Explanatory Memorandum
Circulated By the Authority of the Minister for Families, Housing, Community Services and Indigenous Affairs, the Hon Jenny Macklin MpSchedule 1 - Maternity immunisation allowance
Summary
This Schedule will make amendments for better alignment of maternity immunisation allowance (MIA) with the National Immunisation Program by paying the allowance in two payments for children who meet the 18 month and four year-old immunisation requirements. The Schedule will also extend eligibility for the allowance to children adopted from outside Australia who enter Australia before turning 16 and who are immunised appropriately after arrival, and make minor modifications to the rules for determining entitlement to the allowance.
In this Schedule, the A New Tax System (Family Assistance) Act 1999 is referred to as 'the Family Assistance Act', and the A New Tax System (Family Assistance ) ( Administration) Act 1999 as 'the Family Assistance Administration Act'.
Background
MIA in two payments
Current eligibility for MIA is limited to children up to the age of two, and, once eligibility is established, MIA is paid only once. This measure will result in two half payments of MIA being available for children up to the age of five. An additional category will allow eligibility for a payment of MIA to arise when a child is between four and five years of age. For a child who is alive four years after birth, and meets the immunisation requirements between the ages of four and five, eligibility for MIA will arise, provided the child is an FTB child of the individual claiming MIA at the date the immunisation requirements are met, and the individual is eligible for family tax benefit in respect of the child, or would be so eligible except that their rate of family tax benefit is nil.
MIA eligibility for children adopted from outside Australia
Adoption
Children born outside Australia may be adopted prior to entering Australia. Alternatively, it may happen that the adoption is not yet completed and the child arrives in Australia as part of the process of adoption. The eligibility rules for MIA for adopted children who are born outside Australia are being broadened. For eligibility for MIA to arise in respect of a child, the child must be born outside Australia, be entrusted to the care of the person adopting the child by an authorised party, and arrive in Australia (with an exception in the case of the death of a child), while under the age of 16. The adoption may occur under the law of any place.
The time at which eligibility will arise
For parity with Australian-born children, eligibility for MIA for children adopted from overseas is dealt with in two groupings, based upon whether the child arrived in Australia on or before the day of their 3rd birthday ('younger overseas adopted children'), or on any day after their 3rd birthday but before they turn 16 ('older overseas adopted children').
For current MIA, an initial timeframe of 18 months from the child's birth is allowed for the basic schedule of immunisations to be completed. For similar reasons, eligibility for MIA for the group of younger overseas adopted children cannot arise before the child reaches the age of 18 months. The immunisation requirements set out in section 6 of the Family Assistance Act may then be met at any time until the child turns four. For this group, the second period of eligibility also covering Australian-born children for a second half payment of MIA between ages four and five will apply, provided immunisation requirements are met prior to the child turning five. Death of the child up to age five will similarly be covered by the provisions also covering Australian-born children.
For older overseas adopted children, the child must meet the immunisation requirements set out in section 6 of the Family Assistance Act within the last six months of the period of two years beginning on the day of their arrival in Australia. If the child dies without meeting the immunisation requirements either prior to entering Australia but after being entrusted into the care of the person adopting the child by an authorised party, or within two years of their arrival in Australia, eligibility for MIA may arise at the date of the child's death if the other requirements are satisfied.
FTB child
In order to be eligible for MIA currently, the relevant child must be an FTB child of the individual claiming MIA. However, for older overseas adopted children (and children adopted from overseas who die prior to reaching Australia), some factors which would prevent the child being an FTB child for MIA purposes are excluded. The child may be an FTB child despite the fact they are not undertaking full-time study or have income beyond the cut-off amount for FTB purposes. The child may also be an FTB child despite the fact they or someone on their behalf is receiving social security payments or payments under a prescribed educational scheme.
Eligible for family tax benefit
In order to be eligible for MIA, the individual claiming MIA must be eligible for family tax benefit in respect of the FTB child adopted from overseas. As for current MIA, the individual will be taken to be eligible for family tax benefit in respect of the child despite the fact their rate of family tax benefit is nil.
Rate of MIA
Currently, MIA is a single payment. However, after the present amendments to MIA, half the current rate will be payable in respect of a child aged under two, or in respect of a younger overseas adopted child before age four. Additionally, the amount of MIA paid will be half the total rate of MIA where a child dies under age five, and a half amount of MIA has already been paid in respect of the child. The rate of MIA will be calculated on the date the Secretary's determination that MIA is payable is made.
An exception to the payment of only half rate applies where MIA eligibility is claimed for a child between ages four and five, and no previous half payment of MIA has been made in respect of the child. In this case, the amount of MIA is the full rate.
MIA paid in respect of an older overseas adopted child will be the full rate of MIA.
Eligibility for MIA in respect of children under age four may arise under a number of provisions. Where a half amount of MIA has been paid in respect of a child while the child is under four (whether under the domestic or overseas adoption-related eligibility provisions) no further half amount under those provisions may be paid. A further half amount may become payable under the provisions relating to children aged four or more.
Overall, no more than two half payments or one full payment of MIA may be made in respect of a child.
MIA claim periods
The periods set out in the Family Assistance Administration Act within which an effective claim for MIA may be made will generally match the period during which eligibility for the payment may be established. Claims upon the death of a child must be made by the later of two years from the date of death, or five years after the birth of the child. For a stillborn child, the existing two-year period from delivery during which a valid claim may be made is extended to five years.
Date of determination of MIA claim
This amendment expands the circumstances in which the determination of a claim for MIA must be delayed. The Secretary must hold a claim for determination at a later date if, at the time the claim is made, the claimant is not eligible for MIA, but the child is an FTB child of the claimant, and the claimant is eligible for family tax benefit in respect of the child, disregarding rate. (The definition of FTB child is modified for this purpose for older overseas adopted children, as set out above at 'FTB child'.)
The claim is held either until the date the claimant becomes eligible for MIA, or to the last date at which eligibility for MIA could be established, based upon the category of MIA eligibility claimed.
Transition
The new category of eligibility for MIA for children between ages four and five will be available at commencement to all children, regardless of their date of birth, provided MIA has not already been paid in respect of the child prior to commencement. MIA in respect of a child who dies aged under five will apply to deaths occurring on or after commencement.
Where a child adopted from overseas arrived in Australia on or after 1 July 2006 and before 1 January 2009, the claimant will have until 31 December 2010 to establish eligibility for, and claim, MIA, and will be entitled to be paid one full rate of MIA. Where the child dies overseas, provided the death occurred from 1 July 2006 to before 1 January 2009, and after the child had been entrusted into the care of the adoptive parent, MIA eligibility may be established and claimed up to 31 December 2010.
Where a child adopted from overseas arrived in Australia on or after 1 July 2006 and before 1 January 2009, and the child dies prior to 1 January 2011, the claimant will have up to the later of 31 December 2010 or two years from the death of the child to claim.
Where a claim for MIA in respect of a child under two was made prior to commencement but has not been determined at commencement, the determination will be made on the basis of the new provisions, including the provisions as to rate. For such claimants, a second claim for MIA in respect of the child between ages four and five is deemed to have been made on 1 January 2009, in order to allow eligibility for the full amount of MIA to be eventually established.
The amendments made by this Schedule commence on 1 January 2009.
Explanation of the changes
Amendments to the Family Assistance Act
Item 1 amends subsection 39(1) to replace three cases of eligibility for MIA with reference to seven cases. The heading to the subsection is replaced by the heading 'Usual case'.
Item 2 inserts a new subsection 39(2A) described above under 'MIA in two payments', providing for the eligibility for MIA of children aged between four and five.
Item 3 substitutes 'third' for 'second' in subsection 39(3), now providing for the third category of eligibility for MIA (in relation to stillborn children).
Item 4 substitutes 'fourth' for 'third' in subsection 39(4), now providing for the fourth category of eligibility for MIA (where the child dies within two years of birth).
Item 5 substitutes a maximum age of five for age two in subsection 39(4) to extend eligibility for MIA to a child who dies under age five.
Item 6 adds to section 39 new subsections (5) to (10), described above under 'MIA eligibility for children adopted from outside Australia'. New subsection 39(5) covers younger overseas adopted children. New subsection 39(6) covers older overseas adopted children, with eligibility established if either of new subsections 39(7) and (8) is met. Subsection 39(7) deals with eligibility of older overseas adopted children who are alive within two years of their arrival in Australia, and subsection 39(8) deals with the death of an older overseas adopted child within two years of arrival in Australia. Subsection 39(9) provides for MIA eligibility upon the death of a child overseas aged under 16, after being entrusted into the care of a person adopting the child, but prior to the child arriving in Australia. Subsection 39(10) modifies the definition of FTB child for the purposes of paragraphs 39(7)(b), (8)(a) and (b), and 9(f).
Item 7 amends section 67 to move into new subsection 67(1) the current words providing for the total rate of MIA.
Item 8 makes the amendments to section 67 described above at the heading 'Rate of MIA'. New subsections 67(2), (3), (4) and (5) are inserted. New paragraph 67(2)(a) provides for a half rate of MIA in respect of children between ages 18 months and two years, children between ages four and five and younger overseas adopted children. New paragraph 67(2)(b) provides for a half rate of MIA in respect of the death of a child under five, where a half rate of MIA has already been determined to be paid in respect of the child either between ages 18 months and two years, or as a younger overseas adopted child.
Subsection 67(3) provides for a full rate of MIA to be payable in respect of a child between ages four and five where no previous half payment of MIA has been determined.
Subsection 67(4) limits the amount of MIA payable in respect of a child to one payment of MIA under subsection 67(1) or two half payments of MIA under subsection 67(2).
Subsection 67(5) prevents duplicate eligibility for MIA arising in relation to subsections 39(2) and (5), which both potentially cover children under age two.
Item 9 amends section 68 to extend sharing of MIA to the new categories of eligibility for MIA (apart from those dealing with the death of a child).
Amendments to the Family Assistance Administration Act
Item 10 repeals and replaces subsection 39(4) of the Family Assistance Administration Act, making the amendments described above at 'MIA claim periods'.
Item 11 repeals and replaces subsections 41(5) and (6), as described above at 'Date of determination of MIA claim'. New subsection 41(7) modifies the definition of FTB child for the purposes of section 41 for claims in relation to older overseas adopted children.
Application and transitional provisions
Items 12, 13 and 14 deal with the matters described above at 'Transition'. Item 12 deals with transition in relation to eligibility for MIA. Subitem 12(1) applies the new category of eligibility for children between ages four and five to children born before commencement, provided that no determination that MIA is payable has been made in respect of the child. Subitem 12(2) provides that MIA eligibility in respect of the death of a child under five applies where the death occurs on or after commencement.
Subitem 12(3) applies the eligibility provisions for younger overseas adopted children and older overseas adopted children to arrivals in Australia occurring on or after 1 July 2006, regardless of when the process for adoption commenced.
Subitem 12(4) applies eligibility in respect of living younger overseas adopted children to those children who arrived between 1 July 2006 and 1 January 2009, and allows the immunisation requirements to be met up to 1 January 2011.
Subitem 12(5) expands the coverage of subsection 39(6) for transitional purposes to include the death of a younger overseas adopted child who arrived in Australia on or after 1 July 2006 but prior to 1 January 2009.
Subitems 12(6) and (7) apply eligibility for older overseas adopted children to children who arrived in Australia on or after 1 July 2006 and before 1 January 2009, provided the immunisation requirements are met before 1 January 2011, or the child dies before 1 January 2011. As a result of subitem 12(5) above, eligibility will also arise for the death of a younger overseas adopted child prior to 1 January 2011 who arrived between 1 July 2006 and 1 January 2009.
Subitem 12(8) applies subsection 39(9) to children adopted from overseas in respect of deaths overseas occurring on or after 1 July 2006.
Item 13 deals with transition and application of the amount of MIA payable upon eligibility being established, either by an individual claimant, or in respect of a substitute individual claimant under section 40 of the Family Assistance Act upon the death of the original claimant prior to payment of MIA. Subitem 13(1) applies paragraph 67(2)(a), relating to payment of a half rate of MIA in relation to a child aged between 18 months and two years, to claims made before commencement which had not been determined by the Secretary at commencement, and to claims on or after commencement.
Subitem 13(2) provides for a full rate of MIA to be paid in respect of eligibility established for live younger overseas adopted children who arrived on a day before 1 January 2009, and ensures that only one such payment of MIA may be made in respect of such a child.
Subitem 13(3) makes it clear that, where MIA was determined to be paid in respect of a child prior to commencement, no further amount is to be paid in respect of the child after commencement.
Item 14 deals with transition and application in relation to claims for MIA. Subitem 14(1) deems a person who has made a claim for MIA prior to commencement, which has not been determined at commencement, to have made an additional claim for MIA on 1 January 2009 in respect of the child between ages four and five.
Subitem 14(2) extends the period within which an effective claim can be made to before 1 January 2011 for overseas adopted children (whether younger or older) who arrived before 1 January 2009, or who died overseas before 1 January 2009.
Subitem 14(3) applies the changed timeframes for making an effective claim for MIA to claims made after commencement.
Subitem 14(4) applies the changed rules for deferral of determinations of claims to claims made after commencement, or claims made before commencement which have not been determined before commencement.