in certain circumstances: see Division 3.
Primary claimant’s PPL period
(3) The Secretary must specify in the
determination under subsection (2) that the primary claimant’s PPL period:
(a) starts on the child’s maximum PPL
period start day; and
(b) ends on:
(i) if the Secretary is satisfied
that the primary claimant was or will be eligible on each day in the child’s
maximum PPL period—the child’s maximum PPL period end day; or
(ii) if the Secretary is
satisfied that the primary claimant was or will be eligible for a period that
is shorter than the child’s maximum PPL period—the last day in the child’s
maximum PPL period that the primary claimant was or will be eligible.
When parental leave pay is not payable to primary
claimant
(4) The Secretary must determine that
parental leave pay is not payable to the primary claimant if the Secretary is
not satisfied of the matters in subsection (2).
14
Determination on primary and secondary claims made jointly—claimants sharing
parental leave pay
When a claim is to be determined under this section
(1) If:
(a) a primary claimant has made an
effective primary claim for parental leave pay for a child; and
(b) a secondary claimant has made an
effective secondary claim for parental leave pay for the child at the same
time; and
(c) in the primary claim, the primary
claimant requested that parental leave pay that is or may be payable for the
child be shared between the primary claimant and the secondary claimant;
the Secretary must make a determination on the primary
claim and the secondary claim under this section.
When parental leave pay is payable to primary claimant
(2) The Secretary must determine that
parental leave pay is payable to the primary claimant for the primary
claimant’s PPL period if, when making the determination, the Secretary is
satisfied that the primary claimant was or will be eligible for parental leave
pay on each day in the period that:
(a) starts on the day the child was
born; and
(b) ends on the last day of the
primary claimant’s PPL period.
Note: The Secretary is prevented from making a
determination under this subsection in certain circumstances: see Division 3.
Primary claimant’s PPL period
(3) The Secretary must specify in the
determination under subsection (2) that the primary claimant’s PPL period:
(a) starts on the child’s maximum PPL
period start day; and
(b) ends on the last day in the
child’s maximum PPL period that the Secretary is satisfied that the primary claimant
was or will be eligible.
When parental leave pay is not payable to primary
claimant
(4) The Secretary must determine that
parental leave pay is not payable to the primary claimant if the Secretary is
not satisfied of the matters in subsection (2).
When parental leave pay is payable to secondary
claimant
(5) The Secretary must determine that parental
leave pay is payable to the secondary claimant for the secondary claimant’s PPL
period if, when making the determination, the Secretary is satisfied that:
(a) a determination has been made
under subsection (2) for the primary claimant; and
(b) the secondary claimant was or will
be eligible for parental leave pay on each day in the secondary claimant’s PPL
period.
Note: The Secretary is prevented from making a
determination under this subsection in certain circumstances: see Division 3.
Secondary claimant’s PPL period
(6) The Secretary must specify in the
determination under subsection (5) that the secondary claimant’s PPL
period:
(a) starts on the first day after the
primary claimant’s PPL period ends; and
(b) ends on:
(i) if the Secretary is
satisfied that the secondary claimant was or will be eligible on each day that
remains in the child’s maximum PPL period—the child’s maximum PPL period end
day; or
(ii) otherwise—the last day
in the child’s maximum PPL period that the Secretary is satisfied that the
secondary claimant was or will be eligible.
When parental leave pay is not payable to secondary
claimant
(7) The Secretary must determine that
parental leave pay is not payable to the secondary claimant if the Secretary is
not satisfied of the matters in subsection (5).
15
Determination on primary and secondary claims made jointly—secondary claimant
to get all the parental leave pay
When a claim is to be determined under this section
(1) If:
(a) a primary claimant has made an
effective primary claim for parental leave pay for a child; and
(b) a secondary claimant has made an
effective secondary claim for parental leave pay for the child at the same
time; and
(c) in the primary claim, the primary
claimant requested that the secondary claimant be paid the full amount of
parental leave pay that is or may be payable for the child;
the Secretary must make a determination on the primary
claim and the secondary claim under this section.
When parental leave pay is not payable to primary
claimant
(2) The Secretary must determine that
parental leave pay is not payable to the primary claimant.
When parental leave pay is payable to secondary
claimant
(3) The Secretary must determine that
parental leave pay is payable to the secondary claimant for the secondary
claimant’s PPL period if, when making the determination, the Secretary is
satisfied that:
(a) the primary claimant:
(i) satisfies the work
test and income test on that day; and
(ii) satisfied the
Australian residency test on the day the child was born; and
(b) the secondary claimant was or will
be eligible for parental leave pay on each day in the secondary claimant’s PPL
period; and
(c) if the secondary claimant’s PPL
period starts after the day the child was born—subsection (4) applies to
the period that:
(i) starts on the day the
child was born; and
(ii) ends on the day before
the start of the secondary claimant’s PPL period.
Note: The Secretary is prevented from making a
determination under this subsection in certain circumstances: see Division 3.
(4) This subsection applies to the period referred
to in paragraph (3)(c) if:
(a) the primary claimant was or will
be eligible for parental leave pay on each day in that period; or
(b) the secondary claimant was or will
be eligible for parental leave pay on each day in that period; or
(c) both of the following are
satisfied:
(i) the primary claimant
was or will be eligible for parental leave pay on each day in the first part of
that period;
(ii) the secondary claimant
was or will be eligible for parental leave pay on each day in the last part of
that period.
Secondary claimant’s PPL period
(5) The Secretary must specify in the
determination under subsection (3) that the secondary claimant’s PPL
period:
(a) starts on the maximum PPL period
start day; and
(b) ends on:
(i) if the Secretary is
satisfied that the secondary claimant was or will be eligible on each day in
the child’s maximum PPL period—the child’s maximum PPL period end day; or
(ii) if the Secretary is
satisfied that the secondary claimant was or will be eligible for a period that
is shorter than the child’s maximum PPL period—the last day in the child’s
maximum PPL period that the Secretary is satisfied that the secondary claimant
was or will be eligible.
When parental leave pay is not payable to secondary
claimant
(6) The Secretary must determine that
parental leave pay is not payable to the secondary claimant if the Secretary is
not satisfied of the matters in subsection (3).
16
Determination on a secondary claim made after the primary claim
When a claim is to be determined under this section
(1) If:
(a) a primary claimant makes an
effective primary claim for parental leave pay for a child; and
(b) a secondary claimant makes an
effective secondary claim for parental leave pay for the child at a later time;
the Secretary must make a determination on the secondary
claim under this section.
(2) However, the Secretary cannot make a
determination on the secondary claim under this section until the Secretary has
first made a determination on the primary claim.
When parental leave pay is payable to secondary
claimant
(3) The Secretary must determine that
parental leave pay is payable to the secondary claimant for the secondary
claimant’s PPL period if, when making the determination, the Secretary is
satisfied that:
(a) a determination under section 13
or 14 that parental leave pay is payable to the primary claimant was or will be
in force on the day before the start of the secondary claimant’s PPL period;
and
(b) the secondary claimant was or will
be eligible for parental leave pay for the child on each day in the secondary
claimant’s PPL period.
Note: The Secretary is prevented from making a
determination under this subsection in certain circumstances: see Division 3.
Secondary claimant’s PPL period
(4) The Secretary must specify in the
determination under subsection (3) that the secondary claimant’s PPL
period:
(a) starts on the first day after the
primary claimant’s PPL period ends; and
(b) ends on:
(i) if the Secretary is
satisfied that the secondary claimant was or will be eligible on each day that
remains in the child’s maximum PPL period—the child’s maximum PPL period end
day; or
(ii) otherwise—the last day
in the child’s maximum PPL period that the Secretary is satisfied the secondary
claimant was or will be eligible.
When parental leave pay is not payable to secondary
claimant
(5) The Secretary must determine that
parental leave pay is not payable to the secondary claimant if the Secretary is
not satisfied of the matters in subsection (3).
17
Determination on a tertiary claim
When a tertiary claim is to be determined under this
section
(1) If a tertiary claimant makes an effective
tertiary claim for parental leave pay for a child, the Secretary must make a
determination on the tertiary claim under this section.
When parental leave pay is payable to tertiary claimant
(2) The Secretary must determine that
parental leave pay is payable to the tertiary claimant for the tertiary
claimant’s PPL period if, when making the determination, the Secretary is
satisfied that:
(a) a determination under section 14,
15 or 16 that parental leave pay is payable to the secondary claimant was or
will be in force on the day before the start of the tertiary claimant’s PPL
period; and
(b) the tertiary claimant was or will
be eligible for parental leave pay on each day in the tertiary claimant’s PPL
period.
Note: The Secretary is prevented from making a
determination under this subsection in certain circumstances: see Division 3.
Tertiary claimant’s PPL period
(3) The Secretary must specify in the
determination under subsection (2) that the tertiary claimant’s PPL period:
(a) starts on the first day after the secondary
claimant’s PPL period ends; and
(b) ends on:
(i) if the Secretary is
satisfied that the tertiary claimant was or will be eligible on each day that
remains in the child’s maximum PPL period—the child’s maximum PPL period end
day; or
(ii) otherwise—the last day
in the child’s maximum PPL period that the Secretary is satisfied the tertiary
claimant was or will be eligible.
When parental leave pay is not payable to tertiary
claimant
(4) The Secretary must determine that
parental leave pay is not payable to the tertiary claimant if the Secretary is
not satisfied of the matters in subsection (2).
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
the primary 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.
19 The
child was born before 1 January 2011
The Secretary must not make a payability
determination that parental leave pay is payable to a person for a child if the
child was born before 1 January 2011.
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 The
person etc. has already been paid parental leave pay
(1) The Secretary must not make a payability
determination that parental leave pay is payable to a person for a child if:
(a) the person has been paid parental
leave pay for the child under a different claim; or
(b) if the person is the primary
claimant:
(i) the person’s partner
has been paid parental leave pay for the child; or
(ii) a former partner of
the person was paid parental leave pay for the child when he or she was the
person’s partner; or
(c) if the person is the secondary
claimant:
(i) the person’s partner
has been paid parental leave pay for the child (other than as the primary
claimant to which the person’s secondary claim relates); or
(ii) a former partner of
the person was paid parental leave pay for the child when he or she was the
person’s partner (other than as the primary claimant to which the person’s
secondary claim relates).
(2) Subsection (1) does not apply to a claim
that is made in exceptional circumstances.
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, 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 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, the Secretary must give a notice of the determination to the
claimant, stating:
(a) whether parental leave pay is
payable; and
(b) if parental leave pay is
payable—the claimant’s PPL period; and
(c) 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; and
(b) the person requests the Secretary
to revoke the determination; and
(c) the request is made:
(i) before the start of
the person’s PPL period; and
(ii) 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
26
Initial eligibility determinations
Primary claimants
(1) If a person makes an effective primary
claim, the Secretary may make a determination (the initial eligibility
determination) that the person is initially eligible for parental leave
pay for the child if, when making the determination, the Secretary is satisfied
that the person satisfies:
(a) the work test; and
(b) the income test; and
(c) the Australian residency test.
Secondary claimants
(2) If a person makes an effective secondary
claim, the Secretary may make a determination (the initial eligibility
determination) that the person is initially eligible for parental leave
pay for the child if, when making the determination, the Secretary is satisfied
that the person:
(a) satisfies:
(i) the work test; and
(ii) the income test; and
(iii) the Australian
residency test; or
(b) will satisfy those tests on the
day the person becomes the child’s primary carer.
27
Assumptions when making the initial eligibility determination
In deciding whether to make an initial
eligibility determination, 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
comes into force on the day it is made.
29
Notice of the initial eligibility determination
If the Secretary makes an initial
eligibility determination, 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. Subsection 31(2) deals with the main case
and requires that for a person to be eligible for parental leave pay for a
child, the person must (broadly):
(a) satisfy the work test, the
income test and the Australian residency test; and
(b) be the child’s primary
carer; and
(c) not have returned to work;
and
(d) not be entitled to baby
bonus.
There are other eligibility criteria
that apply for more unusual cases—see subsection 31(3) (which deals with when a
child is stillborn or dies) and subsection 31(4) (which allows the PPL rules to
prescribe eligibility criteria).
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 before the day the child was born (for
a primary claimant) or the day the person became the child’s primary carer (for
a secondary claimant).
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 the PPL income limit (which is $150,000 until 30 June
2012 and then indexed).
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 the primary carer of a child. For the main case, a person will not be
eligible for parental leave pay if the person is not the child’s primary carer.
Division 7 sets out when a person
returns to work after the birth of a child. For the main case, a person will
not be eligible for parental leave pay if the person performs more than one
hour of work other than for a permissible purpose. There are 2 permissible
purposes. One is where the person performs the work for another entity on a
keeping in touch day with that entity. The other is where the person performs
the work for a business that the person carries on and the work consists of
overseeing the business or is an occasional administrative task.
Division 2—When a person is eligible for parental leave pay
31
When a person is eligible for parental leave pay
(1) This section sets out when a person is
eligible for parental leave pay for a child on a day.
(2) First, a person is eligible
for parental leave pay for a child on a day if, on that day:
(a) the person satisfies the work test
(see Division 3); and
(b) the person satisfies the income
test (see Division 4); and
(c) the person satisfies the
Australian residency test (see Division 5); and
(d) the person is the primary carer of
the child (see Division 6); and
(e) the person has not returned to
work (see Division 7); and
(f) both of the following are
satisfied:
(i) the person and the
person’s partner are not entitled to baby bonus for the child;
(ii) a former partner of
the person was not entitled to baby bonus for the child when he or she was the
person’s partner.
(3) Second, a person is eligible
for parental leave pay for a child on a day 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 for the child, if paragraphs (2)(d)
and (e) were disregarded; and
(c) the person would have been the
child’s primary carer on that day had the child not been stillborn or died.
(4) Third, a person is eligible
for parental leave pay for a child on a day if, on that day:
(a) if the person is the primary
claimant:
(i) the person satisfies
the work test (see Division 3); and
(ii) the person satisfies
the income test (see Division 4); and
(iii) the person satisfies
the Australian residency test (see Division 5); and
(iv) the person satisfies
the conditions prescribed by the PPL rules; and
(b) if the person is a secondary
claimant or tertiary claimant—the person satisfies the conditions prescribed by
the PPL rules.
(5) Despite subsections (2), (3) and
(4), a person is not eligible for parental leave pay for a child
on a day if, on that day, the person is deceased.
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 under section 33.
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.
33 The
work test period
Primary claimant’s work test period
(1) The work test period for a
primary claimant is the 392 days immediately before:
(a) if the child is born on or before
the expected date of birth of the child—the day the child is born; or
(b) if the child is born after the
expected date of birth of the child—either:
(i) the day the child is
born; or
(ii) if the person does not
satisfy the work test in the work test period that applies under subparagraph (i),
the expected date of birth of the child.
(2) However, for the purposes of making an
initial eligibility determination on a primary claim that is made before the
child is born, the work test period for the primary claimant is
the 392 days immediately before the expected date of birth of the child.
Secondary claimant’s work test period
(3) The work test period for a
secondary claimant is the 392 days immediately before the day the person
becomes the child’s primary carer.
34
When a person performs qualifying work
(1) A person performs qualifying work
if:
(a) the person performs at least one
hour of paid work on a day; or
(b) the person takes a period of paid
leave of at least one hour on a day.
(2) For the purposes of paragraph (1)(b),
the PPL rules may prescribe what is, or is not, taken to be paid leave.
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.
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 56 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 56 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.
Division 4—The income test
Subdivision A—The income test
37
When a person satisfies the income test
A person satisfies the income test
on a day if the person’s adjusted taxable income for the reference income year
is not more than the relevant PPL income limit.
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) if the person is a primary
claimant—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; and
(b) if the person is a secondary
claimant—the income year that ended before the earlier of:
(i) the day the person
made the claim; and
(ii) the day the person
became the child’s primary carer.
40 The
relevant PPL income limit
The relevant PPL income limit
for a person is:
(a) if the person is a primary
claimant—the PPL income limit that applies on the earlier of the following
days:
(i) the day the person
made the claim;
(ii) the day the child was
born; or
(b) if the person is a secondary
claimant—the PPL income limit that applies on the earlier of the following
days:
(i) the day the person
made the claim;
(ii) the day the person
became the child’s primary carer.
41 The
PPL income limit
The PPL income limit that
applies on a day is:
(a) if the day is on or after 1 October
2010 but before 1 July 2012—$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.
Subdivision B—Indexation of the PPL income limit
42
Indexation of the PPL income limit
(1) The amount of the PPL income limit in
section 41 is to be indexed under this Subdivision on 1 July each
year (the indexation day) starting on 1 July 2012.
Working out the indexed amount for the PPL income limit
(2) This is how to work out the indexed
amount for the PPL income limit on the indexation day:
Method statement
Step 1. Work out the amount
(the previous amount) for the PPL 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 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 either of the
following applies:
(a) the person is in Australia;
(b) the person:
(i) is temporarily absent
from Australia for not more than 13 weeks; and
(ii) 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 3 years since the day the person
left Australia.
Effect of a person’s return to Australia within 3 years
(2) If:
(a) a person who has been absent from
Australia for more than 13 weeks, but not more than 3 years, returns to
Australia; and
(b) the person leaves Australia again
less than 13 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 3 years
(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 13 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).
Division 6—Primary carer
47
When a person is the primary carer of a child
(1) A person is the primary carer
of a child on a day in the person’s reference period if:
(a) the child is in the person’s care in
that period; and
(b) the person meets the child’s
physical needs more than anyone else in that period.
(2) A person’s reference period
is the period that is determined by the Secretary for the purposes of making a
payability determination on the person’s claim.
(3) Only one person can be a child’s primary
carer on a particular day.
(4) Despite subsection (1), a person is
not the primary carer of a child on a day if, before that day,
the child has died.
Division 7—Return to work
48
When a person returns to work
A person returns to work
on a day that is on or after the birth of a child if, on that day, the person
performs one hour or more of paid work other than for a permissible purpose.
49
When paid work is for a permissible purpose
Permissible purpose for people other than self‑employed
(1) If a person performs paid work on a day for
another entity (see subsection 35(1)), the person does so for a permissible
purpose if:
(a) the person performs the work for
the entity as an employee, defence force member or law enforcement officer; and
(b) the day is a keeping in touch day
with the entity and would otherwise be a day of leave in a period of leave
granted by that entity; and
(c) the person has not already
performed paid work on 10 keeping in touch days (whether with the entity or
another entity).
Permissible purpose for self‑employed
(2) If a person performs paid work on a day
for a business in the situation referred to in subsection 35(3), the person
does so for a permissible purpose if the work performed by the
person consists of overseeing the business or is an occasional administrative
task for the purposes of the business.
50
Performing paid work on a keeping in touch day
A day on which a person performs paid
work for an entity on a day that would otherwise be a day of leave in a period
of leave granted by that entity is a keeping in touch day if:
(a) the purpose of performing the work
is to enable the person to keep in touch with his or her employment or
engagement in order to facilitate a return to that employment or engagement after
the end of the period of leave; and
(b) both the person and the entity
consent to the person performing work for the entity on that day; and
(c) the day is not within 14 days
after the day the child was born.
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 3 types of claims: a primary claim, a secondary claim
and (in rare cases) a tertiary claim. These claims relate to each other,
although the primary claim is the main one—a secondary or tertiary claim cannot
be made without it. However, it will often be the only claim that is made.
Section 54 sets out who can make a primary claim, a secondary claim or a
tertiary 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.
53
Types of claims
(1) There are 3 types of claims:
(a) a primary claim; and
(b) a secondary claim; and
(c) a tertiary claim.
(2) A primary claim is a claim
in the form approved by the Secretary for primary claims.
(3) A secondary claim is a
claim in the form approved by the Secretary for secondary claims.
(4) A tertiary claim is a claim
in the form approved by the Secretary for tertiary claims.
(5) For the purposes of subsections (2),
(3) and (4), 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 primary claim, secondary claim or tertiary claim
Primary claim
(1) Only the following people can make a
primary claim for a child:
(a) the child’s birth mother;
(b) an adoptive parent of the child;
(c) a person who satisfies the
circumstances prescribed by the PPL rules as being exceptional circumstances in
which a primary claim can be made.
Secondary claim
(2) Only the following people can make a
secondary claim for a child:
(a) the partner of a primary claimant;
(b) a person who:
(i) is a parent of the
child; and
(ii) is not the primary
claimant;
(c) a partner of a person covered by paragraph (b);
(d) a person who satisfies the
circumstances prescribed by the PPL rules as being exceptional circumstances in
which a secondary claim can be made.
Tertiary claim
(3) Only a person who satisfies the
circumstances prescribed by the PPL rules as being exceptional circumstances in
which a tertiary claim can be made can make a tertiary claim for a child.
55 When
a claim is effective
(1) A claim 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);
(b) section 57 (which deals with
the nominated start date);
(c) section 58 (which deals with
expected date of birth etc.);
(d) section 59 (which deals with
tax file number statements);
(e) section 60 (which deals with
when to make the claim).
(2) A claim is also not effective if it is
made by a person who cannot make that type of claim under section 54.
(3) A claim that is not effective is taken
not to have been made.
56
Requirements of the claim
(1) The claim 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.
57 Nominated
start date
(1) If the claim is a primary claim, the claim
must state a specific date (the nominated start date) on which
the primary claimant wants parental leave pay to start being paid.
Note 1: For the purposes of subsection (1), “6
months after the birth of the child” would not be a specific date. However, the
“date of birth of the child” would be.
Note 2: Even though a primary claimant nominates a
specific date, parental leave pay may not be payable from that date because,
for example, the primary claimant has not verified the child’s birth before
that date: see subsection 11(4).
(2) Before a payability determination is made
on the primary claim, the primary claimant may change his or her nominated
start date by notifying the Secretary of the new nominated start date.
(3) If a payability determination is made
that parental leave pay is payable to the primary claimant, the primary
claimant may only change his or her nominated start date (the old date)
by:
(a) notifying the Secretary, before
the old date, of the new nominated start date; and
(b) nominating a new nominated start
date that is on or after the day the person notifies the Secretary of the
change.
58
Expected date of birth and expected day of primary care
Primary claim
(1) If the claim is a primary claim and it is
made before the child’s birth, the claim must specify the child’s expected date
of birth.
Secondary claim
(2) If the claim is a secondary claim and it
is made before the day the secondary claimant expects to become the child’s
primary carer, the claim must specify the day the claimant expects to become
the child’s primary carer.
59 Tax
file number statement
(1) The claim must contain the person’s tax
file number statement, which is a statement of the kind set out in subsection (2),
(3) or (4).
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.
60
When to claim
A claim 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 the child’s
first birthday.
61
Claim may be withdrawn or varied
(1) After making an effective claim, 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 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. Instalments are
payable to a person if those instalment periods overlap with the person’s PPL
period.
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 days (the PPL days) of an instalment period for the
person fall within the person’s PPL period.
(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 is the total
of the daily national minimum wage amounts for each week day, during the
instalment period to which the instalment relates, that is also a PPL day.
(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) Fair Work Australia
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 and 69 (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 secondary claimant for a child if:
(a) a primary claimant owes a debt to
the Commonwealth in relation to amounts paid to, or in relation to, the primary
claimant by way of instalments for the same child; and
(b) the deduction is authorised by the
secondary 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.
70 No
other deductions
(1) An amount must not be deducted from an instalment
except in accordance with section 67, 68 or 69. 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.
Under Division 2, an employer is
only required to pay an instalment to a person if an employer determination has
come into force for the employer and the person (see Part 3‑5) and
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 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.
Employer determination comes into force after
instalment period
(2) If:
(a) a person’s employer becomes
required under subsection (1) to pay an instalment after the start of the
person’s PPL period; 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 PPL period); 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.
(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.
(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 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 in the
person’s PPL period 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 for the person’s PPL
period.
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;
(c) the PPL days for the person for
which the PPL funding amount has been paid;
(d) the daily national minimum wage
amount for each of those PPL days;
(e) any information prescribed by the
PPL rules.
78 PPL
funding amounts not public money
To avoid doubt, a PPL funding amount paid
by the Secretary to an employer (other than an Agency within the meaning of the
Financial Management and Accountability Act 1997) is not public money
for the purposes of that Act.
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, 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 returns to work for
the employer at any time from the birth of the person’s child until the end of
the person’s PPL period;
(g) the person ceases to be employed
by the employer before the end of the person’s PPL period;
(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
for the PPL 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 for the
person’s PPL period.
(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 writing.
Note: This subsection is a civil penalty provision (see
section 146).
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:
(a) the day a decision is made that
has the effect that parental leave pay is not payable to the person (including
a decision that there are no days in the person’s PPL period);
(b) if the employer determination
comes into force:
(i) if the employer
determination is not revoked—the day after the end of the person’s PPL period;
and
(ii) if the employer
determination is revoked—the day of the revocation;
(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 an employer determination is never made for
the person.
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.
Employer determination reviewed
(3) The Secretary must pay an instalment that
is payable to a 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 PPL period;
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 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 PPL day 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 PPL period).
(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 PPL period after review
(1) The Secretary must pay a person each
instalment that is taken to have become payable to the person under section 92
(which deals with the effect of extending a person’s PPL period after a review).
(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 an employer or
the Secretary becomes required to pay instalments to a person after the
person’s PPL period has already started).
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 PPL period
If:
(a) the Secretary or a person’s
employer (the payer) becomes required to pay an instalment to the
person after the start of the person’s PPL period; 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 PPL period;
then the instalments referred to in paragraph (c) are
taken to have become payable on the respective paydays for the instalments.
92 Effect
of extending PPL period after review
If:
(a) a person’s PPL period 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 PPL period is extended by an additional period; 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 payability
determination had always specified the extended PPL 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 PPL
period 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.
Part 3‑5—Employer determinations
Division 1—Guide to this Part
100
Guide to this Part
This Part 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.
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) a payability determination that
parental leave pay is payable to the person, or an initial eligibility
determination for the person, is in force; and
(b) instalments are likely, if the
determination is made, to be payable by the employer to the person for at least
40 consecutive 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 is likely to be an
Australian‑based employee of the employer during whichever of the
following periods applies:
(i) if the Secretary has
made a payability determination that parental leave pay is payable to the
person—the person’s PPL period;
(ii) otherwise—the period
of days for which instalments are likely, if the determination is made, to be
payable to the person by the employer; 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 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 if the Secretary is satisfied of all or any of the following:
(a) the person’s PPL period has ended;
(b) the person is a tertiary 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) a primary claimant
owes a debt to the Commonwealth in relation to amounts paid to, or in relation
to, the primary claimant by way of instalments for a child;
(ii) the person is a
secondary claimant for parental leave pay for the same 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);
(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, 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 that parental leave pay is payable to the person;
(c) if the Secretary has made such a payability
determination for the person—the person’s PPL period;
(d) if the Secretary has not made such
a payability determination for the person—the period the Secretary expects to
specify as the person’s PPL period if he or she were to make such a payability determination
for the person;
(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:
(i) if the Secretary has
made a payability determination that parental leave pay is payable to the person—the
person’s PPL period; or
(ii) if the Secretary has
not made such a payability determination for the person—the person’s expected
PPL period referred to in paragraph 102(3)(d);
(c) in any case—the payday and the
payroll cut‑off for an instalment that would be payable for the
instalment period referred to in paragraph (b) of this subsection.
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 PPL period 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.
(3) The employer must give the notice 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 PPL period 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.
|
|
3
|
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).
|
The day of the decision.
|
|
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.
|
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 SSAT
(6) If, when the Secretary revokes an
employer determination:
(a) an application has been made to
the SSAT for review in relation to the employer determination; and
(b) the SSAT has not determined the
review;
the Secretary must give the Principal Member written
notice of the revocation.
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
PPL period for each specified employee 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; and
(b) after the employer determination
was made, the Secretary makes a payability determination.
(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 PPL period; 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(1)).
(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; 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.
(2) The Secretary must give the employer a
written notice stating:
(a) the effect of the decision
referred to in paragraph (1)(b); and
(b) if the effect of the decision is
that the person has a different PPL period to that specified in the original
payability determination—that different PPL 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 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
117
General power to obtain information
The Secretary may require a person to
give information, or produce a document that is in the person’s custody or
under the person’s control, 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 who
has made an effective claim for parental leave pay 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)).
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 in the person’s custody or under the person’s control
and 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
If the Secretary believes that a person
may have information or a document:
(a) that would help a specified agency
locate another person (the debtor) who owes a debt to the
Commonwealth under or because of this Act; or
(b) that is relevant to the debtor’s
financial situation;
the Secretary may require the person to give the
information, or produce the document, to the specified agency.
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:
(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.
(3) The period specified under subparagraph (2)(b)(ii)
must not end earlier than 14 days after the day the notice is given.
(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 time and place at which the
person is to appear. The time must be at least 14 days after the day the notice
is given.
121
Obligations not affected by State or Territory laws
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.
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(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).
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) This section requires a person to notify
the Secretary of certain things if:
(a) the person makes an effective
claim for parental leave pay; and
(b) the Secretary does not make a payability
determination that parental leave pay is not payable to the person.
(2) The person 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.
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
(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.
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:
(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 section 14 of the Privacy Act
1988.
(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 (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.
131
Offence—soliciting disclosure of protected information
(1) A person commits an offence if:
(a) the person solicits the disclosure
of protected information from an officer or another person; and
(b) the disclosure would be in
contravention of this Subdivision; 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 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 in relation to contraventions of civil
penalty provisions.
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. A person who is given an infringement notice can choose
to pay a penalty. If the penalty is not paid, a civil penalty order 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
145
Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a
contravention of a civil penalty provision is taken to have contravened that
provision.
(2) A person is involved in a
contravention of a civil penalty provision if, and only if, the person:
(a) has aided, abetted, counselled or
procured the contravention; or
(b) has induced the contravention,
whether by threats or promises or otherwise; or
(c) has been in any way, by act or
omission, directly or indirectly, knowingly concerned in or party to the
contravention; or
(d) has conspired with others to
effect the contravention.
146 Civil
penalty provisions
A provision referred to in column 1 of
an item in the table is a civil penalty provision.
|
Civil penalty provisions
|
|
Item
|
Column 1
Civil penalty provision
|
Column 2
Maximum 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
|
147
Civil penalty orders
(1) If the Federal Court or the Federal
Magistrates Court is satisfied that a person has contravened one or more civil
penalty provisions, the court may, on the application of the Secretary or the
Fair Work Ombudsman, order the person to pay to the Commonwealth such pecuniary
penalty, in relation to each contravention, as the court determines to be
appropriate.
Note: Subsection (3) sets out the maximum
penalty that the court may order the person to pay.
(2) An order under subsection (1) is a civil
penalty order.
Determining pecuniary penalty
(3) The pecuniary penalty must not be more
than:
(a) if the person is a body
corporate—5 times the maximum number of penalty units referred to in the
relevant item in column 2 of the table in section 146; and
(b) otherwise—the maximum number of
penalty units referred to in the relevant item in column 2 of the table in
section 146.
(4) In determining the pecuniary penalty, the
court must take into account all relevant matters, including:
(a) the nature and extent of the
contravention; and
(b) the nature and extent of any loss
or damage suffered because of the contravention; and
(c) the circumstances in which the
contravention took place; and
(d) whether the person has previously
been found by a court in proceedings under this Act to have engaged in any
similar conduct; and
(e) the likely impact of the penalty
on the person.
Civil enforcement of penalty
(5) The pecuniary penalty is a civil debt
payable to the Commonwealth.
(6) The Commonwealth may enforce a civil
penalty order as if it were an order made in civil proceedings against the
person to recover a debt due by the person. The debt arising from the order is
taken to be a judgment debt.
148
Proceedings may be heard together
The Federal Court or the Federal
Magistrates Court may direct that 2 or more proceedings for civil penalty
orders are to be heard together.
149
Time limit for application for an order
Proceedings for a civil penalty order
may be commenced no later than 4 years after the contravention.
150
Civil evidence and procedure rules for civil penalty orders
The Federal Court or the Federal
Magistrates Court must apply the rules of evidence and procedure for civil
matters when hearing proceedings for a civil penalty order.
151
Conduct contravening more than one civil penalty provision
(1) If conduct constitutes a contravention of
2 or more civil penalty provisions, proceedings may be instituted under this
Act against a person in relation to the contravention of any one or more of
those provisions.
(2) However, the person is not liable to more
than one pecuniary penalty under this Act in relation to the same conduct.
152
Civil proceedings after criminal proceedings
Neither the Federal Court nor the
Federal Magistrates Court may make a civil penalty order against a person for a
contravention of a civil penalty provision if the person has been convicted of
an offence constituted by conduct that is substantially the same as the conduct
constituting the contravention.
153
Criminal proceedings during civil proceedings
(1) Proceedings for a civil penalty order
against a person for a contravention of a civil penalty provision are stayed
if:
(a) criminal proceedings are commenced
or have already been commenced against the person for an offence; and
(b) the offence is constituted by
conduct that is the same, or substantially the same, as the conduct alleged to
constitute the contravention.
(2) The proceedings for the order (the civil
proceedings) may be resumed if the person is not convicted of the
offence. Otherwise:
(a) the civil proceedings are
dismissed; and
(b) costs must not be awarded in
relation to the civil proceedings.
154
Criminal proceedings after civil proceedings
Criminal proceedings may be commenced
against a person for conduct that is substantially the same as conduct
constituting a contravention of a civil penalty provision regardless of whether
a civil penalty order has been made against the person.
155 Evidence
given in proceedings for penalty not admissible in criminal proceedings
(1) Evidence of information given or evidence
of production of documents by a natural person is not admissible in criminal
proceedings against the person if:
(a) the person previously gave the
evidence or produced the documents in proceedings for a civil penalty order
against the person for a contravention of a civil penalty provision (whether or
not the order was made); and
(b) the conduct alleged to constitute
the offence is the same, or substantially the same, as the conduct alleged to
constitute the contravention.
(2) However, subsection (1) does not
apply to criminal proceedings in relation to the falsity of the evidence given
by the person in the proceedings for the civil penalty order.
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; 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
Magistrates Court 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 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
Giving an infringement notice
Infringement notice given by Secretary
(1) The Secretary may give a person a notice
(an infringement notice) if the Secretary reasonably believes
that the 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);
(d) subsection 157(4), in relation to
a compliance notice given to the person by the Secretary.
Infringement notice given by Fair Work Ombudsman
(2) The Fair Work Ombudsman may give a person
a notice (an infringement notice) if the Fair Work Ombudsman reasonably
believes that the 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 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 the person by the Fair Work Ombudsman.
When infringement notice must be given
(3) The infringement notice must be given
within 12 months of:
(a) if paragraph (1)(d) or
(2)(f) applies—the day on which the 14 day period referred to in subsection 157(3)
ends; and
(b) otherwise—the day on which the
alleged contravention occurred.
Contents of infringement notice
(4) An infringement notice must:
(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
contravention or alleged contravention, including:
(i) the day referred to in
paragraph (3)(a) or (b); and
(ii) the provision of this
Act that was allegedly contravened; and
(d) contain a statement to the effect
that the matter or matters will not be dealt with by the Federal Court or the
Federal Magistrates Court if the penalty specified in the notice is paid to the
Commonwealth, within:
(i) 28 days after the
notice is given; or
(ii) if the Secretary
allows a longer period—that longer period; and
(e) give an explanation of how payment
of the penalty is to be made; and
(f) set out any other matters
prescribed by the PPL rules.
Amount of penalties in infringement notices
(5) An infringement notice that is given to a
body corporate must specify a pecuniary penalty equal to:
(a) 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
(b) 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
(c) otherwise—30 penalty units.
(6) An infringement notice that is given to a
person other than a body corporate must specify a pecuniary penalty equal to:
(a) 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
(b) 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
(c) otherwise—6 penalty units.
160
Withdrawal of an infringement notice
(1) The Secretary may withdraw an
infringement notice that has been given to a person by the Secretary.
(2) The Fair Work Ombudsman may withdraw an
infringement notice that has been given to a person by the Fair Work Ombudsman.
(3) For a withdrawal to be effective, a
written notice that withdraws the infringement notice must be given to the
person within 42 days after the infringement notice was given to the person.
(4) Despite subsection (3), a withdrawal
may be effective if it is given to a person later than 42 days after an
infringement notice is given to the person if the person has applied to a court
for judicial review in relation to the making of an employer determination.
Refund of penalty if infringement notice withdrawn
(5) The Commonwealth is liable to refund the
amount of the penalty specified in an infringement notice if the infringement
notice is withdrawn after the penalty has been paid.
161
What happens if the penalty is paid
(1) Any liability of a person for an alleged
civil penalty is discharged if:
(a) an infringement notice is given to
the person in relation to the alleged civil penalty; and
(b) the penalty is paid in accordance
with the infringement notice; and
(c) the infringement notice is not
withdrawn.
(2) In addition, proceedings under Division 3
must not be brought against the person for the alleged civil penalty.
162
Effect of this Division on civil proceedings
This Division does not:
(a) require an infringement notice to
be given in relation to an alleged civil penalty; or
(b) affect the liability of a person
to have proceedings under Division 3 brought against the person for an
alleged civil penalty if:
(i) the person does not
comply with an infringement notice relating to the contravention; or
(ii) an infringement notice
relating to the contravention is not given to the person; or
(iii) an infringement notice
relating to the contravention is given to the person and later withdrawn; or
(c) limit the discretion of the Federal
Court or the Federal Magistrates Court to determine the amount of a penalty to
be imposed on a person who is found in proceedings under Division 3 to
have contravened a civil penalty provision.
163
Further provision in relation to infringement notices
The Minister may further provide in
relation to infringement notices in the PPL rules.
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 parental leave pay 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. An administrative charge of $50 is also
payable if interest is charged.
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 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 177 (which deals with interest);
(b) section 179 (which imposes an administrative
charge);
(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 PPL
period for the child—immediately after the end of the person’s PPL period; or
(b) otherwise—when subsection (1)
starts to apply in relation to an employer payment.
Note 1: The other person does not have a PPL period for
the child if a payability determination that parental leave pay is payable to
the other person for the child has not been made, or has been set aside. In
such a case, a debt will arise as soon as there is an instalment excess.
Note 2: 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 Secretary
(1) This
section applies if:
(a) the Secretary pays an amount (the Secretary
payment) to, or in relation to, a person for a child by way of an
instalment; and
(b) the total of Secretary payments
paid for the child exceeds the total of amounts that are payable to, or in
relation to, the person for the child as instalments under Part 3‑3
(which deals with the payment of instalments by the Secretary).
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.
Example: If no amounts are payable to, or in relation to,
a person for a child as instalments, the amount of the excess is the total
amount of the Secretary payments.
(3) The debt under subsection (2)
arises:
(a) if the person has a PPL period for
the child—immediately after the end of the person’s PPL period; or
(b) otherwise—when subsection (1)
starts to apply in relation to a Secretary payment.
Note 1: The person does not have a PPL period for the
child if a payability determination that parental leave pay is payable to the
person for the child has not been made, or has been set aside. In such a case,
a debt will arise as soon as there is an excess as referred to in subsection (1).
Note 2: 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.
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:
(a) if the other person has a PPL
period for the child—at the earlier of the following times:
(i) when the Secretary
pays one or more of the instalments to, or in relation to, the other person
under section 85, 86 or 87 (which deal with the payment of arrears);
(ii) immediately after the
end of the other person’s PPL period; or
(b) otherwise—when subsection (1)
starts to apply in relation to an amount paid to the first person.
Note 1: The other person does not have a PPL period for
the child if a payability determination that parental leave pay is payable to
the person for the child has not been made, or has been set aside. In such a
case, a debt will arise as soon as there is an excess referred to in subsection (1).
Note 2: 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
Debt notices—initial notice
Requirement to give initial notice
(1) If a debt due to the Commonwealth under
this Act 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 initial debt 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 initial debt notice;
(f) the day on which the outstanding
amount is due and payable;
(g) that a range of options is
available for repayment of the debt;
(h) the contact details for inquiries
concerning the debt.
Due date
(2) The outstanding amount of the debt is due
and payable on the 28th day after the date of the initial debt notice.
Combining initial and further debt notices
(3) If a notice given under this section
states the matters referred to in paragraphs 174(2)(e) and (f) (which relate to
interest and an administrative charge), the notice is taken also to be a
further debt notice given under section 174.
174
Debt notices—further debt notice if repayments not made
When a further debt notice may be given
(1) This section applies if:
(a) a person has been given a notice
under section 173 for a debt; and
(b) the debt has not been wholly paid;
and
(c) either:
(i) the person has failed
to enter into a debt payment arrangement to pay the outstanding amount of the
debt; or
(ii) the person has entered
into a debt payment arrangement, but has failed to make a payment (or payments)
in accordance with the arrangement.
Contents of further debt notice
(2) The Secretary may give the person a
further notice (the further debt notice) stating the following:
(a) the date the preparation of the
notice is completed (the date of the further debt notice);
(b) the matters referred to in
paragraphs 173(1)(b) to (d);
(c) the outstanding amount of the debt
at the date of the further debt notice;
(d) the matters referred to in
paragraphs 173(1)(f) to (h);
(e) the effect of sections 175, 176,
177 and 179 (which deal with interest and an administrative charge);
(f) how the interest under section 175
is to be calculated.
Note: A person may be taken to have been given a
notice under this section by the giving of an initial notice under section 173
if the matters stated in paragraphs (2)(e) and (f) of this section are
stated in the initial notice (see subsection 173(3)).
175
Interest on debts—when interest becomes payable
Scope
(1) This section applies if a further debt
notice is given under section 174 in relation to a debt.
Final debt payment day
(2) The final debt payment day for
the payment of a debt is the latest of the following days:
(a) the 90th day after the day on
which the outstanding amount of the debt was due and payable;
(b) the 28th day after the date of the
further debt notice;
(c) if the debtor (or another person)
applies in accordance with section 206 for internal review of the decision
to give the notice under section 173, or the further debt notice—the 90th
day after the day on which an officer makes a decision in relation to the
application.
No arrangement made for payment of debt
(3) Subsection (4) applies if:
(a) the person has not entered into a
debt payment arrangement, on or before the final debt payment day, to pay the
outstanding amount of the debt; and
(b) the further debt notice states
that the person will be required to pay interest under subsection (4) of
this section.
(4) The person is liable to pay interest on
any outstanding amount from time to time:
(a) from and including the first day
after the final debt payment day until the debt is wholly paid; and
(b) at the penalty interest rate.
Failure to pay amount due under an arrangement
(5) Subsection (6) applies if:
(a) the person has entered into a debt
payment arrangement to pay the outstanding amount of the debt; and
(b) the person has failed to make a
particular payment in accordance with the arrangement; and
(c) the further debt notice states
that the person will be required to pay interest under subsection (6) of
this section.
(6) The person is liable to pay interest, at
the penalty interest rate, on the outstanding amount from time to time:
(a) if the failure happens on or
before the final debt payment day—from and including the first day after the final
debt payment day until the debt is wholly paid; or
(b) if the failure happens after the final
debt payment day—from and including the day after the day in relation to which
the last payment in relation to the debt was made until the debt is wholly
paid.
Interest not payable on debts incurred because of
Commonwealth administrative error
(7) A person is not liable under this section
to pay interest on a debt, or the proportion of a debt, that was incurred
because of an administrative error made by the Commonwealth or an agent of the
Commonwealth.
176
Interest on debts—application
An amount of interest payable on a debt
under section 175 that has been paid on the debt is to be applied as
follows:
(a) until the debt (excluding
interest) is fully paid—in satisfaction of the amount of the debt that is due
when the payment is made;
(b) after the debt (excluding
interest) is fully paid—in satisfaction of the interest that had become payable
on the debt before the debt was fully paid.
177
Interest on debts—recovery as a debt
The interest payable by a person under
section 175 on the outstanding amount of a debt is a debt due to the
Commonwealth by the person.
178
Interest exemption determinations
(1) The Secretary may determine (by an interest
exemption determination) that interest is not payable, or is not
payable in relation to a particular period, by a person on the outstanding
amount of a debt.
(2) The
Secretary may make an interest exemption determination under this section in
circumstances that include 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 such an arrangement, failing to make a payment (or payments) in
accordance with the arrangement.
(3) An interest
exemption determination may:
(a) relate to a period before, or to a
period that includes a period before, the making of the determination; and
(b) be expressed to be subject to the
person complying with one or more stated conditions.
(4) If a person has been given a further debt
notice requiring the person to pay interest on the debt, the Secretary must
give written notice of the decision to make an interest exemption determination to the person as soon as
practicable after the determination is made.
(5) If a person contravenes a condition, or
conditions, of an interest exemption
determination 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.
(6) The Secretary may cancel or vary an interest exemption determination by
written notice given to the person.
179
Administrative charge
(1) When a person first becomes liable to pay
interest under section 175 in relation to the outstanding amount of a
particular debt, the person is liable to pay an administrative charge of $50 in
relation to the outstanding amount of that debt.
(2) An administrative charge payable by a
person is a debt due to the Commonwealth by the person.
180
Penalty interest rate
Interest rate
(1) The penalty interest rate
is:
(a) 20% per year; or
(b) if a lower rate is prescribed by
the PPL rules under subsection (2)—that lower rate.
(2) The PPL rules may prescribe a rate of
less than 20% per year as the penalty interest rate.
Guidelines
(3) The PPL rules must prescribe guidelines
for the operation of the provisions of this Act dealing with penalty interest.
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 177, 179 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);
(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.
Note: See section 189 for time limits on
recovery by legal proceedings.
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 1: 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.
Note 2: See section 189 for time limits on
recovery by garnishee notice.
(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.
189
Legal proceedings and garnishee notices—time limits for debt recovery
General rule—6 years after officer becomes aware of
debt
(1) Action (debt recovery action)
under section 183 or 184 for the recovery of a debt by legal proceedings
or garnishee notice is not to be started after the end of 6 years starting on
the first day on which an officer becomes aware, or could reasonably be
expected to have become aware, of the circumstances that gave rise to the debt.
Extension of time if debt starts to be paid
(2) If, within the period referred to in subsection (1),
part of the amount owing on the debt is paid, debt recovery action may be
commenced within 6 years starting on the day of the payment.
Extension of time if debt acknowledged
(3) If, within
the period referred to in subsection (1), the person who owes the debt
acknowledges that he or she owes it, debt recovery action may be commenced
within 6 years starting on the day of acknowledgment.
Extension of time following earlier debt recovery
action
(4) If, within
the period referred to in subsection (1), debt recovery action (the first
action) by one method (either legal proceedings or garnishee notice) is
commenced, debt recovery by the other method may be commenced within 6 years
after the end of the first action.
Extension of time following internal Departmental
action
(5) If, within
the period referred to in subsection (1), an action covered by subsection (6)
is commenced, debt recovery action may be commenced within 6 years after the
end of the action.
(6) This
subsection covers the following actions:
(a) a review of a file relating to
action for the recovery of the debt;
(b) other internal Departmental action
relating to action for the recovery of the debt.
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.
(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.
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 secondary
claimant for a child, if the deduction is for the purposes of the recovery of a
debt due to the Commonwealth by the primary claimant in relation to the same
child.
(2) The debt due to the Commonwealth by the
primary 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).
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 177, 179 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, for example because a time limit for recovery action under
that Division has elapsed; 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 177, 179 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 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.
Chapter 5—Review of decisions
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 SSAT or 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
(1) The Secretary must give the Principal Member
written notice of a decision under subsection 203(4) if, when the Secretary
makes the decision, an application has been made to the SSAT for review in
relation to the decision that was reviewed by the Secretary.
(2) 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
(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 head.
(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)
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
head.
(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 law 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 head.
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) a statement to the effect that the
person may, subject to this Act, apply to the SSAT for review of the decision;
and
(b) a statement to the effect that, if
the person is dissatisfied with the decision of the SSAT, application may,
subject to the AAT Act, be made to the AAT for review of the decision of the
SSAT.
(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 SSAT 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, apply to the SSAT for review
of the decision.
Part 5‑2—Review by the Social Security Appeals Tribunal
Division 1—Guide to this Part
213
Guide to this Part
This Part is about the review by the
Social Security Appeals Tribunal (SSAT) of decisions that have been reviewed
under Part 5‑1, and of decisions made personally by particular PPL
agency heads (which are not subject to internal review).
Division 2 allows people whose
interests are affected by claimant decisions to apply for SSAT review.
Division 3 allows employers to
apply for SSAT review of employer determination decisions and employer funding
amount decisions.
214
SSAT objective under this Act
In carrying out its functions under this
Act, the SSAT must pursue the objective of providing a mechanism of review that
is fair, just, economical, informal and quick.
Division 2—Review by SSAT 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 head.
(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) subparagraph 25(1)(c)(ii);
(iii) subsections 53(2), (3)
and (4);
(iv) section 56;
(v) subsection 61(2);
(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 section 117,
118 or 119 (which deal 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 SSAT reviewable claimant decision.
216
SSAT review of claimant decision—application for review
(1) A person whose interests are affected by
an SSAT reviewable claimant decision may apply to the SSAT for review of the
decision.
Note: See section 217 (which deals with making
an application).
(2) An application under subsection (1)
may only be made:
(a) within 28 days after the day the
SSAT reviewable claimant decision was made; or
(b) if the SSAT is satisfied that a
longer period should apply—within the longer period.
(3) A person cannot make an application under
subsection (1) in the person’s capacity as an employer.
217
SSAT review of claimant decision—making of application
(1) A person may apply to the SSAT for review
of an SSAT reviewable claimant decision by:
(a) sending or delivering a written
application to:
(i) an office of the SSAT;
or
(ii) an office of the
Department; or
(iii) if the decision was
made by the CEO or an employee of the Commonwealth Services Delivery Agency—an
office of the Agency; or
(iv) if the decision was
made by the CEO or an employee of Medicare Australia—an office of Medicare
Australia; or
(b) going to an office of the SSAT and
making an oral application; or
(c) contacting an office of the SSAT
by telephone and making an oral application.
(2) If a person makes an oral application in
accordance with paragraph (1)(b) or (c), the person receiving the oral
application must make a written record of the details of the oral application
and note on the record the day on which the application is made.
(3) If a written record of an oral
application is made in accordance with subsection (2), Part 5‑3
has effect as if the written record were a written application.
(4) An application may include a statement of
the reasons for seeking a review of the decision.
218
SSAT review of claimant decision—review following application
If a person applies to the SSAT for
review of an SSAT reviewable claimant decision, the SSAT must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and:
(i) substitute a new
decision; or
(ii) send the matter back
to a PPL agency head for reconsideration in accordance with any directions or
recommendations of the SSAT.
219
SSAT review of claimant decision—powers of the SSAT
The SSAT may, for the purposes of
reviewing a decision under this Division, exercise all the powers and
discretions that are conferred by this Act on the Secretary.
220
SSAT review of claimant decision—when SSAT decision comes into force
A decision of the SSAT under this Division
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 decision of the
SSAT.
221
SSAT review of claimant decision—variation of decision before review completed
(1) If an officer varies an SSAT reviewable
claimant decision after an application has been made to the SSAT for review of
the decision but before the determination of the review, the application for
review is taken to be an application for review of the decision as varied.
(2) If an officer sets aside an SSAT
reviewable claimant decision and substitutes a new decision after an
application has been made to the SSAT for review of the original decision but
before the determination of the review, the application for review is taken to
be an application for review of the new decision.
(3) Subsection (4) applies if:
(a) a person applies to the SSAT for
review of an SSAT reviewable claimant decision; and
(b) before determination of the
review, an officer varies the decision or sets it aside and substitutes a new
decision.
(4) The person may either:
(a) proceed with the application for
review of the decision as varied or the new decision; or
(b) withdraw the application under
section 251.
222
SSAT review of claimant decision—parties to review
(1) The
parties to a review by the SSAT under this Division are:
(a) the applicant; and
(b) the Secretary; and
(c) if the claimant decision was made
by the CEO or an employee of the Commonwealth Services Delivery Agency—the CEO
of the Agency; and
(d) if the claimant decision was made
by the CEO or an employee of Medicare Australia—the CEO of Medicare Australia;
and
(e) any other person who has been made
a party to the review under subsection (3).
(2) If a person has applied under section 216
for review of an SSAT reviewable claimant decision, any other person whose
interests (other than interests the person has in the person’s capacity as an
employer) are affected by the decision may apply, in writing, to the Principal
Member to be made a party to the review.
(3) The Principal Member may direct that a
person who has applied under subsection (2) be made a party to the review.
Principal Member may remove parties
(4) The Principal Member may direct that a
party to a review no longer be a party to the review if:
(a) the party consents; or
(b) the Principal Member is satisfied
that the party does not intend to participate in or proceed with the review:
(i) after having
communicated with the party; or
(ii) after having made
reasonable attempts to communicate with the party and having failed to do so;
or
(c) the party contravenes a direction
or order of the SSAT or of the Principal Member given in relation to the
review; or
(d) the party fails to attend the
hearing.
Division 3—Review by SSAT 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 head.
Note: Part 5‑1 deals with internal
review.
(2) A decision to which this Division applies
is an SSAT reviewable employer decision.
224
SSAT review of employer decision—application for review
(1) An employer may apply to the SSAT for
review of an SSAT reviewable employer decision that relates to the employer and
a person if the decision is an employer determination decision and 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)
or (e) is not satisfied in relation to the employer determination.
Note 1: See section 225 (which deals with making an
application).
Note 2: 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 3: 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.
(2) An employer may apply to the SSAT for
review of an SSAT reviewable employer decision that relates to the employer if
the decision is an employer funding amount decision.
Note: See section 225 (which deals with making an
application).
(3) An application under subsection (1)
or (2) may only be made within 14 days after the day on which the SSAT
reviewable employer decision was made.
225
SSAT review of employer decision—making of application
(1) An employer may apply to the SSAT for
review of an SSAT reviewable employer decision by sending or delivering a
written application to an office of the SSAT.
(2) The application must:
(a) be in the form approved by the
Principal Member; and
(b) if the application is for review
of an employer determination decision:
(i) specify the condition
or conditions that the employer believes are not satisfied; and
(ii) if paragraph 224(1)(a)
applies to the application—state whether the employer believes that an election
under section 109 applies to the person; and
(c) be accompanied by a statutory
declaration verifying the application; and
(d) be accompanied by any other
documents required or allowed by the form.
(3) An application may include a statement of
the reasons for seeking a review of the decision.
226
SSAT review of employer decision—review following application
If an employer applies to the SSAT for
review of an SSAT reviewable employer decision, the SSAT must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and:
(i) substitute a new
decision; or
(ii) send the matter back
to a PPL agency head for reconsideration in accordance with any directions or
recommendations of the SSAT.
227
SSAT review of employer decision—powers of the SSAT
The SSAT may, for the purposes of
reviewing a decision under this Division, exercise all the powers and
discretions that are conferred by this Act on the Secretary.
228
SSAT review of employer decision—when SSAT decision comes into force
A decision of the SSAT under this
Division comes into force immediately on the giving of the decision.
229
SSAT review of employer decision—variation of decision before review completed
(1) If an officer varies an SSAT reviewable
employer decision after an application has been made to the SSAT for review of
the decision but before determination of the review, the application for review
is taken to be an application for review of the decision as varied.
(2) If an officer sets aside an SSAT
reviewable employer decision and substitutes a new decision after an
application has been made to the SSAT for review of the original decision but
before the determination of the review, the application for review is taken to
be an application for review of the new decision.
(3) Subsection (4) applies if:
(a) an employer applies to the SSAT
for review of an SSAT reviewable employer decision; and
(b) before determination of the
review, an officer varies the decision or sets it aside and substitutes a new
decision.
(4) The employer may either:
(a) proceed with the application for
review of the decision as varied or the new decision; or
(b) withdraw the application under
section 251.
230
SSAT review of employer decision—parties to review
The
parties to a review by the SSAT under this Division are:
(a) the employer; and
(b) the Secretary; and
(c) if the relevant decision was made
by the CEO or an employee of the Commonwealth Services Delivery Agency—the CEO
of the Agency; and
(d) if the relevant decision was made
by the CEO or an employee of Medicare Australia—the CEO of Medicare Australia.
Part 5‑3—Procedures for review by the Social Security Appeals
Tribunal
Division 1—Guide to this Part
231
Guide to this Part
This Part is about the procedures to
be followed when the Social Security Appeals Tribunal (SSAT) is reviewing a
decision.
Division 2 requires the Secretary
and the Principal Member to prepare for the review, arrange for a hearing and
notify parties and potential parties.
Division 3 sets out how people
other than PPL agency heads may make submissions to the SSAT.
Division 4 sets out how PPL
agency heads may make submissions to the SSAT.
Division 5 contains other
evidentiary provisions, including the Principal Member’s power to obtain
information.
Division 6 provides for pre‑hearing
conferences to be held. A pre‑hearing conference may result in the SSAT
not needing to conduct the review.
Division 7 provides for the
hearing of the review.
Division 8 deals with
miscellaneous procedural matters.
Division 9 requires the SSAT to
give notice of its decision on review.
Division 10 allows obvious errors
in decisions and statements of reasons to be corrected.
Division 11 allows a party to an
SSAT review of an employer decision to appeal to the Federal Court, on a
question of law, in the same way that a party to an AAT review may do so. It
also allows the SSAT to refer questions of law to the Federal Court.
Division 2—Preliminary procedures
232
Procedure on receipt of application for review by SSAT
(1) If an application for review by the SSAT
of a decision is sent or delivered to an office of the Department, of the
Commonwealth Services Delivery Agency or of Medicare Australia, the Secretary
must send the application to the Principal Member as soon as practicable and,
in any case, not later than 7 days after the application is received at the
office.
(2) If:
(a) an application for review of a
decision is sent or delivered to an office of the SSAT; or
(b) the Secretary sends an application
for review of a decision to the Principal Member in accordance with subsection (1);
the Principal Member must give the applicant and the
Secretary written notice that the application has been received.
(3) Within 28 days after receiving notice of
the making of an application from the Principal Member, the Secretary must send
to the Principal Member:
(a) a statement about the decision
under review that:
(i) sets out the findings
of fact made by the person who made the decision; and
(ii) refers to the evidence
on which those findings were based; and
(iii) gives the reasons for
the decision; and
(b) the original or a copy of every
document or part of a document that:
(i) is in the possession,
or under the control, of the Secretary; and
(ii) relates to the
applicant; and
(iii) is relevant to the
review of the decision.
(4) If the
Principal Member asks the Secretary to send the statement and documents
referred to in subsection (3) by a day earlier than the day fixed by that
subsection, the Secretary must take all reasonable steps to comply with the
Principal Member’s request.
(5) If:
(a) after the end of the period
referred to in subsection (3) but before the determination of the review,
the Secretary obtains possession of a document; and
(b) the Secretary considers that the
document or a part of the document is relevant to the review; and
(c) a copy of the document or the part
of the document has not been sent to the Principal Member in accordance with subsection (3);
the Secretary must send a copy of the document or the part
of the document to an office of the SSAT as soon as practicable after obtaining
possession of the document.
(6) If the Secretary must provide the
Principal Member with a document under this section, the Secretary must provide
the Principal Member with:
(a) if the Principal Member requests
the Secretary to provide a specified number of copies of the document—that
number of copies of the document; or
(b) otherwise—2 copies of the
document.
233
Parties to be given statements about the decision under review
(1) Within 28 days after receiving the notice
under subsection 232(2), the Secretary must give each party to the review a
copy of the statement and documents referred to in subsection 232(3).
(2) As soon as practicable after the
Secretary sends a document to an office of the SSAT under subsection 232(5),
the Secretary must give each party to the review a copy of the document.
(3) The Principal Member may direct, in
writing, a person who is required to be given a copy of a statement or a
document in accordance with subsection (1) or (2):
(a) not to disclose information in the
statement or document; or
(b) not to disclose information in the
statement or document except in the circumstances, or for the purposes,
specified in the direction.
Offence
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes a
direction under subsection (3).
Penalty for contravention of this subsection: Imprisonment for
2 years.
234
Arrangements for hearing of application
(1) If an application is made to the SSAT for
review of a decision, the Principal Member must fix a day, time and place for
the hearing of the application.
(2) The Principal Member must give the
applicant and any other parties to the review written notice of the day, time
and place fixed for the hearing of the application.
(3) The notice under subsection (2) must
be given a reasonable time before the day fixed for the hearing.
235
Notice of application to person affected by SSAT reviewable claimant decision
(1) If:
(a) an application has been made to
the SSAT for review of an SSAT reviewable claimant decision; and
(b) the Principal Member is satisfied
that the interests of a person (other than interests the person has in the
person’s capacity as an employer) who is not a party to the review are affected
by the decision;
the Principal Member must take all reasonable steps to
give the person written notice that an application has been made to the SSAT
for review of the decision.
(2) The notice:
(a) must be in writing; and
(b) must include notice of the
person’s right under section 222 to apply to the Principal Member to be
added as a party to the review; and
(c) may be given at any time before
the determination of the review.
(3) The Principal Member must give each party
to the review a copy of the notice.
Division 3—Submissions from parties other than PPL agency heads
236
Division does not apply in relation to PPL agency heads
This Division does not apply in relation
to a party to a review of a decision who is a PPL agency head.
237
Submissions to SSAT
(1) A party to a review of a decision may
make oral or written submissions to the SSAT, or both oral and written
submissions.
Note 1: The Principal Member may direct that a hearing
be conducted without oral submissions (see section 238).
Note 2: Also, a hearing may proceed without oral
submissions from a party in the circumstances set out in section 239.
(2) The party may have another person make
submissions to the SSAT on behalf of the party.
(3) The Principal Member may determine that
submissions to the SSAT by the party or the party’s representative are to be
made by telephone or by means of other electronic communications equipment.
(4) Without limiting subsection (3), the
Principal Member may make a determination under subsection (3) in relation
to an application if
(a) the application is urgent; or
(b) the party lives in a remote area
and unreasonable expense would be incurred if the party or the party’s
representative had to travel to the place at which the hearing is to be held;
or
(c) the party has failed to attend the
hearing and has not indicated that he or she intends to attend the hearing; or
(d) the party is unable to attend the
hearing because of illness or infirmity.
(5) If the party is not proficient in
English, the Principal Member may give directions in relation to the use of an
interpreter in relation to the hearing of the review.
238
SSAT hearings on written submissions only
(1) The Principal Member may direct that a
hearing be conducted without oral submissions from the parties if:
(a) the Principal Member considers
that the review could be determined fairly on the basis of written submissions
by all the parties to the review; and
(b) all parties to the review consent
to the hearing being conducted without oral submissions.
(2) If the Principal Member gives a direction
under subsection (1), the Principal Member must give each of the parties
to the review written notice:
(a) informing the party of the
direction; and
(b) inviting the party to submit
written submissions; and
(c) specifying the address to which
the written submissions are to be delivered; and
(d) specifying the time within which
the written submissions are to be delivered.
(3) The time specified under paragraph (2)(d)
must be such as to allow a reasonable period for the parties to make written
submissions.
(4) Despite subsection (1), the SSAT, as
constituted for the hearing, may, if it considers necessary after taking into
account the written submissions made by the parties, make an order permitting
the parties to make oral submissions to the SSAT at the hearing of the
application for review.
239
SSAT hearings without oral submissions by party
(1) If a party to a review of a decision has
informed the Principal Member that the party does not intend to make oral
submissions to the SSAT, the SSAT may proceed to hear the application for
review without oral submissions from the party.
(2) If:
(a) the Principal Member has
determined that oral submissions to the SSAT by a party or a party’s
representative are to be made by telephone or by means of other electronic
communications equipment; and
(b) on the day fixed for the hearing
the presiding member has been unable to contact the party or the party’s
representative (as the case may be) after taking all reasonable steps to do so;
the Principal Member may authorise the SSAT to proceed to
hear the application without oral submissions from the party or the party’s
representative (as the case may be).
(3) If:
(a) the Principal Member has not
determined that oral submissions to the SSAT by a party or a party’s
representative are to be made by telephone or by means of other electronic
communications equipment; and
(b) the party or the party’s
representative (as the case may be) does not attend the hearing at the time
fixed for the hearing;
the Principal Member may authorise the SSAT to proceed to
hear the application without oral submissions from the party or the party’s
representative (as the case may be).
(4) If the Principal Member gives an
authorisation under subsection (2) or (3), the SSAT may proceed to hear
the application in accordance with the authorisation.
(5) The Principal Member may revoke an
authorisation under subsection (2) or (3).
Division 4—Submissions from PPL agency heads
240
Submissions from PPL agency heads
(1) A PPL agency head who is a party to a
review of a decision may make written submissions to the SSAT.
PPL agency head may request permission to make oral
submissions etc.
(2) The PPL agency head may, by writing,
request the Principal Member for permission to make:
(a) oral submissions to the SSAT; or
(b) both oral and written submissions
to the SSAT.
The request must explain how such submissions would assist
the SSAT.
(3) The Principal Member may, by writing,
grant the request if, in the opinion of the Principal Member taking into
account the objective laid down by section 214, such submissions would
assist the SSAT.
SSAT may order PPL agency head to make oral submissions
etc.
(4) The Principal Member may order the PPL
agency head to make:
(a) oral submissions to the SSAT; or
(b) both oral and written submissions
to the SSAT;
if, in the opinion of the Principal Member taking into
account the objective laid down by section 214, such submissions would
assist the SSAT.
Oral submissions by telephone etc.
(5) For the purposes of subsections (3)
and (4), the Principal Member may determine that oral submissions to the SSAT
by the PPL agency head are to be made by telephone or by means of other
electronic communications equipment.
(6) Subsection (5) does not limit subsection (3)
or (4).
Division 5—Other evidence provisions
241
Evidence on oath or affirmation
The SSAT may take evidence on oath or
affirmation for the purposes of a review of a decision.
242
Provision of further information by Secretary
(1) The Principal Member may ask the
Secretary to provide the SSAT with information or a document the Secretary has
and that is relevant to the review of a decision.
(2) The Secretary must comply with a request
under subsection (1) as soon as practicable and, in any event, not later
than 14 days after the request is made.
243
Exercise by Secretary of information‑gathering powers
(1) The Principal Member may ask the
Secretary to exercise the Secretary’s powers under section 117 (which
deals with the Secretary’s general power to obtain information) if the
Principal Member is satisfied that a person has information, or has custody or
control of a document, that is relevant to the review of a decision.
(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.
244
Power to obtain information
(1) If the Principal Member reasonably
believes that it is necessary for the purposes of a review, he or she may, by
written notice, direct a person:
(a) to give to the SSAT, within the
period and in the manner specified in the notice, information that is relevant
to the review; or
(b) to produce to the SSAT, within the
period and in the manner specified in the notice, documents that are relevant
to the review; or
(c) to attend a hearing and answer
questions:
(i) at a reasonable time
specified in the notice; and
(ii) at a reasonable place
specified in the notice.
(2) The period specified in a notice given
under paragraph (1)(a) or (b) must be at least 14 days after the notice is
given.
Offence
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes a
direction under subsection (1).
Penalty: Imprisonment for 6 months.
Notice to set out the effect of offence provisions
(4) A notice under subsection (1) must
set out the effect of the following provisions:
(a) subsection (3);
(b) section 137.1 of the Criminal
Code (about giving false or misleading information);
(c) section 137.2 of the Criminal
Code (about producing false or misleading documents).
Payment of expenses
(5) If a person is required under this
section to attend a hearing, the SSAT must determine that the Commonwealth must
pay the reasonable costs that are:
(a) incurred by the person for travel
and accommodation in relation to the hearing; and
(b) specified in the determination.
(6) If the SSAT makes a determination under subsection (5),
the costs to which the determination relates are payable by the Commonwealth.
Division 6—Pre‑hearing conferences
245
Pre‑hearing conferences
(1) Before the hearing of a review commences,
the Principal Member may convene one or more conferences with the parties to
the review if he or she considers that it would assist in the conduct and
consideration of the review to do so.
(2) At a conference, the Principal Member may:
(a) fix a day or days for the hearing;
and
(b) give directions about the time
within which submissions are to be made to the SSAT; and
(c) give directions about the time
within which evidence is to be brought before the SSAT; and
(d) give directions about what
evidence is to be brought before the SSAT.
(3) Paragraph (2)(d) does not limit the
evidence that may be brought before the SSAT.
Restrictions on disclosure of information obtained at a
conference
(4) The Principal Member may direct, in
writing, a person who is present at a conference:
(a) not to disclose information
obtained by the person at the conference; or
(b) not to disclose information
obtained by the person at the conference except in the circumstances, or for
the purposes, specified in the direction.
(5) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes a
direction under subsection (4).
Penalty for contravention of this subsection: Imprisonment for
2 years.
246
Powers of SSAT if parties reach agreement
(1) If:
(a) at a pre‑hearing conference
under section 245 with the parties to a review, the parties agree to the
terms of a decision of the SSAT:
(i) in the review; or
(ii) in relation to a part
of the review, or a matter arising out of the review;
that would be acceptable to the
parties; and
(b) before the hearing of the review
commences, the terms of the agreement are:
(i) put in writing; and
(ii) signed by or on behalf
of the parties; and
(iii) lodged with the SSAT;
and
(c) before the hearing of the review
commences, the SSAT is satisfied that a decision in those terms, or consistent
with those terms, would be within the powers of the SSAT;
the SSAT may act in accordance with whichever of subsection (2)
or (3) is relevant.
(2) If the agreement reached is an agreement
as to the terms of a decision of the SSAT in the review, the SSAT may make a
decision in accordance with those terms without holding a hearing of the
review.
(3) If the agreement relates to a part of the
review, or a matter arising out of the review, the SSAT may in its decision in
the review give effect to the terms of the agreement without dealing at the
hearing of the review with the part or matter to which the agreement relates.
Division 7—The hearing
247 Hearing
procedure
(1) The SSAT, in reviewing a decision:
(a) is not bound by legal
technicalities, legal forms or rules of evidence; and
(b) must act as speedily as a proper
consideration of the review allows; and
(c) in determining what a proper consideration
of the review requires, must take into account the objective laid down by
section 214.
(2) The SSAT may inform itself on any matter
relevant to a review of a decision in any manner it considers appropriate.
248
Hearing in private
(1) The hearing of a review must be in
private.
(2) The Principal Member may give directions,
in writing or otherwise, as to the persons who may be present at any hearing of
a review.
(3) In giving directions under subsection (2),
the Principal Member must take into account the wishes of the parties and the
need to protect their privacy.
249
Restrictions on disclosure of information obtained at hearing
(1) The Principal Member may direct, in
writing, a person who is present at the hearing of a review:
(a) not to disclose information
obtained by the person in the course of the hearing; or
(b) not to disclose information
obtained by the person in the course of the hearing except in the
circumstances, or for the purposes, specified in the direction.
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes a
direction under subsection (1).
Penalty for contravention of this subsection: Imprisonment for
2 years.
Division 8—Other procedural matters
250
Adjournment of SSAT hearings
(1) The SSAT may adjourn the hearing of a
review of a decision from time to time.
(2) Without limiting subsection (1), the
SSAT may refuse to adjourn the hearing of a review if:
(a) the hearing has already been
adjourned on 2 or more occasions; or
(b) the SSAT is satisfied that to
grant an adjournment would be inconsistent with the pursuit of the objective
laid down by section 214.
251
Withdrawal of application for review
(1) An applicant for review of a decision may
withdraw the application at any time.
(2) An applicant may withdraw an application
by:
(a) sending by any means, or
delivering, written notice of withdrawal of the application to:
(i) an office of the SSAT;
or
(ii) an office of the
Department; or
(iii) an office of another Commonwealth
agency, where the Secretary has approved the office for the purposes of this
subparagraph; or
(b) going to an office of the SSAT and
orally withdrawing the application; or
(c) contacting an office of the SSAT
by telephone and orally withdrawing the application.
(3) If a person withdraws an application in
accordance with paragraph (2)(b) or (c), the person who receives the oral
withdrawal must make a written record of the day on which the withdrawal was
made.
(4) If a person withdraws an application by
sending or delivering written notice of withdrawal to an office of a
Commonwealth agency, the head of the agency must send a notice of the
withdrawal to the Principal Member as soon as practicable and, in any event,
not later than 7 days after the notice of withdrawal is received at the office
of the agency.
252
Dismissal of an application
(1) If:
(a) a person or an employer makes an
application to the SSAT for review of a decision; and
(b) the Principal Member is satisfied:
(i) after having
communicated with the applicant; or
(ii) after having made
reasonable attempts to communicate with the applicant and having failed to do
so;
that the applicant does not
intend to proceed with the application;
the Principal Member may dismiss the application.
(2) If the Principal Member dismisses an
application under subsection (1), the application is taken to have been
withdrawn when the application was dismissed.
253
Presiding member at SSAT hearing
If the SSAT is constituted by 2 or more
members for the purposes of the review of a decision, the Principal Member must
designate one of those members as the member who must preside at the hearing of
the review.
254
Decision of questions before SSAT
(1) This section applies if the SSAT is
constituted by 2 or more members for the purposes of the review of a decision.
(2) A question arising before the SSAT on a
review must be decided according to the opinion of a majority of the members
constituting the SSAT for the purposes of the review.
(3) However, if, on a question arising on a
review, the opinions of the members of the SSAT are equally divided, the
question must be decided according to the opinion of the member presiding.
255
Directions as to procedure for hearings
Directions by Principal Member
(1) The Principal Member:
(a) may give general directions as to
the procedure to be followed in relation to the review of decisions under this
Act; and
(b) may give directions as to the
procedure to be followed in relation to a particular review.
Note: Directions may be given to the SSAT or to
parties to reviews.
(2) A direction under subsection (1)
must not be inconsistent with any provision of this Act.
(3) A direction under paragraph (1)(b)
may be given before or after the hearing of the particular review has
commenced.
Directions by presiding member
(4) The presiding member of the SSAT as
constituted for the purposes of a particular review may give directions as to
the procedure to be followed in relation to the review.
(5) A
direction under subsection (4) must not be inconsistent with:
(a) any provision of this Act; or
(b) a direction under subsection (1)
of this section.
(6) A direction under subsection (4) may
be given before or after the hearing of the particular review has commenced.
Directions must take SSAT objective into account
(7) Directions under this section must take
into account the objective laid down by section 214.
Legislative instrument status of directions
(8) A general direction made under paragraph (1)(a)
is a legislative instrument.
(9) A direction made under paragraph (1)(b)
or subsection (4) is not a legislative instrument.
256
Costs of review
General rule
(1) A party to a review must bear any
expenses incurred by the party in relation to the review.
When the Commonwealth must pay
(2) The SSAT may determine that the
Commonwealth must pay the reasonable costs that are:
(a) incurred by a party for travel and
accommodation in relation to the review; and
(b) specified in the determination.
(3) If the SSAT arranges for the provision of
a medical service in relation to a party to a review, the SSAT may determine
that the Commonwealth must pay the costs of the provision of the service.
(4) If the SSAT makes a determination under subsection (2)
or (3), the costs to which the determination relates are payable by the
Commonwealth.
Division 9—Notice of decisions
257
Procedure following SSAT decision
SSAT affirms decision
(1) If the SSAT makes a decision on a review
to affirm an SSAT reviewable claimant decision or an SSAT reviewable employer
decision, the SSAT must:
(a) prepare a written statement (the initial
statement) that sets out the decision of the SSAT on the review; and
(b) give each party to the review a
copy of the initial statement within 14 days after making the decision; and
(c) within 14 days after making the
decision, either:
(i) give reasons for the
decision orally to each party to the review and explain that the party may make
a written request for a statement referred to in subparagraph (ii) within
14 days after the copy of the initial statement is given to the party; or
(ii) give each party to the
review a written statement (whether or not as part of the initial statement)
that sets out the reasons for the decision, sets out the findings on any
material questions of fact and refers to evidence or other material on which
the findings of fact are based; and
(d) return to the Secretary any
document that the Secretary has provided to the SSAT in relation to the review;
and
(e) give the Secretary a copy of any
other document that contains evidence or material on which the findings of fact
are based.
(2) If the SSAT does not give a written
statement to a party under subparagraph (1)(c)(ii), the party may, within
14 days after the copy of the initial statement is given to the party, make a
written request of the SSAT for such a statement.
(3) A PPL agency head may also make a written
request of the SSAT for a written statement referred to in subparagraph (1)(c)(ii)
if:
(a) the SSAT has not given such a
statement to the PPL agency head; and
(b) a person applies to the AAT under
section 261 for review of the decision of the SSAT on the review referred
to in subsection (1).
(4) The SSAT must comply with a request under
subsection (2) or (3) within 14 days after the day on which it receives
the request.
SSAT varies decision or sets decision aside
(5) If the SSAT makes a decision on a review
to vary or set aside an SSAT reviewable claimant decision or an SSAT reviewable
employer decision, the SSAT must:
(a) prepare a written statement that:
(i) sets out the decision
of the SSAT on the review; and
(ii) sets out the reasons
for the decision; and
(iii) sets out the findings
on any material questions of fact; and
(iv) refers to evidence or
other material on which the findings of fact are based; and
(b) give each party to the review a
copy of the statement referred to in paragraph (a) within 14 days after
the making of the decision in relation to the review; and
(c) return to the Secretary any
document that the Secretary has provided to the SSAT in relation to the review;
and
(d) give the Secretary a copy of any
document that contains evidence or material on which the findings of fact are
based.
Notice of further review right
(6) When the SSAT determines a review in
relation to an SSAT reviewable claimant decision, the Principal Member must
give each party to the review (other than a PPL agency head) a written notice
that includes a statement to the effect that, if the party is dissatisfied with
the decision of the SSAT, application may, subject to the AAT Act, be made to
the AAT for review of the decision.
Division 10—Correction of errors in decisions or statements of reasons
258
Correction of errors in decisions or statements of reasons
Correction of errors
(1) If:
(a) the SSAT makes a decision on a
review; and
(b) the presiding member of the SSAT
as constituted for the purposes of the review, or the Principal Member, is
satisfied that there is an obvious error in:
(i) the text of the
decision; or
(ii) a written statement of
reasons for the decision;
the presiding member or the Principal Member may alter the
text of the decision or statement.
(2) If the text of a decision or statement is
altered under subsection (1), the altered text is taken to be the decision
of the SSAT or the statement of reasons for the decision (as the case may be).
Examples of obvious errors
(3) Examples of obvious errors in the text of
a decision or statement of reasons are:
(a) an obvious clerical or
typographical error in the text of the decision or statement; and
(b) an inconsistency between the
decision and the statement.
Division 11—Appeals and references of questions of law from the SSAT to
the Federal Court
259
Appeals and references of questions of law in relation to SSAT review of
employer decisions
Scope
(1) This section applies to proceedings
before the SSAT for review of an SSAT reviewable employer decision (SSAT
employer proceedings).
Object
(2) The object of this section is to allow
SSAT employer proceedings to be subject to judicial review as if they were
proceedings before the AAT.
(3) In order to achieve this object, this
section is intended to allow:
(a) a party to SSAT employer
proceedings to appeal to the Federal Court, on a question of law, from any decision
of the SSAT in those proceedings; and
(b) a question of law arising in SSAT
employer proceedings to be referred to the Federal Court for decision.
Modification of AAT Act
(4) Without limiting subsection (3),
Part IVA of the AAT Act applies in relation to SSAT employer proceedings
as if:
(a) references to the Tribunal in that
Part were references to the SSAT; and
(b) paragraph 44(2A)(a) of the AAT Act
allowed an appeal to be instituted within the time prescribed by rules of court
made under the Federal Court of Australia Act 1976, or such further time
as is allowed under those rules; and
(c) the reference to section 43AA
of the AAT Act in paragraph 44(2B)(b) of that Act were a reference to section 258
of this Act (which allows correction of errors in decisions or statements of
reasons); and
(d) the reference to the President in
paragraph 45(1)(a) of the AAT Act were a reference to the Principal Member; and
(e) any other necessary changes were
made.
Note 1: Paragraph 44(2A)(a) of the AAT Act sets a time
limit within which an appeal must be instituted, unless the Federal Court
allows further time to appeal.
Note 2: Paragraph 44(2B)(b) of the AAT Act provides
that the Federal Court may allow further time to appeal if the text of a
decision or a statement of reasons for a decision has been altered under
section 43AA of the AAT Act (which allows errors to be corrected).
Note 3: Paragraph 45(1)(a) of the AAT Act requires the
President of the AAT to concur before the AAT can refer a question of law
arising in proceedings before the AAT to the Federal Court.
(5) However, the following provisions of Part IVA
of the AAT Act do not apply in relation to SSAT employer proceedings:
(a) subsection 44(2) (which allows
certain appeals about standing before the AAT to be made);
(b) paragraphs 44(3)(b) and (c) (which
require appeals to be heard by the Full Court of the Federal Court in some
circumstances);
(c) subsection 44AA(2) (which prevents
appeals being transferred to the Federal Magistrates Court in some circumstances).
Part 5‑4—Review of claimant decisions by the Administrative Appeals
Tribunal
Division 1—Guide to this Part
260
Guide to this Part
This Part is about how the Secretary
or people whose interests are affected by a decision of the Social Security Appeals
Tribunal (SSAT) may apply to the Administrative Appeals Tribunal (AAT) for
review of the SSAT’s decision. Employers may not seek AAT review of SSAT
decisions.
Division 2 allows an application
to be made for AAT review of a decision. It also sets out what happens if the
SSAT’s decision is varied after an application is made to the AAT, and allows
the Secretary to settle proceedings relating to the recovery of a debt.
Division 3 modifies the AAT Act
for the purposes of reviews of decisions made under this Act.
Division 2—Right to review by AAT
261
Review of decisions by AAT
(1) The Secretary or a person whose interests
are affected by a decision of the SSAT to affirm, vary or set aside an SSAT
reviewable claimant decision may apply to the AAT for review of the decision of
the SSAT.
(2) For the purposes of subsection (1),
the decision of the SSAT is taken to be:
(a) where the SSAT affirms an SSAT
reviewable claimant decision—that decision as affirmed; and
(b) where the SSAT varies an SSAT
reviewable claimant decision—that decision as varied; and
(c) where the SSAT sets aside an SSAT
reviewable claimant decision and substitutes a new decision—the new decision;
and
(d) where the SSAT sets aside an SSAT
reviewable claimant decision and sends the matter back to the Secretary for
reconsideration in accordance with any directions or recommendations of the
SSAT—the directions or recommendations of the SSAT.
(3) A person cannot make an application under
subsection (1) in the person’s capacity as an employer.
(4) Subsection (1) has effect subject to
section 29 of the AAT Act.
262
Variation of decision under section 261 before AAT review completed
(1) If an officer varies a decision after an
application has been made under section 261 to the AAT for review of that
decision but before the determination of the application, the application must
be treated as if:
(a) the decision as varied had been
affirmed by the SSAT; and
(b) the application were an
application for review of the decision as varied.
(2) If an officer sets a decision aside and
substitutes a new decision after an application has been made under section 261
to the AAT for review of the original decision but before the determination of
the application, the application must be treated as if:
(a) the SSAT had set aside the
original decision and substituted the new decision; and
(b) the application were an
application for review of the new decision.
(3) If:
(a) a person applies to the AAT for
review of a decision under section 261; and
(b) before determination of the
review, an officer varies the decision or sets the decision aside and
substitutes a new decision;
the applicant may, instead of proceeding with the
application under subsection (1) or (2), withdraw the application.
263
Settlement of proceedings before the AAT
(1) The Secretary may agree with other
parties to proceedings before the AAT that relate to the recovery of a debt
that the proceedings be settled. The agreement must be in writing.
(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.
Division 3—Modification of AAT Act in relation to section 261
review applications
264
Notice of application for review
The AAT Act applies to an application
under section 261 for review of a decision as if the reference in
subsection 29(11) of the AAT Act to the person who made the decision were a
reference to each person who was a party to the review of the decision by the
SSAT (other than the party who made the application under section 261).
265
Parties to a review by the AAT
The AAT Act applies to an application
under section 261 for review 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 party
to the review of the decision by the SSAT.
266
Lodgment of documents with the AAT
(1) The AAT Act applies to an application
under section 261 for review as if references in section 37 of the
AAT Act to the person who made the decision the subject of the application were
references to the following person (the deemed decision‑maker):
(a) if the decision that was reviewed
by the SSAT was made by the CEO or an employee of the Commonwealth Services
Delivery Agency—the CEO of the Agency;
(b) if the decision that was reviewed
by the SSAT was made by the CEO or an employee of Medicare Australia—the CEO of
Medicare Australia;
(c) otherwise—the Secretary.
(2) If a person applies to the AAT under
section 261 for review of a decision, the deemed decision‑maker is
taken to have complied with his or her obligations under paragraph 37(1)(a) of
the AAT Act in relation to the decision if he or she gives the AAT the required
number of copies of:
(a) if the decision was affirmed by
the SSAT—a statement referred to in subparagraph 257(1)(c)(ii); or
(b) otherwise—the statement prepared
by the SSAT under paragraph 257(5)(a).
(3) Subsection (2) does not limit the
powers of the AAT under section 38 of the AAT Act.
267
Power of AAT to obtain additional information
The AAT Act applies to an application
under section 261 for review as if references in section 38 of the
AAT Act to the person who lodges a statement referred to in paragraph 37(1)(a)
of that Act with the AAT were references to the Principal Member.
268
Operation and implementation of the decision under review
(1) The AAT Act applies to an application
under section 261 for review of a decision as if references in subsection
41(4) of the AAT Act to the person who made the decision were references to
each party to the review by the SSAT.
(2) The AAT Act applies to an application
under section 261 for review of a decision as if references in section 41
of the AAT Act to the decision to which the relevant proceedings relate were
references to:
(a) if the SSAT affirmed the original
decision—the original decision; or
(b) if the SSAT varied the original
decision:
(i) the original decision
as varied by the SSAT; and
(ii) the original decision;
or
(c) if the SSAT set aside the original
decision and substituted a new decision:
(i) the new decision; and
(ii) the original
decision; or
(d) if the SSAT set aside the original
decision and sent the matter back to the Secretary for reconsideration in
accordance with any directions or recommendations of the SSAT:
(i) any decision made
because of that reconsideration; and
(ii) the original decision.
(3) For the purposes of subsection (2),
the original decision is the decision that was reviewed by the SSAT.
269
Failure of party to appear
The AAT Act applies to the review of a
decision on an application under section 261 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 5‑5—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,
the SSAT or the AAT (the review body) is reviewing a decision
under 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, the SSAT 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, the SSAT 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.
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 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 of placement of the
adopted child (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
circumstance, 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 of placement of the child; and
(c) a reference to the expected date
of birth of the child were a reference to the expected day of placement of the
child; and
(d) a reference to a child’s first
birthday were a reference to the first anniversary of the day of placement of
the child; 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) as part of the process for the
adoption of the child by a person, the child is, or is to be, entrusted to the
care of the person by an authorised party; and
(b) the child is, or will be, under 16
on the day of placement of the child.
Meaning of day of placement
(3) The day of placement of a
child with a person is the day on which, as part of the process for the
adoption of a child by a person, the child is entrusted to the care of the
person by an authorised party.
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
(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
Primary carers 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 31 and 47) applies
as if a reference to the claimant becoming or being the child’s primary carer were
a reference to the claimant having become or been the child’s primary carer had
the child not been stillborn or died.
Note: Section 31 deals with eligibility for
parental leave pay and section 47 defines who is a primary carer.
(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
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.
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 this
Act; and
(b) direct that the whole or a
specified part of an instalment payable to the nominee’s principal 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 this Act.
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 of instalments 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
(1) Any act that may be done by a person
under, or for the purposes of, this Act (other than Division 2 or 3) may
be done by the person’s correspondence nominee.
Note: This section is subject to section 296
(which deals with the right of the nominee to attend with a principal) and subsection (4)
of this section.
(2) Without limiting subsection (1), an
application or claim that may be made under this Act by a person may be made by
the person’s correspondence nominee on behalf of the person, and an application
or claim so made is taken to be made by the person.
(3) 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.
(4) If, under a provision of this Act, the
Secretary gives a notice to a person who has a correspondence nominee, subsection (1)
does not extend to an act that is required by the notice to be done by the
person.
286
Giving of notices to correspondence nominee
(1) Any notice that the Secretary is
authorised or required by this Act to give to a person may be given by the
Secretary to the person’s correspondence nominee.
(2) The notice:
(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
This Part deals with miscellaneous
matters.
Division 2 provides for the Paid Parental
Leave Rules. The PPL rules are made by the Minister by legislative instrument.
They are subordinate legislation and provide rules that operate in addition to those
in this Act.
Division 3 confers jurisdiction
on the Federal Court and the Federal Magistrates Court.
Division 4 deals with other
miscellaneous matters (such as delegations and regulations).
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 Magistrates Court
Jurisdiction is conferred on the Federal
Magistrates Court 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
(1) The Secretary may, in writing, delegate
all or any of his or her powers under this Act (other than Divisions 3 and
5 of Part 4‑2 and paragraph 128(1)(b) (which deal with civil penalty
orders, infringement notices and 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;
but does not include the CEO or
an employee of the Commonwealth Services Delivery Agency.
(2) The Secretary may, in writing and in
accordance with service arrangements, delegate all or any of his or her powers
under this Act (other than Divisions 3 and 5 of Part 4‑2 and
paragraph 128(1)(b) (which deal with civil penalty orders, infringement notices
and disclosing information to Agency Heads)) to the CEO of, or an employee of,
the Commonwealth Services Delivery Agency or Medicare Australia.
(3) The Secretary may, in writing, delegate
the Secretary’s powers under Division 3 or 5 of Part 4‑2 (which
deal with civil penalty orders and infringement notices) to:
(a) the CEO of the Commonwealth
Services Delivery Agency or Medicare Australia; or
(b) an SES employee or an acting SES
employee.
(4) The Secretary cannot delegate to anyone
except the CEO of the Commonwealth Services Delivery Agency or Medicare
Australia 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 that power to
a CEO, the CEO cannot, despite any other provision in the Commonwealth
Services Delivery Agency Act 1997 or the Medicare Australia Act 1973,
delegate the power to an employee of the Commonwealth Services Delivery Agency
or Medicare Australia.
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.
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.